In re Jonathan H. CA1/2 ( 2013 )

Filed 7/19/13 In re Jonathan H. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re JONATHAN H., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A135972
v.
JONATHAN H., (Contra Costa County
Super. Ct. No. J1101623)
Defendant and Appellant.
A supplemental juvenile wardship petition pursuant to Welfare and Institutions
Code section 602 alleged defendant had committed a number of crimes, including
conspiracy to commit a robbery (Pen. Code, § 182, subd. (a)(1))1 and petty theft (§§ 484,
488). The juvenile court denied defendant‘s motion to suppress his confession to the
police. At the conclusion of the jurisdictional hearing, the court found true seven
allegations of petty theft and one allegation of conspiracy to rob.
On appeal, defendant contends that the juvenile court erred when it denied his
motion to exclude his confession to the police because, according to defendant, his
confession was coerced and his waiver of his rights pursuant to Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda) was not voluntary. He also maintains that substantial
evidence did not support his convictions and that the juvenile court lacked subject matter
1 All further unspecified code sections refer to the Penal Code.
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jurisdiction over three of the petty theft convictions. We conclude that substantial
evidence did not support the true findings on two of the counts of petty theft but
otherwise affirm the jurisdictional and dispositional orders.
BACKGROUND
On May 3, 2012, a supplemental juvenile wardship petition pursuant to Welfare
and Institutions Code section 602 was filed alleging that defendant had committed in
count 1, felony conspiracy to rob (§ 182, subd. (a)(1)); in count 2, felony grand theft
(§ 487, subd. (a)); in counts 3 through 11, misdemeanor petty theft (§§ 484, 488); in
count 12, misdemeanor resisting a peace officer (§ 148, subd. (a)(1)); and in count 13, the
unlawful possession of a switchblade knife (§ 653k).
The juvenile court held a contested jurisdictional hearing on June 7, 2011. The
evidence at the hearing was that a man was seated in his car in the parking lot across from
In-Shape, a health club, shortly before 4:00 a.m. on November 15, 2011, when he spotted
two youths in hooded sweatshirts walking in the parking lot. The man observed the boys
stand behind a car belonging to the manager of the health club. The boys retreated
through the parking lot when another person approached the gym. The man in the car did
not see the faces of the two youths.
The police were called and Officer Mike Yaeger arrived at the health club parking
lot at 4:08 a.m. Two other officers also responded and they told Yaeger that they had
discovered two youths behind the ―car wash or gas station,‖ which was about 100 feet
from the health club parking lot. Yaeger walked to where the youths were being
detained. The youths were defendant and Taylor E. Yaeger found what appeared to be a
handgun and a ski mask in the nearby shrubbery. A further search of the shrubs disclosed
a Halloween mask of President Barak Obama and an 8-inch carving knife. A closer
inspection of the gun revealed that it was an altered rubber Airsoft B.B. gun. The officers
searched the boys and found nothing on them. None of the witnesses at the health club
was able to identify the youths.
The officers arrested defendant, who was 14 years old at the time. Defendant was
in the police station from the time of his arrest at 4:20 a.m., and was interviewed by
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Detective Peter Folena at 9:03 a.m. Folena was told that defendant had been arrested for
a curfew violation and that defendant had been stopped at the health club early that
morning. Folena read defendant his Miranda rights. Defendant agreed to speak.
Folena‘s interrogation of defendant in the police station lasted 30 to 45 minutes.
Folena did not believe that defendant had eaten anything between the time of his arrest
and the interrogation. Folena ended the interview at the station and then, after further
questioning while in the car, drove defendant to a fast-food restaurant to have something
to eat. The car interview ended at noon or 12:30 p.m.
After the trial court denied defendant‘s motion to suppress his statements to
Folena at the police station, Folena testified that defendant told him he received a phone
call from his friend Taylor during the evening of November 14, 2011; they agreed to
meet. Defendant snuck out of the house and took his mask of President Obama with him.
He met Taylor and Taylor gave him the choice of taking the kitchen knife or an Airsoft
B.B. gun; defendant took the B.B. gun.
During the interview, Folena told defendant that he had already talked to Taylor
and that he needed defendant to be honest. Folena told defendant that he knew that he
had robbed or attempted to rob some individuals and to break into some vehicles.
Defendant responded, ―Oh, yeah.‖
Defendant then told Folena that he and Taylor went to a grocery store to steal
food. He reported that they hid in the bushes at the rear of the store. They saw an older
woman and, while wearing their masks, they followed her to her home. She, however,
entered her home and eluded them. They were going to rob another person in the parking
lot of the grocery store but their plans were thwarted when an ―employee walked by and
spooked them.‖
The boys walked about a mile to a gas station near the health club, In-Shape.
They intended to rob individuals, but were unsuccessful. Defendant estimated that they
attempted to rob five persons but, for various reasons, failed. Defendant said they were
going to rob a female they spotted in the parking lot at In-Shape but they saw the police
car enter the parking lot and, thus, they hid in the bushes.
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Defendant mentioned that he had broken into a grey Honda Civic or Accord
earlier in the evening and had stolen a lighter and some cigarettes. Defendant claimed
that he had burglarized so many cars since the summer of 2011 that he had lost count; he
broke into them to get money.
Folena took defendant in his vehicle to get lunch and to question him further.
While driving around the City of Brentwood (Brentwood), defendant showed Folena the
cars that he had burglarized. Folena testified during voir dire that defendant did not
appear tired when he was driving him around.
As Folena drove around Brentwood, defendant pointed out the following cars as
vehicles that he had burglarized: A grey Honda Accord, a silver 2003 BMW, a blue
Toyota Tundra, a Dodge Magnum, a Jeep, a Dodge Durango, and a white sedan.
Meredith Nahm lived on the street where defendant identified the grey Honda Accord as
being a car he burglarized. She stated that her locked Honda had not been burglarized
but her unlocked Hyundai Santa Fe had been. Lynnette Torrez lived where defendant
identified the BMW that he burglarized. She stated that, in 2011 or early in 2012, her
unlocked Yukon was burglarized, but her locked BMW was not burglarized. Eric Yunck
resided on the street where the blue Toyota Tundra was located, and he testified that in
2011 his Tundra was burglarized and the backseat television sets had been stolen. James
Brandt testified that when he lived on the street where defendant identified the Dodge
Magnum, a pack of cigarettes and a cigarette lighter were taken from his Ford Flex in
July or August 2011. John Hemenes lived on the street where defendant identified the
Jeep that he burglarized, and he asserted that in July 2011, a chrome grenade gear shift
knob was removed from his son‘s Jeep; change was taken from two other vehicles he
owned. Joy Scholtz confirmed that in July or August 2011, money was stolen from the
ashtray of her Dodge Durango, and that she lived on the street where defendant indicated
he had burglarized a Dodge Durango. Steven Padgett lived on the street where defendant
identified the white sedan that he had burglarized. Padgett testified that during July or
August 2011, his white-topped Suzuki Sidekick was burglarized, and a garage door
opener, prescription medication, and a stereo faceplate were stolen.
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Folena admitted that car burglaries are common in the area where he had driven
defendant.
At the conclusion of a jurisdictional hearing, the juvenile court sustained the
petition as to seven of the petty theft allegations (counts 3, 4, 5, 8, 9, 10, and 11), and the
allegation of conspiracy to rob (count 1). The court granted the People‘s motion to
dismiss the other counts.
On June 21, 2012, at the dispositional hearing, the juvenile court continued
defendant as a ward of the court, removed him from the custody of his parents, and
ordered him placed at the Orin Allen Youth Rehabilitation Facility.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Voluntariness of Defendant’s Confession
A. The Law and Standard of Review
Defendant contends the juvenile court erred in denying his motion to suppress his
confession. He maintains that his confession was coerced and not voluntary and these
same law enforcement techniques made his waiver of his Miranda rights involuntary.
Defendant asserts the error requires reversal because it was not harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24, and thus violated
his constitutional federal and state rights to due process.
―A suspect, having been advised of his Miranda rights, may waive them ‗provided
the waiver is made voluntarily, knowingly and intelligently.‘ [Citation.]‖ (In re Norman
H. (1976) 64 Cal. App. 3d 997, 1001.) ―In general, a confession is the defendant‘s
declaration of his or her intentional participation in a criminal act. [Citations.] A
confession constitutes an acknowledgement of guilt of the crime charged. [Citations.]‖
(In re Shawn D. (1993) 20 Cal. App. 4th 200, 208.)
However, ― ‗[i]t long has been held that the due process clause of the Fourteenth
Amendment to the United States Constitution makes inadmissible any involuntary
statement obtained by a law enforcement officer from a criminal suspect by coercion.
[Citations.] A statement is involuntary [citation] when, among other circumstances, it
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―was ‗ ―extracted by any sort of threats . . . , [or] obtained by any direct or implied
promises, however slight . . . .‖ ‘ ‖ [Citations.] Voluntariness does not turn on any one
fact, no matter how apparently significant, but rather on the ―totality of [the]
circumstances.‖ [Citations.]‘ [Citation.]‖ (People v. Leonard (2007) 40 Cal. 4th 1370,
1402.)
― ‗The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant‘s confession was voluntarily made.‘ ‖ (People v. Williams
(2010) 49 Cal. 4th 405, 436.) ―The test for determining whether a confession is voluntary
is whether the questioned suspect‘s ‗will was overborne at the time he confessed.‘
[Citation]‖ (People v. Cruz (2008) 44 Cal. 4th 636, 669; see also Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 226.) ― ‗A finding of coercive police activity is a
prerequisite to a finding that a confession was involuntary under the federal and state
Constitutions. [Citation.]‘ ‖ (Cruz, at p. 669.) In determining whether a minor‘s
confession is voluntary, we consider a number of factors including: the characteristics of
the minor, including his or her maturity, education, physical condition, mental health,
emotional state, and prior experience with the criminal justice system; and the
circumstances of the questioning, including the location, length and continuity of the
interrogation and any police coercion, threats, promises of leniency, lies or deception.
(People v. Boyette (2002) 29 Cal. 4th 381, 411; In re Shawn D., supra, 20 Cal.App.4th at
p. 209.) ―Threats, promises, confinement, lack of food or sleep, are all likely to have a
more coercive effect on a child than on an adult.‖ (In re Aven S. (1991) 1 Cal. App. 4th
69, 75.)
― ‗In assessing allegedly coercive police tactics, ―[t]he courts have prohibited only
those psychological ploys which, under all the circumstances, are so coercive that they
tend to produce a statement that is both involuntary and unreliable.‖ [Citation.]‘
[Citation.] [¶] A confession is not involuntary unless the coercive police conduct and the
defendant‘s statement are causally related. [Citations.]‖ (People v. Williams, supra, 49
Cal.4th at p. 436.)
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―We review independently a trial court‘s determinations as to whether coercive
police activity was present and whether the statement was voluntary. [Citation.] We
review the trial court‘s findings as to the circumstances surrounding the confession,
including the characteristics of the accused and the details of the interrogation, for
substantial evidence. [Citation.] ‗[T]o the extent the facts conflict, we accept the version
favorable to the People if supported by substantial evidence.‘ [Citation.]‖ (People v.
Guerra (2006) 37 Cal. 4th 1067, 1093.)
B. Defendant’s Confession and Waiver of Miranda Rights Were Voluntary
Defendant maintains that his statements in the police station and in the police car
were coerced. His confession was coerced, according to defendant, because he is a
juvenile and was in the police station for five hours before he was questioned. During
that period he did not have the opportunity to call his parents, an attorney, or another
adult and had nothing to eat. He was questioned for an additional one to two hours while
in the police car. These same factors, defendant maintains, invalidated his waiver of his
Miranda rights.
The record establishes that defendant was arrested shortly after 4:00 a.m. and then
questioned for 30 to 45 minutes just after 9:00 a.m. The record contains no evidence
related to the reason for the delay. The second interview in the police car started after
10:00 a.m. and lasted until noon or 12:30. Thus, Folena interviewed defendant for a total
of three to four hours after defendant had been in custody for five hours.
Based on the totality of the circumstances, and not one particular fact, we
conclude that defendant‘s admissions were voluntary. Defendant emphasizes that he was
young and had limited intelligence as evidenced by his poor grades in school. (See
Gallegos v. Colorado (1962) 370 U.S. 49, 54 [confession involuntary where 14-year-old
was held incommunicado for five days]; J.D.B. v. North Carolina (2011) ___ U.S. ___
[131 S. Ct. 2394, 2401-2403] [a juvenile‘s age plays a role in determining whether a
juvenile understands he is free to leave when interrogated by police].)
Although defendant‘s youth is a factor, his age did not preclude him from
understanding and being capable of waiving his rights. (In re Charles P. (1982) 134
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Cal. App. 3d 768, 772.) A determination regarding the voluntariness of a confession does
not ―turn[] on the presence or absence of a single controlling criterion . . . .‖
(Schneckloth v. Bustamonte, supra, 412 U.S. at p. 226.) The court must carefully
scrutinize all of the surrounding circumstances. (Ibid.) Here, defendant was young, but
his extensive involvement with the criminal system, including more than 10 arrests
before his current arrest on April 18, 2012, indicated that his Miranda waiver was
knowing and voluntary. (People v. Lewis (2001) 26 Cal. 4th 334, 384.)
Furthermore, there is no evidence that defendant‘s mental condition made it
difficult for him to understand the meaning and effect of his confession.2 Defendant was
14 years old and in the ninth grade. Although the record establishes that he was failing
many of his classes at the time of his arrest and had disciplinary problems as well as a
high level of truancy, the record does not show that his intelligence is below normal.
After his detention on April 18, 2012, defendant earned grades of two C‘s, two B‘s, and
one A during the third quarter of his school year, and grades of two B‘s and three A‘s
during the fourth quarter of his school year. Thus, the record shows that defendant‘s
intellectual development is average or above average. Additionally, the record
establishes that he has no health issues and was not taking any prescribed medication.
Defendant complains that he was not fed, had to wait five hours in the police
station, and was not permitted to call an attorney, his parents, or another adult. (See
Haley v. Ohio (1948) 332 U.S. 596, 604 (Haley).) Moreover, he was then taken in the
police car and questioned further for a total interrogation of three to four hours.
We disagree that the circumstances of the interrogation showed coercion. Only
one detective questioned defendant, and the initial questioning took only about 45
minutes. The questioning in the car was longer, but this questioning for an additional two
or two and one-half hours was not unduly long; defendant points to no evidence
indicating that he was fatigued. (Cf. People v. Alfieri (1979) 95 Cal. App. 3d 533, 537,
2 Defendant does not argue that he did not understand his Miranda rights, but
argues that his waiver was involuntary for the same reasons that his confession was
involuntary.
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545 [confession of a 17-year-old youth with borderline intelligence and subsequently
psychiatrically diagnosed as highly suggestible after being in custody for 36 hours and
interrogated for 20 hours was involuntary].) Folena did not threaten defendant and there
were no express or implied promises that would make defendant think that, if he
confessed, he would receive more beneficial treatment. Folena did not lie to defendant.
The record contains no evidence of any intimidating behavior by Folena. Defendant did
not eat until noon, but there was no evidence that defendant was hungry earlier or asked
for food. Folena testified that defendant did not appear fatigued when he was in the car.
The present case differs significantly from the cases cited by defendant. (Haley,
supra, 332 U.S. 596; Crane v. Kentucky (1986) 476 U.S. 683 (Crane).) In Haley, the
United States Supreme Court held that a 15-year-old‘s confession was not voluntary
when he had been questioned for five straight hours––from midnight to 5:00 a.m.––by
five or six officers working in relays and was not advised of his right to remain silent or
the right to an attorney until after he confessed. (Haley, at pp. 598, 600-601.) After his
confession, he was not permitted to see an attorney for three days and his mother for five
days. (Id. at p. 598.) In contrast, here, the interrogation was by a single officer and did
not last five hours; rather defendant had to wait five hours until he was interrogated.
Additionally, defendant was provided his Miranda rights at the very beginning of his
interrogation.
Crane, supra, 476 U.S. 683, another case cited by defendant with almost no
analysis, is also unavailing. The present case is not legally or factually similar to Crane.
In Crane, a 16-year-old defendant testified at a pretrial motion to suppress that he had
been detained in a windowless room for a protracted period of time, that he had been
surrounded by as many as six police officers during the interrogation, that he had
repeatedly requested and been denied permission to telephone his mother, and that he had
been badgered into making a false confession. (Id. at p. 691.) At trial, the court would
not permit the defendant to present evidence about the duration and physical
circumstances of the confession, ruling that the evidence was relevant only to the legal
issue of voluntariness. (Id. at p. 686.) The United States Supreme Court held that the
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trial court erred in excluding ―testimony about the environment in which the police
secured his confession‖ as this evidence was related to the reliability of the confession
and could be an integral part of the defense. (Id. at p. 691.)
In the present case, unlike the situation in Crane, supra, 476 U.S. 683, the court
heard the evidence regarding the circumstances of defendant‘s confession. Furthermore,
as already discussed, the record does not contain evidence of coercion. There is no
evidence that defendant asked to call anyone and only one officer, not multiple officers,
interrogated him. Furthermore, his actual interrogation was not for a protracted period of
time.
Defendant complains that he was not able to call his parents, another adult, or his
attorney. Defendant did not request to speak to an attorney. The record also lacks any
evidence indicating that he ever asked to speak to his parents or that an officer told him
that he could not speak to his parents.3 In any event, courts have declined to impose a
requirement that police advise minors of a right to speak with parents or to have a parent
present during questioning. (In re Aven S., supra, 1 Cal.App.4th at p. 76; In re John S.
(1988) 199 Cal. App. 3d 441, 445-446.)
Defendant cites no evidence in the record suggesting that the wait in the police
station caused him stress or that the delay was unreasonable, unnecessary, or for the
purpose of overcoming his free will. (See, e.g., United States v. Valenzuela-Espinoza
(9th Cir. 2012) 697 F.3d 742, 745, 751-752 [under the federal presentment rule,
defendant must be brought before a magistrate within six hours of arrest and confessions
in violation of this rule must be suppressed if the delay was unreasonable].) Nothing in
the record indicates that defendant suffered any adverse impact as a result of this wait.
3 In his reply brief, defendant argues that the police were required to notify his
parents about his detention and to inform him of his right to call them under Welfare and
Institutions Code section 627. The record is silent as to whether the officers complied
with Welfare and Institutions Code section 627. Even if the officers did not notify
defendant‘s parents as required by this statute, California law, as defendant
acknowledges, does not allow suppression of the confession as a remedy for violation of
this statute. (See People v. Lessie (2010) 47 Cal. 4th 1152, 1169.)
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There is no evidence that defendant was emotionally distraught, anxious, mentally
fatigued, or physically fatigued during the interview. Nothing in the record suggests that
defendant‘s will was overborne and there is no evidence that Folena was aggressive or
domineering.
Accordingly, we conclude that the juvenile court did not err in finding that the
prosecution demonstrated by a preponderance of the evidence that defendant‘s confession
and waiver of his Miranda rights were voluntary.
II. Sufficiency of the Evidence
A. Standard of Review
Defendant argues that insufficient evidence supported the juvenile court‘s findings
that he conspired to commit robbery. He also asserts that insufficient evidence supported
six of the seven petty theft allegations that the juvenile court found were true.
The standard of proof in juvenile court proceedings involving criminal activity is
the same as in adult criminal trials. (People v. Nguyen (2009) 46 Cal. 4th 1007, 1022.)
The People must prove beyond a reasonable doubt that the minor committed the offenses
alleged in the Welfare and Institutions Code section 602 petition. (Nguyen, at p. 1022.)
―In reviewing a claim for sufficiency of the evidence, we must determine whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime or special circumstance
beyond a reasonable doubt. We review the entire record in the light most favorable to the
judgment below to determine whether it discloses sufficient evidence—that is, evidence
that is reasonable, credible, and of solid value—supporting the decision, and not whether
the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the
evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support
of the judgment the existence of every fact the jury [or trier of fact] reasonably could
deduce from the evidence. [Citation.] If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.
[Citation.]‖ (People v. Jennings (2010) 50 Cal. 4th 616, 638-639.)
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B. Conspiracy to Commit Robbery
―Conspiracy is an inchoate crime. [Citation.] It does not require the commission
of the substantive offense that is the object of the conspiracy. [Citation.] ‗As an inchoate
crime, conspiracy fixes the point of legal intervention at [the time of] agreement to
commit a crime,‘ and ‗thus reaches further back into preparatory conduct than
attempt . . . .‘ ‖ (People v. Swain (1996) 12 Cal. 4th 593, 599-600.)
―The crime of conspiracy is defined in the Penal Code as ‗two or more persons
conspir[ing]‘ ‗[t]o commit any crime,‘ together with proof of the commission of an overt
act ‗by one or more of the parties to such agreement‘ in furtherance thereof. (. . . §§ 182,
subd. (a)(1), 184.) ‗Conspiracy is a ―specific intent‖ crime. . . . The specific intent
required divides logically into two elements: (a) the intent to agree, or conspire, and (b)
the intent to commit the offense which is the object of the conspiracy. . . . To sustain a
conviction for conspiracy to commit a particular offense, the prosecution must show not
only that the conspirators intended to agree but also that they intended to commit the
elements of that offense.‘ [Citation.]‖ (People v. Swain, supra, 12 Cal.4th at p. 600,
italics omitted.)
The target offense in the present case is robbery. ―The elements of robbery are (1)
a taking of personal property, (2) from the person or immediate presence of another, (3)
through the use of force or fear, (4) with an intent to permanently deprive the owner of
his property.‖ (People v. Kelley (1990) 220 Cal. App. 3d 1358, 1366.)
Defendant maintains that the juvenile court should not have found that he
conspired to rob because the evidence did not establish that he had the specific intent to
commit robbery. He maintains that no witness identified him and his admissions showed
that he changed his mind about robbing any person before attempting any robbery. He
asserts that his conduct demonstrated that he and his friend really did not intend to rob
anyone.
Contrary to defendant‘s argument, sufficient evidence established conspiracy to
commit robbery. The prosecution did not have to prove attempt (see, e.g., People v.
Swain, supra, 12 Cal.4th at pp. 599-600), as defendant seems to suggest. ― ‗[C]onspiracy
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may be proved through circumstantial evidence inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and during the alleged
conspiracy.‘ ‖ (People v. Gonzalez (2004) 116 Cal. App. 4th 1405, 1417, disapproved on
other grounds in People v. Arias (2008) 45 Cal. 4th 169, 182.) The conduct of defendant
and Taylor supported the inference that defendant and Taylor conspired to rob individuals
outside the grocery store and in the parking lots of the gas station and health club.
Defendant and Taylor had masks, a B.B. gun, and a knife, and hid in the bushes at the
rear of the grocery store. They did not actually rob any person, not, as defendant asserts,
because they had changed their minds about committing a robbery, but because they were
unsuccessful or an event or person temporarily thwarted their attempts. They changed
their minds about robbing a particular individual, but they never abandoned their plans to
rob someone. They were unsuccessful in robbing an older woman at the grocery store
because she was able to get into her residence before they were able to rob her and they
decided not to rob another person in the parking lot of the grocery store because an
―employee walked by and spooked them.‖ At that point, they did not cast aside their
desire to rob someone; rather, they went to the parking lot of In-Shape in search of a
victim to rob. They were deterred and remained hidden in the bushes only because they
saw a police car enter the parking lot.
―Withdrawal from a conspiracy requires ‗an affirmative and bona fide rejection or
repudiation of the conspiracy, communicated to the coconspirators. [Citations.]‘ ‖
(People v. Sconce (1991) 228 Cal. App. 3d 693, 701, quoting People v. Crosby (1962) 58
Cal. 2d 713, 730-731.) Here, defendant and Taylor never disavowed their plans to rob a
person.
As already noted, on appeal all inferences are drawn in favor of the judgment.
(People v. Rodriguez (1999) 20 Cal. 4th 1, 11.) The evidence in the record establishes
that defendant and Taylor had masks to conceal their identities and had a B.B. gun and
knife. Based on their mutual agreement they intended to rob people, and orchestrated
their plan for doing so. They did not actually attempt to rob any person, not because they
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abandoned their plan to rob someone, but because an event or situation deterred or scared
them from robbing the targeted individual.
C. Petty Theft
The juvenile court found that defendant committed seven counts of petty theft.
The elements of petty theft are the following: ―(1) the defendant took possession of
personal property owned by someone else; (2) the defendant did so without the owner‘s
consent; (3) when the defendant took the property, he or she intended to deprive the
owner of it permanently; and (4) the defendant moved the property, even a small
distance, and kept it for any period of time, however brief.‖ (People v. Catley (2007) 148
Cal. App. 4th 500, 505.)
Defendant challenges the juvenile court‘s findings of petty theft on counts 3, 5, 8,
9, 10, and 11; he does not challenge the finding of petty theft on count 4.
Defendant argues that the record contains no evidence that he burglarized Torrez‘s
white Yukon (count 3). Defendant never admitted to breaking into a white Yukon, and
the items reported missing did not match the items defendant stated that he took.
Defendant told Folena that he burglarized a silver BMW on Madrone Place in
Brentwood. He told Folena that he stole ―some Hot Cheetos, sour patch kids, and
cigarettes.‖ Torrez testified that she lived on Madrone Place and owned a BMW. She,
however, stated that her BMW was not burglarized. Her unlocked Yukon was
burglarized in late 2011 or early 2012, and a DVD player, TV screens, and loose change
were removed.
We agree that this evidence was insufficient to support an inference that defendant
stole the electronic equipment and cash from the white Yukon. The record does not
contain evidence ―that is reasonable, credible, and of solid value‖ from which ―a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‖
(People v. Stanley (1995) 10 Cal. 4th 764, 792-793.) Defendant‘s statements to Folena
about the burglary of the BMW on Madrone Place did not match Torrez‘s testimony that
her white Yukon had been burglarized.
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Defendant also challenges the finding on count 10 that he burglarized the blue
Toyota Tundra that belonged to Yunck. Folena drove defendant on Surrey Way in
Brentwood, and defendant told him that he removed small televisions that were mounted
on the rear of the headrests in the Toyota Tundra. Yunck testified that his black Tundra
had been parked in the driveway of his residence on Surrey Way in 2011 when it was
burglarized. He explained that several televisions for a car were taken out of the vehicle,
as well as cables.
Defendant argues that the evidence regarding the burglary of the Toyota Tundra
was insufficient because of the discrepancy in the color of the car and the vagueness
regarding the time of the theft. We conclude that the evidence regarding count 10 was
sufficient. Defendant admitted removing the televisions from the vehicle and may not
have remembered also removing cables. Defendant identified the make of the vehicle.
Given that defendant said he burglarized cars in the early-morning hours the juvenile
court could infer that defendant was unable to distinguish between a blue and black
vehicle in the darkness. Solid, credible evidence linked defendant to the burglary as he
admitted removing portable television sets from a Toyota Tundra parked on Surrey Way
and the owner confirmed that during the period defendant admitted he was burglarizing
vehicles, his Toyota Tundra parked on Surrey Way was burglarized and portable
televisions, among other smaller items, were removed.
The juvenile court found that defendant burglarized the Hyundai Santa Fe owned
by Nahm (count 5). Defendant contends that the evidence did not support this finding as
he did not claim to have burglarized a Hyundai Santa Fe, and the record contained no
evidence connecting him to that crime.
The record indicates that defendant identified a grey Honda Accord that was
parked on Woodsong Lane as a vehicle that he burglarized. He could not remember
whether he removed anything from the vehicle. Nahm, who lived on Woodsong Lane,
testified that she owned a grey Honda Accord, but it had not been burglarized. Her
Hyundai Santa Fe was burglarized and a navigator system, sunglasses, and a sunglass
case had been removed.
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We agree the record lacks reasonable and credible evidence that defendant
burglarized the Hyundai Santa Fe. The People argue that defendant was simply mistaken
that he burglarized the Honda, but had actually burglarized the Hyundai. The mere fact
that defendant was burglarizing cars on Woodsong Lane in 2011 is not sufficient
evidence to prove that he burglarized the Hyundai Santa Fe when there is no reliable
evidence connecting him to the burglary of that vehicle.
The juvenile court found that defendant burglarized a Dodge Magnum that
belonged to Brandt (count 8). Folena testified that defendant told him that he removed
$70, cigarettes, and a lighter from a Dodge Magnum on Sarah Street. Brandt testified
that he lived on Sarah Street and that a pack of cigarettes, a cigarette lighter, and $60 in a
white envelope, as well as possibly other loose dollar bills in the center console were
removed from his Ford Flex. Defendant admits that the address of the burglarized car
and the items removed from the car matched the statements he made to Folena, but he
claims the evidence was insufficient because he said he burglarized a Dodge Magnum
and Brandt stated that his Ford Flex was burglarized in July or August 2011.
We conclude that the evidence supported a finding of petty theft on count 8.
Defendant may not have remembered the make of the vehicle correctly, but he recalled
that he removed specific items from a vehicle on Sarah Street. Brandt‘s testimony
adequately matched defendant‘s testimony to provide sufficient, credible evidence in
support of the trial court‘s finding.
Defendant also challenges the finding that he burglarized the Suzuki Sidekick that
belonged to Padgett (count 9). Defendant told Folena that he burglarized a white sedan
on Rosegate Drive and that he removed pills and a garage door opener. Padgett testified
that he lived on Rosegate Drive and that a garage door remote, prescription medication,
and a faceplate for a stereo were removed from his white-topped Suzuki Sidekick in July
or August 2011. Here, Padgett‘s testimony that he lived on Rosegate Drive and that
someone had removed prescription drugs and a garage door opener from his white-topped
vehicle was sufficient to connect defendant to the burglary since defendant admitted
taking these items from a white vehicle on Rosegate Drive.
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Finally, defendant contends the record contains insufficient evidence to support
the finding that he burglarized a Dodge Durango owned by Scholtz (count 11). Folena
drove defendant by a particular residence on Gristmill Drive and defendant stated that he
removed $2.00 in coins from a Dodge Durango at that address. Scholtz confirmed that
she lived at the residence on Gristmill and that she owned a Dodge Durango. She stated
that change was removed from the ashtray in her Dodge Durango and items were taken
from her two other vehicles.
Defendant maintains that because he said nothing about removing items from
Scholtz‘s other two vehicles, the evidence was insufficient to show that he removed
money from the Durango. We disagree. Defendant admitted removing money from a
Dodge Durango parked at a particular address and the owner of the vehicle and resident
of that address testified that money was taken from her Dodge Durango. This evidence
was sufficient to support the juvenile court‘s finding that the allegation in count 11 was
true.
Accordingly, we strike the findings of petty theft as to counts 3 and 5, and affirm
the true findings of petty theft as to counts 4, 8, 9, 10, and 11.
III. Jurisdiction
Defendant argues that the juvenile court lacked subject matter jurisdiction over
counts 3, 5, and 9, and claims that the record does not contain evidence that the burglaries
occurred in the State of California. (See People v. Thomas (2012) 53 Cal. 4th 1276,
1283.) As discussed above, we are striking the true findings for counts 3 and 5; thus, we
need to address this argument only as to count 9.
Defendant argues that a lack of jurisdiction renders the judgment void, but venue
―does not implicate the trial court‘s fundamental jurisdiction‖ and venue is not an
element of crime. (See People v. Posey (2004) 32 Cal. 4th 193, 206-208) In any event,
defendant‘s argument lacks merit. Defendant admitted removing items from a white
sedan parked at Rosegate Drive in Brentwood. This evidence was sufficient to establish
that defendant committed the petty theft in count 9 in California.
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DISPOSITION
The true findings as to the petty theft in counts 3 and 5 in the juvenile court‘s
jurisdictional order are stricken. The jurisdictional order is otherwise affirmed. The
dispositional order is affirmed.
_________________________
Haerle, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
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