Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. J192871, Francis M. Devaney, Judge.
HUFFMAN, Acting P. J.
The juvenile court adjudged D.J. a ward of the court under Welfare and Institutions Code section 602 based on a true finding he committed residential burglary (Pen. Code, §§ 459, 460) and granted him probation.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
D. appeals, contending the court erred by denying his motion to dismiss under section 701.1 because there was insufficient evidence he had the intent to commit burglary. We conclude the evidence was insufficient to support the true finding and therefore reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the actions of six minors, D., David D., Tanner C., Walter B., Remington G. and Andrew L. The minors skipped school, went to a park and then went to what some of them believed was David's house to get money. The house ended up being the P. residence, and it was burglarized by some of the minors. Four of the minors received deferred entry of judgment, and Andrew and D. contested the allegations in a trial before the juvenile court.
The prosecution's case-in-chief consisted of the following testimony: Joe Cook looked out his window and saw six individuals "sneaking around" his neighbor's house and "looking out of place." They came in groups of three and went down a side driveway to the back of his neighbor's house. Cook was concerned because his neighbor recently mentioned she was burglarized, and based on the time of day, he thought the individuals should be in school. Cook called his wife and told her he thought "kids" were breaking into the neighbor's house and then called the police. At the scene and in court, Cook identified D. and Andrew as two of the six people at his neighbor's house.
Officer McNamara responded to the call. She stopped Remington and Andrew near the P. residence. McNamara found a door at the back of the house slightly ajar. She found scrape marks near the door lock on the door jam. McNamara also found several rooms ransacked, with property lying about and drawers left open. She searched Andrew and found a cellular phone belonging to one of the residents and a pair of black mechanics gloves.
Officer Gay also responded to the call. Gay saw D. in handcuffs a few blocks away. At least one other minor was present. Gay conducted a pat-down search of D. and discovered a baggie containing a green leafy substance he believed was marijuana.
During the search D. made several statements, including denying taking part in a burglary, which were suppressed because the officers failed advise him of his rights under Miranda v. Arizona (1966) 384 U.S. 436.
Officer Atwood also responded to the call. When he arrived at the P. residence, he could see down the side yard and behind the property. He saw three young males and yelled, "Stop, police." They ran, and Atwood captured Tanner. Atwood was not sure whether Andrew or D. were the other two who ran.
After arrest, D. waived his rights under Miranda v. Arizona, supra, 384 U.S. 436, and spoke with officer Sweeney. D. stated he, Walter and Andrew skipped school and went to a park where he met three others, including David and Tanner. David said he needed to get money from his house before returning to school. They walked to David's house where they met up with the other minors. David initially approached the front door, but then stated they needed to enter through the back. D. walked to the back of the house with David and Tanner. David and Tanner went in, and David returned with money. D. did not think it was strange David would come out with money because David had a job. D. waited outside while David and Tanner were inside. D. stated he did not take anything, denied knowing that a burglary was in progress and denied entering the house.
The homeowner's daughter, Alyssa P., testified she did not know D. or Andrew, but did know David from school. A few days before the burglary, she and David went to her house because she forgot her keys. David said he could help her break into the house. Alyssa indicated she could get her mother's keys from work, but David said he knew how to get in. David took a screwdriver from the garage, stuck it into the door lock and "popped" the door open.
Homeowner Denise P. testified the police were at her house the night before the burglary for another break-in. Because of this, she made sure the house was securely locked when she left in the morning. The police telephoned her while she was at work and when she arrived at her house, she found the back door was ajar and a window was cracked. It looked like someone struck a screwdriver into the door lock to pry it open, leaving the lock frayed. Denise found her daughter's room ransacked, and found items missing from her own closet, including jewelry, watches and cellular telephones belonging to both her and her husband. She then went to the police station where she recovered her earrings and diamond pendant, her husband's cellular telephone and her daughter's wallet. Other items, such as wedding rings, watches, a tennis bracelet, about $800 in coins, an iPod and a digital camera, were never recovered.
At the close of the prosecution's case, counsel filed a motion to dismiss under section 701.1. The court granted the motion as to a misdemeanor possession of marijuana count (Health & Saf. Code, § 11357, subd. (b)) because there was no testimony there was a usable quantity of marijuana, but denied the motion as to the burglary count. The court adjudged D. a ward of the court based on the true finding he committed residential burglary and granted probation.
Later testimony at the hearing further established D. did not enter the residence and also corroborated David's story about the house being his. We do not summarize this evidence here, however, because D. appeals the motion to dismiss and we are therefore limited in our review to the prosecution's case-in-chief. (In re Stephen P. (1983) 145 Cal.App.3d 123, 128, disapproved on another ground in People v. Cuevas (1995) 12 Cal.4th 252, 275, fn. 5.)
DISCUSSION
In reviewing the sufficiency of the evidence to support a juvenile court judgment sustaining a section 602 petition, we consider whether, on the entire record, " '[a] rational trier of fact' " could have found appellant guilty beyond a reasonable doubt. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371; see also People v. Jones (1990) 51 Cal.3d 294, 314.)
Burglary is defined as follows: "Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (Pen. Code, § 459.) " ' "A person aids and abets the commission of a crime when he . . ., (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." [Citations.]' " (In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1358; People v. Beeman (1984) 35 Cal.3d 547, 560.)
Here, the prosecution presented no evidence D. entered the P. residence. There was also no evidence he took any item from the residence, or any evidence he had the intent to commit a felony. D. has established no rational trier of fact could have found he committed burglary. (In re Ryan N., supra, 92 Cal.App.4th at p. 1371.)
The prosecution also presented no evidence D. knew a burglary was going to happen, or that he assisted, encouraged or facilitated the commission of the burglary. David said he needed to get money from his house, entered the house while D. remained outside and returned with money. D. denied taking anything, knowing a burglary was in progress or entering the house. Although a neighbor witnessed D. and the other minors "sneaking around" and "looking out of place," and D. could have been one of the minors who ran, that evidence is insufficient to prove the prosecution's case against D.
In opposing the motion to dismiss, the prosecution summarized its evidence and theory of liability as follows:
[W]e believe that the burden has also been met in demonstrating that [D.] ditched school [and] was with five other individuals. They went to the park and then they all went to a friend's house, supposedly, who had to use a screwdriver and damaged the back door getting inside. The house was ransacked. Then he fled from the police, hearing the police were on the scene. Then when he was detained, he was with that friend whose house he was at. [ . . . ] And your Honor, we would submit on that.
The redacted sentence is a reference to a statement suppressed under Miranda v. Arizona, supra, 384 U.S. 436.
Without citation to the record, the People refer us to the same "evidence" on appeal. None of this establishes criminal liability. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460 ["[n]either mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor"]; In re Eduardo M., supra, 140 Cal.App.4th at p. 1361 [accessory liability requires something more than fleeing and denying guilt]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [antisocial or delinquent orientation is insufficient to support a declaration of wardship].)
Moreover, there was no evidence D. was present for the purpose of diverting suspicion, or to serve as a lookout, give warning of anyone seeking to interfere, direct aid to the other minors in making an escape from the scene of the crime or for any other purpose supporting liability as an aider and abettor. (See People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743-744.) We therefore conclude D. has established no rational trier of fact could have found he committed burglary. (In re Ryan N., supra, 92 Cal.App.4th at p. 1371.) Accordingly, the court erred by denying his motion to dismiss under section 701.1.
DISPOSITION
The true finding of residential burglary is reversed. The juvenile court is directed to dismiss the petition.
WE CONCUR: HALLER, J., O'ROURKE, J.