Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NJ20423, Mark Frazin, Judge.
California Appellate Project, Jonathan B. Steiner, Executive Director, and Ronnie Dubertstein, staff attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Sonya Won, Deputy Attorney General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
The juvenile court sustained a petition alleging that appellant Shawn S. unlawfully drove or took a vehicle in violation of Vehicle Code section 10851, subdivision (a). The court found that appellant was a person described by Welfare and Institutions Code section 602, adjudged appellant to be a ward of the court, and placed him in Camp Community Placement Program for a minimum of six months and a maximum of four years and four months.
Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that there is insufficient evidence to support the juvenile court's finding that he unlawfully took or drove a vehicle. He also contends that this matter must be remanded to the trial court for the court to declare the offense to be a felony or misdemeanor. We remand for the declaration but otherwise affirm the trial court's orders.
Facts
On July 15, 2006, Carlos Parker dropped off his 2002 Jaguar XK-8 at a body shop on the corner of San Pedro and Rosecrans to be painted. He left a set of keys for the car with the body shop. The Jaguar was prepared for painting, and so did not have license plates, headlights, taillights or bumpers.
That night, Los Angeles County Sheriff's Deputy Patrick Escamilla was on patrol when he noticed a Jaguar being driven without lights, license plates or a bumper. He followed the car, which parked on Corlette Avenue. Deputy Escamilla saw appellant get out of the car. He walked up to him to warn or cite him for the various problems with the car. The deputy asked appellant if the Jaguar was his car. Appellant replied: "No." The deputy then asked if appellant knew who the owner was. Appellant again replied: "No."
Deputy Escamilla ran the vehicle identification number and discovered that the car belonged to Carlos Parker. Sheriff's deputies brought Parker to the location. He identified the Jaguar as his. Parker stated that he did not know appellant and had not given him permission to drive the car.
After being taken into custody, appellant told Deputy Escamilla that he was walking in an alley south of 135th Street and west of Avalon when he saw the Jaguar parked with the keys inside. He did not feel like walking, so he took the car to drive to his girlfriend's house.
Discussion
1. Sufficiency of the evidence
Appellant contends that there is insufficient evidence to support the trial court's finding that he unlawfully took or drove a vehicle because the evidence does not show that he had the intent necessary for the offense. We do not agree.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314, internal citations omitted.)
This same standard applies in determining the sufficiency of the evidence to support the true finding of a juvenile court. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
Vehicle Code section 10851 is violated when a defendant takes a vehicle with the intent to permanently or temporarily deprive its owner of possession. (People v. Garza (2005) 35 Cal.4th 866, 876.) Appellant contends that a good faith belief that a vehicle has been abandoned by its owner negates the intent required for a violation of section 10851. We will assume for the sake of argument that appellant is correct.
Abandonment of property means that the owner had voluntarily given up the item because he or she "no longer desires to possess it or assert any right or dominion over it and is entirely indifferent as to what may become of it or as to who may thereafter possess it." (Martin v. Cassidy (1957) 149 Cal.App.2d 106, 110.)
Here, there is simply no evidence that appellant had a good faith belief in abandonment. When stopped by the police, appellant made no mention of such a belief. Once in custody, he told police that he decided to take the car because he did not feel like walking. He offered no evidence of such a belief at trial.
Relying on People v. Russell (2006) 144 Cal.App.4th 1415, appellant contends that the state of the car would reasonably suggest to a passer-by that it had been abandoned by its owner. We do not agree.
The motorcycle in Russell was 23 years old. The owner had taken it to a parking lot near a repair shop because it had stopped running. He left it near the trash area of the repair shop. The defendant pushed the motorcycle away from the area where he found it. (People v. Russell, supra, 144 Cal.App.4th at pp. 1430-1431.) Here, although the Jaguar was missing lights, license plates and a bumper, it was only five years old. The engine worked. Appellant was able to drive the car. It was an expensive car to begin with, and clearly had some remaining value, perhaps substantial value. While it was located in an alley, alleys are quite often used for parking. There was no reason to think that the owner had abandoned it.
Appellant also contends that the juvenile court "impliedly agreed" that he had a good faith belief, but erroneously ignored this belief. We do not agree.
The court stated: "As to the minor's arguments regarding no knowledge that [the Jaguar] was anything other than a salvage vehicle, as a civilized society, because especially in a society by today's standards, if everybody just decided to pick up property that looked like it was abandoned, we would have a sorry state of affairs. There are rules and laws that apply to abandoned property."
"If the minor thought it was abandoned, he simply had to call the police and say, 'I think there is an abandoned vehicle,' and put a request. If it is not picked up by the true owner by a certain number of days, I think it is 30 days, he is entitled to take possession. He can't, on his own assume property that looks like it doesn't belong to anybody and take it."
We understand the court as saying that it did not believe the minor's argument that he believed the vehicle was abandoned, because someone who truly believed the car was abandoned would behave differently than appellant did. Specifically, the court believed that such a person would investigate whether the property was abandoned and would behave more openly in acquiring possession of the property.
In Russell, the defendant told police of his belief in abandonment and testified in court that he had such a belief. The Court in Russell still undertook a similar analysis, evaluating the defendant's conduct in determining whether the defendant had a good faith belief that the motorcycle was abandoned. Among other things, either before or shortly after taking the motorcycle, the defendant asked the nearest business if the motorcycle belonged to them and he later attempted to track down the registered owner of the motorcycle in the hope that he would sign over title. (People v. Russell, supra, 144 Cal.App.4th at pp. 1430-1431.) There is no comparable conduct by appellant in this case.
2. Declaration
Appellant contends, and respondent agrees, that this matter must be remanded to the trial court for it to declare the offense to be a felony or misdemeanor. We agree as well.
When a minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the juvenile court is required to declare the offense to be a misdemeanor or felony. The declaration must be "explicit." (In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204.) "[T]he requirement that the juvenile court declare whether a so-called 'wobbler' offense was a misdemeanor or felony . . . serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702." (Id. at p. 1207.) Neither describing the offense as a felony in the petition nor setting a felony level of confinement is adequate to comply with the declaration requirement. (Ibid.)
Here there is nothing in the record which indicates that the trial court was aware of or exercised its discretion to declare the offense a felony or misdemeanor. Accordingly, remand is required.
Disposition
The matter is remanded for the trial court to declare the offense to be a felony or misdemeanor. The court's orders are affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.