Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from an order of the Superior Court of Los Angeles County Super. Ct. No. YJ29518, Stephanie M. Davis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Center for Juvenile Law and Policy and Michael Shultz, 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, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
A.B. appeals from the order declaring him a ward of the court (Welf. & Inst. Code, § 602) by reason of his having committed an attempted burglary. He contends the trial court erred in denying his section 701.1 motion to dismiss for insufficiency of the evidence. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
PROCEDURAL BACKGROUND
A section 602 petition was filed on October 19, 2006, alleging appellant had committed an attempted second degree robbery of Miguel Vargas (count 1) and an attempted second degree burglary of the Continental Market (count 2). Appellant and Cesar O., another minor with whom appellant was alleged to have acted, had a joint adjudicatory hearing. At the close of the petitioner’s case, the juvenile court dismissed the attempted robbery count (count 1) pursuant to appellant’s section 701.1 motion, but denied the motion as to the attempted burglary count (count 2), finding sufficient circumstantial evidence of intent to commit a larceny or some other felony inside the market.
On January 8, 2007, the juvenile court sustained count 2 as to both minors. It denied appellant’s request to reduce the charge to a misdemeanor and placed both minors on probation.
Appellant filed a timely notice of appeal.
STANDARD OF REVIEW
In a juvenile proceeding, we “ ‘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.’ [Citation.] ‘To warrant rejection of a witness’ testimony that has been believed by the trier of fact, there must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions. [Citation.] Conflicts and even testimony subject to justifiable suspicion do not justify a reversal, for it is the exclusive province of the trier of fact to determine the credibility of a witness. [Citations.]’ [Citation.]” (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.)
FACTS
A. The People’s Case
The Continental Gourmet Market is located on Prairie Avenue in the City of Hawthorne. There is one parking lot in front of the market and another on the north side.
Having just returned from his lunch break, market employee Miguel Vargas was sitting in his parked car in front of the market about 2:00 p.m. on October 17, 2006, when he saw Cesar O. riding a bicycle back and forth in front of the market. After Cesar O. made several passes, another young male came along; Cesar O. and this second male were together for a few minutes before Cesar O. gave the bicycle to the second male. The second male took the bicycle away while Cesar O. remained standing in front of the market. When Vargas got out of his car and went into the market about 2:30 p.m., Cesar O. was still standing there. The next time Vargas saw Cesar O. was after Cesar O. had been detained by the police.
Sometime after 2:30 p.m., Rodolfo Zarate was stopped at a red light on northbound Prairie just before El Segundo when his attention was caught by two people walking toward the Continental Gourmet Market: one was wearing a hood and the other had a bandana around his face. About three steps before they reached the door to the market, these two people crouched down and looked from side to side while continuing to move toward the door. The hooded person was behind the masked person when the masked person grabbed the door and opened it slightly. The masked person then turned away from the door, pulled down his mask, said something to his hooded companion, and started walking up the street. Zarate next saw the door to the market open and a police officer walk out with his weapon drawn. Both the masked person and the hooded person complied with the officer’s direction to get on the ground. Zarate did not know whether the hooded person or the masked person had been holding anything in their hands. Everything happened in an instant and Zarate continued to his destination without stopping. But when he was driving on Prairie in the opposite direction on his way back a little later, Zarate noticed several police cars in front of the market, and he stopped to tell them what he had seen.
Officer Chris Hoffmann of the Hawthorne Police Department was familiar with appellant and Cesar O. from having seen them in the neighborhood a number of times; appellant and Cesar O. were sometimes together on these occasions and sometimes with other people. About 3:00 p.m. on October 17, 2006, Hoffmann and his partner, Espinoza, were in the Continental Gourmet Market getting lunch, having parked their patrol car on the side of the market. While standing at the sandwich counter, Hoffmann glanced out the front window and saw appellant and Cesar O. approaching the market’s glass double doors. The fact that Cesar O.’s face was concealed by a bandana tied above his nose and appellant was adjusting the hood of his sweatshirt to conceal his identity made Hoffmann suspicious that they intended to rob the store. Hoffmann saw Cesar O. place his hand on one of the door handles. Hoffmann could see that appellant did not have a weapon in either hand, but he could not see Cesar O.’s left hand. After telling his partner what he suspected, Hoffmann drew his weapon and both officers ran to the door. Hoffmann’s prior contacts with appellant and Cesar O. had been “cordial and nonchalant,” but this time, when Hoffmann made eye contact with appellant as Hoffmann was running out of the market, appellant and Cesar O. reacted differently. Cesar O. turned away from the door and pulled off his bandana. Pushing the door open, Hoffmann pointed his weapon at appellant and Cesar O. and instructed them to get on the floor.
After appellant and Cesar O. were detained and backup officers arrived, another officer directed Hoffmann’s attention to two metal pipes that were discovered on the curb just outside the door to the market, three inches from where Cesar O. had been lying on the ground.
The parties stipulated that, at the time they were detained, appellant had $5 on his person and Cesar O. had no money.
After the People rested, appellant moved to dismiss both counts of the petition. The juvenile court denied the motion as to the attempted burglary but sustained it as to the attempted robbery finding insufficient evidence of “intent by means of force or fear to take the personal property of another.”
B. Appellant’s Case
The parties entered into the following, second stipulation: After appellant and Cesar O. were arrested, Hoffmann booked a video cassette from a surveillance video recording machine located outside the market into evidence; the machine recorded the area in front of the door to the market. Wes Dooley, a recognized expert in the field of audio/video forensics, determined that the videotape inside the cassette was damaged; it had been severed approximately two minutes after the point where the minors were arrested and had been mended with clear tape; it appeared to Dooley that the tape had been cut on either side of the break to facilitate mending; Dooley repaired the videotape and reproduced it digitally. The DVD presented to the court “is a true and accurate copy of all relevant images contained in the original video tape” booked into evidence by Hoffman.
The DVD of the tape was introduced into evidence and viewed by the juvenile court. In addition, still photographs printed from the DVD were also introduced into evidence.
Appellant argued that the DVD established three things. First, it was “abundantly clear from the video that at no time did [A.] have his hood in a position to conceal his face, notwithstanding the conclusion or the inference that he was adjusting it.” Second, although the video showed appellant had been carrying one of the metal poles, it was “abundantly clear that he dropped the pole long before he gets to the front of the store. It’s a very close distance, but it is clearly not in his hands. . . . [A.] never had a pole in his hand when he approached that store.” A.’s counsel concluded, “And the third thing is that the conclusion that he was furtively moving as he approached, that in itself is an inference. Okay, the question is what did he do when he approached the store. And the court has in its possession the video. What he did was he dropped the pole. That is what has been described as the furtive movement.”
C. The Juvenile Court’s Findings
The juvenile court sustained the attempted burglary count, finding “that the minors were acting in concert, that they attempted to approach the store. They went to approach the store. And with Cesar O. having the bandana on his head and A. also attempted to approach the store, the reason that the attempt was stopped and diverted is because at the very same time that Officer Hoffmann is exiting the store after he sees them outside the store. So their effort to enter the store was thwarted by Officer Hoffmann. But the court finds based on the evidence presented that the minors did attempt to enter the store and that their intention to enter the store was to commit a larceny or felony, to steal something out of the store. And, therefore, count 2, as to both minors is found to be true beyond a reasonable doubt.”
At the request of appellant’s counsel, the court clarified that it “did not infer that [appellant] had a pipe in his hand when he was standing in front of the store.” It concluded “that each minor bent down at the location where the pipes were later located.”
DISCUSSION
Appellant contends the trial court erred when it denied his motion to dismiss the attempted burglary count. He argues that there was insufficient evidence to support a finding that appellant attempted to enter the market with the requisite intent. We disagree.
Second degree burglary, as relevant here, is defined as entering into a store with the intent to commit larceny or any felony. (Pen. Code, §§ 459, 460, subd. (b).) “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Pen. Code, § 21a.) The element of intent “ ‘is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.’ [Citations.]” (People v. Falck (1997) 52 Cal.App.4th 287, 299.) “ ‘[I]f the evidence is sufficient to justify a reasonable inference that the requisite intent existed, the finding of its presence in a particular case, may not be disturbed on appeal.’ [Citation.]” (People v. Michaels (1961) 193 Cal.App.2d 194, 199.)
Here, the following evidence supported the juvenile court’s findings:
First, a reasonable inference from the evidence that Cesar O. was seen riding a bicycle back and forth in front of the market was that he had been “casing” the market;
Second, from Zarate’s testimony that he saw appellant and Cesar O. “walking around, pacing” in front of the market, it can reasonably be inferred that appellant and Cesar O. were together, that day;
Third, it was undisputed that Cesar O.’s face was covered by a bandana. It can also be reasonably inferred from Zarate’s testimony that appellant’s hood was “all the way up over his head” and it “was covering his entire head,” that appellant was using his hood to try to conceal his identity;
Fourth, from evidence of the furtive manner in which Cesar O. and appellant approached the door to the market, it can reasonably be inferred that they had some nefarious purpose in mind;
Fifth, and finally, from the evidence that Cesar O. and appellant abruptly turned away from the market just as they were about to enter, it can reasonably be inferred that the appearance of the police officers thwarted that purpose.
As appellant’s counsel conceded at the earlier motion to dismiss: “One of the most common crimes that I have seen involved in this system is where kids go into a store like that, grab a six-pack and run. And all the circumstantial evidence that has been presented by the prosecution is consistent with that theory that that crime occurred as well. And, in fact, more consistent with that than the theory of conclusion that they were going in there to rob somebody.”
We agree that a reasonable inference from all these circumstances, taken together, is that appellant intended to commit at least a larceny inside the market. The evidence was, thus, sufficient to support an attempted burglary.
Defendant’s reliance on People v. Acevedo (2003) 105 Cal.App.4th 195 (Acevedo) for a contrary result is misplaced. In that case, the defendant was convicted of felony evasion of a pursuing police officer. (Veh. Code, § 2800.2, subd. (a).) An element of that offense is that the pursuing police car was exhibiting at least one lighted red lamp. (Veh. Code, § 2800.2, subd. (a)(1).) We found the evidence was insufficient to support the conviction because, although the pursuing officer testified he activated the emergency lights and siren, he did not testify that any of the emergency lights were red. Acevedo is inapposite because in that case there was no evidence as to an element of the offense – the color of the pursuing vehicle’s emergency light – and the trier of fact was not entitled to speculate on the point. Here, by contrast, there was substantial circumstantial evidence from which the trier of fact could infer that the minor intended to commit a larceny or some other felony inside the market.
We note that oral argument on appeal was by certified law student Iris Roe. We compliment her on her presentation.
DISPOSITION
The order of wardship is affirmed.
We concur: COOPER, P. J., EGERTON, J.
A Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.