Opinion
F042566.
11-4-2003
In re ANGEL E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANGEL E., Defendant and Appellant.
Dale J. Blea, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant Angel E. contends insubstantial evidence supports the juvenile courts findings he possessed burglary tools with felonious intent (Pen. Code, § 466) and that he knew the wrongfulness of his actions (& sect; 26). We agree the record lacks substantial evidence of Angels intent and will reverse.
BACKGROUND
On December 10, 2002, 13-year-old Angel admitted committing a March 2002 petty theft by taking the property of another. The prosecution dismissed a remaining petty theft allegation and the juvenile court set a January 21, 2003, disposition hearing.
On December 18, 2002, the manager of a mobile home park in Dinuba observed Angel walking through the park around lunchtime. The manager said hello and asked Angel why he was there; Angel responded that he was " `just walking."
The manager received a telephone call the next day in the early afternoon from a resident complaining of three minors trespassing in the park. The manager and another resident drove around the area until they found Angel with two other minors. The manager asked the three what they were doing, and one of the youths responded, "`Were just walking, sir."
The manager told the minors that the park was private property and asked them to leave. The boys immediately complied as the manager followed them out of the park. The manager telephoned the police and described the three youths.
Two Dinuba police officers responded to the scene. After receiving permission to search the youths belongings, the officers found a multi-ratchet screwdriver, tennis shoes, and a knit cap in Angels backpack and a tire iron/pry bar and standard screwdriver in the backpack of one of his companions. The youths became hostile, arrogant, uncooperative, and refused to answer questions during interviewing at the police station.
Angels mother saw the multi-ratchet screwdriver in Angels backpack several months before the incident. Angel told his mother he used it to change the "trucks" on his skateboard. Angels mother explained that it was common for boys to trade trucks and colored wheels. She had seen her son use the tool before on the skateboard and had used it herself for the same purpose. She also explained that Angel had a learning disability and was a special education student.
After a January 2003 contested jurisdictional hearing, the juvenile court found Angel possessed burglary tools (§ 466), but that he did not trespass on the mobile home park (& sect; 602). The juvenile court adjudged Angel a ward of the court and placed him on six months probation under his parents custody.
DISCUSSION
Section 466 provides in relevant part that any person who possesses a "screwdriver ... or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle &# 8230; is guilty of a misdemeanor." Possession of burglary tools is a specific intent offense because it requires the mental state to commit the future act of breaking or entering into one of the enumerated locations. (See People v. Davis (1995) 10 Cal.4th 463, 518-519, fn. 15.) "Thus, the elements of the crime described in that section are possession and intent." (People v. Valenzuela (2001) 92 Cal.App.4th 768, 777.) Possession of a screwdriver, or other instrument or tool, "is lawful until it is intended to be used feloniously." (Ibid.)
Angel contends the record lacks substantial evidence that he possessed the screwdriver found in his backpack with the intent to aid him in breaking into buildings or vehicles as required under section 466. Angel is correct.
Intent is a question of fact that may be inferred from the circumstances. (People v. DeLeon (1982) 138 Cal.App.3d 602, 606.)
"In evaluating the sufficiency of the evidence on appeal, we must view the whole record in the light most favorable to the judgment below and presume in support of the judgment every fact which the trier of fact could reasonably deduce from the evidence. [Citation.] Before the judgment may be set aside for insufficiency of evidence, it must clearly be shown that upon no hypothesis whatever is there substantial evidence. [Citation.] Substantial evidence is evidence that is reasonable, credible, of solid value and reasonably inspires confidence in the judgment. [Citation.]" (People v. Bailey (1991) 1 Cal.App.4th 459, 462.)
Although substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom (In re James D. (1981) 116 Cal.App.3d 810, 813), evidence that merely raises a strong suspicion of guilt is insufficient to support a finding of criminal activity. (People v. Kunkin (1973) 9 Cal.3d 245, 250.)
In Cook v. Superior Court (1970) 4 Cal.App.3d 822, the defendants were indicted under section 466 with possession of a device commonly used by professional burglars to disassemble locks while staying in a hotel where burglaries had occurred. (Id . at p. 825.) In issuing a peremptory writ on a motion to set aside the indictment, the appellate court noted that the prosecution failed to present admissible evidence to the grand jury indicating that the defendants feloniously intended to break or enter into a building. (Id. at p. 829.) No admissible evidence led to the conclusion that the device had been used in a burglary, that defendants possessed stolen property, or that the defendants were in any way involved in the burglaries reported to the police. (Ibid.) Lacking admissible evidence of intent, the appellate court instructed the trial court to set aside the indictment under section 995. (Ibid.)
As in Cook, supra, the prosecution here failed to present any evidence indicating Angel planned, attempted, or committed any type of burglary or that he possessed stolen property. Instead, the evidence before the juvenile court showed only that Angel was inside a private, gated mobile home park on two school days. Angels two companions were carrying a screwdriver and a tire iron, while Angel carried a multi-ratchet screwdriver, a pair of shoes, and a knit cap in a backpack. According to his mother, Angel had been carrying the screwdriver in his backpack for several months and used it to change the trucks on his skateboard. Under these facts, the juvenile court reasoned:
"A screwdriver is specifically listed as one of the items that would constitute a burglary tool. A crowbar is also specifically listed. And this minor was in possession of one item. I think the issue here is whether or not he had the intent of using that tool that he had in a specific way, and thats to commit a — some sort of theft. And its listed in that section the types of thefts that were talking about. It could [be] a burglary, breaking in to a vehicle, breaking in to a home or a trailer or so forth. [¶] &# 8230; [¶] [I]t seems to me a little suspicious with respect to the tools. [¶] ... [¶] But I do believe that these minors were in possession of these tools with the intent of using them for the purpose of breaking in to either a vehicle or a car or something to take property. I do believe that the evidence with respect to Penal Code Section 466 as a misdemeanor has been shown true."
As the juvenile court noted, Angels possession of a screwdriver, along with his companions possession of a screwdriver and tire iron, may have raised a suspicion that Angel intended to commit a burglary. However, "Evidence which merely raises a strong suspicion of the defendants guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Here, the record is void of substantial evidence from which the juvenile court could reasonably find Angel intended to use the screwdriver in a felonious manner.
DISPOSITION
The judgment is reversed. The juvenile court is ordered to prepare an amended abstract of judgment and advise the appropriate authorities. --------------- Notes: Further statutory references are to the Penal Code.