Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from orders of the Superior Court of Los Angeles County, No. PJ37676. Jack Gold, Commissioner.
Tara K. Allen, 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, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
A.P. (appellant) appeals from the order continuing him as a ward of the juvenile court (Welf. & Inst. Code, § 602) after a finding that he had committed second degree robbery (Pen. Code, § 211) and placing him in the short-term camp program. The juvenile court made the additional finding that the maximum theoretical term of confinement was five years eight months.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Appellant contends that (1) the evidence is insufficient to support a finding of second degree robbery as he lacked the larcenous intent that is an element of robbery; and (2) the juvenile court abused its discretion by ordering him placed in the short-term camp program.
FACTS
The Adjudication Evidence
At about 1:50 p.m. on August 14, 2007, B.R., age 13 at the time of the adjudication, rode his blue Diamondback BMX bicycle to the Video Depot Store on Lyons Avenue in Los Angeles County. B.R. had owned the bicycle for about a year and a half, and it had been given to him by a neighbor named Arturo.
As B.R. rode past the Pizza Hut, appellant approached and said, “Nice bike.” Then, outside the video store, appellant grabbed B.R.’s bicycle and said it looked “a lot like his.” Then he told B.R. that he “thinks about stealing it.” B.R. took his bicycle inside the video store with him. Five minutes later, as B.R. left the store, appellant grabbed the bicycle and said, “This is my bike.” B.R. told him, “No, it’s not.”
Appellant hit B.R. in the jaw with his fist, which caused B.R. to bleed. Appellant took the bicycle and quickly rode off on it. B.R. said that he let go of the bicycle because he was afraid and because the blow left him in “shock.”
Immediately after the robbery, Los Angeles County Deputy Sheriff William Cordero responded to the video store. B.R. had been crying and appeared to be frightened. He had a small laceration on his lip. The deputy’s investigation revealed that appellant had just filled out an employment application at the Pizza Hut restaurant. Deputy Cordero and another deputy responded to appellant’s residence, which was nearby.
Appellant was at home with his father, Juan. The bicycle was at the curb. After a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436), appellant told the deputy that if he told the truth, he would be in trouble. He also said that earlier that day, he had worked on his resume with his uncle and that the uncle had taken him to the In-N-Out Burger restaurant. He claimed that the bicycle was his, but he was unable to respond to the deputy’s questions asking appellant to describe the unique characteristics of the bicycle.
B.R. was taken to appellant’s residence. He identified appellant as his assailant and said that the bicycle was his.
At the adjudication, appellant declined to testify on his own behalf.
Juan testified that a year and a half previously, he had seen a blue Diamondback bicycle in appellant’s possession at their residence. When asked what had happened to that bicycle, Juan claimed the following: “It just got stolen. I don’t know. I never see it. I seen it a couple of times, but after that I was not worried about the bike. I was more worried about him [referring to appellant].” Juan testified that when he returned home from work on August 14, 2007, appellant had a bicycle that looked like the bicycle that appellant had had a year and a half earlier.
During cross-examination, Juan acknowledged that appellant had arrived home that afternoon just as Juan had that day, or shortly thereafter. Juan said that the bicycle at their residence on August 14, 2007 looked “exactly” like the one that had been stolen. However, he could not say “for sure” that it was the same bicycle.
During redirect examination, Juan said that his son had claimed that his initials were on the bicycle, but Juan had not personally observed the bicycle before the deputies took it. Juan claimed that appellant had purchased the bicycle with “money from the government”; Juan had not purchased it for his son.
Deputy Cordero testified in rebuttal that on August 14, 2007, Juan had told the deputy that when he returned home, appellant had come inside the residence and quickly entered the bathroom. Juan told the deputy that he had not previously seen the bicycle. Appellant’s mother and uncle were at the residence when the deputies arrived, but the deputy did not interview them. Deputy Cordero did overhear the uncle saying that he wished appellant would correct his behavior.
Trial counsel argued that there was a reasonable doubt of guilt as appellant had taken the bicycle with a claim of right.
Without comment, the juvenile court sustained the petition.
The Proceedings at Disposition
At disposition, the juvenile court read and considered a report filed by the probation officer. It disclosed that at age 12, appellant was found possessing marijuana on school grounds. Appellant was fined. At age 14, appellant was placed home on probation after an incident involving criminal threats. At age 15, appellant was suitably placed in a group home. He received individual and family counseling and drug treatment. The current contact occurred when appellant was 16 years old.
Appellant suffers from attention deficit hyperactive disorder (ADHD), and he has previously been medicated with Zoloft and Risperdal. He was previously ordered to see a therapist and psychiatrist through the Child and Family Development Center, but he was dropped from the program when he did not attend the appointments. He is currently taking Wellbutrin. He has been attending the Sequoia Charter Home Study Program and had obtained all “A’s.”
The probation officer recommended that the existing order for home on probation be continued and that appellant be ordered to appear in five months for a progress report.
Appellant’s counsel pointed out that the recommendation was for a disposition of home on probation. The parents wanted their son at home. Appellant had been taking his medication, and his grades were excellent. He had passed his high school exit exam, and he would participate in therapy by means of the provisions of Assembly Bill No. 3632. Also, he would attend anger management classes and work with his father detailing cars. He had been confined in juvenile hall for three weeks.
The prosecutor asserted that more was necessary given appellant’s contacts with law enforcement and history of treatment. She urged that the order of home on probation had not been effective in curtailing his criminal conduct. There was an assault involved in this robbery, as well as the taking of the bicycle. She suggested that it was time for a six-month camp commitment.
The juvenile court found that “[t]he welfare of the minor requires custody be removed from the parent and guardian” and ordered appellant into a short-term camp program.
DISCUSSION
I. The Sufficiency of the Evidence
Appellant contends that the evidence shows that appellant entertained no felonious intent when he took the bicycle as he acted pursuant to a good faith claim of right. Consequently, he did not have the larcenous intent required to prove second degree robbery.
We disagree.
The California Supreme Court restated in its decision in People v. Whisenhunt (2008) 44 Cal.4th 174, the well-established standard of review.
“‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ [Citation.]” (People v. Whisenhunt, supra, 44 Cal.4th at p. 200.)
The same standard of review applies when this court reviews an order of the juvenile court. (In re Roderick P. (1972) 7 Cal.3d 801, 809; accord, People v. Johnson (1980) 26 Cal.3d 557, 576.)
It is settled that despite the use of force, a good faith claim of right is a viable defense where the defendant takes specific property to which he has a bona fide claim of ownership or title. (People v. Tufunga (1999) 21 Cal.4th 935, 953, 956; see People v. Lancaster (2007) 41 Cal.4th 50, 88.) One cannot intend to feloniously steal one’s own property. (Tufunga, supra, at p. 953, fn. 5.)
Appellant argues that as he acted pursuant to a claim of right in taking his bicycle from B.R., and he did not have the requisite intent for a robbery. However, the contention amounts to no more than an invitation to this court to reweigh the evidence and substitute its judgment for that of the juvenile court. That is not the function of an appellate court. (In re E.L.B. (1985) 172 Cal.App.3d 780, 788.)
Appellant’s credibility in this case was at issue as prior to the theft, he said that he was “stealing” the bicycle from B.R. Also, when the deputy spoke to him about whether the bicycle was his at his residence, appellant could not describe the stolen bicycle’s unique characteristics. He also told the deputy that if he told the truth, he would be in trouble. When the bicycle was recovered, appellant’s father and family made no claim that the bicycle belonged to appellant; that claim was made only belatedly during the adjudication. The father’s adjudication testimony was not convincing. During the adjudication, the father acknowledged that he had not given appellant the bicycle, and he had only the most fleeting recollection about appellant’s previous possession of the bicycle. The father made an incredible claim that appellant had received the bicycle through some government funding. No corroboration of a good faith claim of right was presented, such as a bill of sale or proof that a government agency was purchasing bicycles for minors.
In this instance, the juvenile court was not required to accept appellant’s self-serving, or the father’s, claims of right at face value. (See People v. Lashley (1991) 1 Cal.App.4th 938, 946.) The finding of robbery by the juvenile court indicates that it did not believe that appellant took the bicycle believing it belonged to him.
II. The Camp Placement
Appellant also contends the juvenile court abused its discretion when it removed appellant from the custody of his parents and committed him to the short-term camp program.
The contention lacks merit.
The decision in In re Carl N. (2008) 160 Cal.App.4th 423, recently summarized the applicable standards employed during a review of dispositional orders.
“The decision of the juvenile court . . . may be reversed on appeal only by a showing that the court abused its discretion. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) ‘[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]
“As the court explained in In re Michael D., supra, 188 Cal.App.3d at page 1395, ‘[a]n appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.’
“The statutory declaration of the purposes of the juvenile court law is set forth in section 202. [Citation.] Before the 1984 amendment to section 202, California courts consistently held that ‘“[j]uvenile commitment proceedings are designed for the purposes of rehabilitation and treatment, not punishment. . . .”’
“However, ‘[i]n 1984, the Legislature replaced the provisions of section 202 with new language which emphasized different priorities for the juvenile justice system.’ (In re Michael D., supra, 188 Cal.App.3d at p. 1396, citing Stats. 1984, ch. 756, §§ 1, 2, pp. 2726–2727.) Section 202, subdivision (b) (hereafter section 202(b)) now recognizes punishment as a rehabilitative tool. [Citation.] That subdivision provides in part: ‘Minors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment, and guidance consistent with their best interest and the best interest of the public. Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.’ (§ 202(b), italics added.)
“‘Section 202 also shifted its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express “protection and safety of the public” [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. [Citation.]’ [Citation.] ‘Thus, it is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety.’ [Citation.] . . . .
“‘[To impose a more restrictive placement], there must continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. However, these must be taken together with the Legislature’s purposes in amending the Juvenile Court Law.’ (In re Michael D., supra, 188 Cal.App.3d at p. 1396.)” (In re Carl N., supra, 160 Cal.App.4th at pp. 432–434; accord, In re Robert H. (2002) 96 Cal.App.4th 1317, 908 [a camp commitment order is reviewed for an abuse of discretion].)
Section 725.5 provides, as follows: “In determining the judgment and order to be made in any case in which the minor is found to be a person described in Section 602, the court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor’s previous delinquent history.”
Section 726 and the California Rules of Court, rule 5.790(d), provide that the court must not order a ward removed from the physical custody of a parent or guardian unless the court finds: (1) The parent or guardian has failed or neglected to provide, or is incapable of providing, proper maintenance, training, and education for the child; (2) The child has been on probation in the custody of the parent or guardian and during that time has failed to reform; or (3) The welfare of the child requires that physical custody be removed from the parent or guardian. (Subd. (d) of rule 5.790 was amended and relettered effective January 1, 2007; adopted as subd. (c) effective January 1, 1991; previously amended effective July 1, 2002.)
Appellant does not dispute that the trial court explicitly made the one requisite finding supporting removal. However, he complains that substantial evidence fails to support the finding. Section 726 requires a finding only in the language of the statute, and the juvenile court made that finding. (In re Kenneth H. (1983) 33 Cal.3d 616, 621.)
At disposition, appellant was age 16. His criminal conduct was rapidly increasing. The juvenile court had tried less restrictive dispositions to curb his misconduct with no success: appellant was ordered into traffic school and fined, he was placed home on probation, and he had been suitably placed. Recently, he had not been attending the psychological counseling sessions required of him. His failure to attend suggests that his parents were not able to assure that he regularly attend the required counseling. Appellant suffered from ADHD and may well have had special problems following through with treatment without adequate parental supervision. The robbery offense was extremely serious. Appellant was only 16 years old, and was apparently being schooled at home. It was well within the discretion of the juvenile court to determine that appellant required the closer supervision, structure, and schooling that a short-term camp program would provide.
DISPOSITION
The orders under review are affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.