Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J035309
SIMONS, JUDGE
B.H. appeals from the juvenile court’s jurisdictional and dispositional orders. We conclude insufficient evidence supports the juvenile court’s finding that B.H. committed a criminal trespass and reverse that finding. B.H.’s appeal from the court’s imposition of a probation search condition is moot.
PROCEDURAL BACKGROUND
In July 2006, a petition was filed in the Solano County Superior Court alleging that B.H., born in February 1989, was a minor described under Welfare and Institutions Code section 602, subdivision (a), based on a misdemeanor violation of Penal Code section 626.2 (trespassing on school grounds while suspended). The petition was amended in November 2006 to add three more misdemeanor counts: loitering to commit a controlled substance offense (Health & Saf. Code, § 11532, subd. (a)) (count two), resisting a police officer (Pen. Code, § 148, subd. (a)(1)) (count three), and trespass (Pen. Code, § 602, subd. (k)) (count four).
Counts one and two were dismissed by the juvenile court. The court sustained counts three and four. On January 3, 2008, the court placed B.H. on six months’ informal probation in the custody of his mother. The terms of his probation included a condition requiring him to submit to warrantless searches with or without probable cause.
FACTUAL BACKGROUND
On August 17, 2006, City of Vallejo Police Detective Bower was patrolling the area of Maine Street where the Marina Vista Apartments are located. Bower was assigned to a crime suppression unit that focused in part on narcotics-related offenses at the apartment complex. The Marina Vista Apartments complex is gated and posted with “no trespassing” signs visible from the street.
While patrolling the complex around 5:00 p.m. on August 17, 2006, Bower saw a group of at least 12 people on a walkway between two of the complex’s buildings. Bower and two other officers approached the group. B.H. was in the group, and he ran as the officers approached. The officers identified themselves and told B.H. to stop, but B.H. did not stop. B.H. was eventually apprehended after he ran out of the apartment complex.
B.H. testified that on August 17, 2006, he visited a friend at the Marina Vista Apartments complex. He shot dice for about an hour and then was just standing around talking. He ran because others started running and he did not know what was going on; he did not hear the officers yell for him to stop.
DISCUSSION
B.H. contends the juvenile court’s finding that he committed a criminal trespass is not supported by substantial evidence. Violation of Penal Code section 602, subdivision (k), requires a showing that the person charged with the offense willfully entered “any lands, whether unenclosed or enclosed by fence, for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owner’s agent or by the person in lawful possession.”
In sustaining count three, the juvenile court reasoned, “If in fact you had just gone there and visited your friend . . . and you were just standing around when the police came by, and everybody ran, I would not be sustaining a trespass charge. [¶] The fact is that you did in fact go specifically with the purpose of committing an illegal act on private property. And that does make this trespass, does interfere with the free use of one’s private property. Because people should be free to use their property without the fear of other people using their property for illegal uses. And when you’re all grown up and have property of your own, you will really appreciate that.” In context, it is clear that shooting dice was the illegal use the court had in mind.
In considering the sufficiency of the evidence, “[a]n appellate court must review the whole record in the light most favorable to the judgment in order to determine whether it discloses substantial evidence that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. [Citations.]” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.)
B.H. argues there was no evidence to support the finding that he entered the Marina Vista Apartment complex with the intent to interfere with, obstruct, or injure any lawful business carried on by the complex management or residents. (Pen. Code, § 602, subd. (k); see also CALCRIM No. 2930.) We agree. B.H. testified that he went to the complex to shoot dice, which he admitted was gambling. He testified that he shot dice in a group of 12 or 13 persons under some stairs in the apartment complex. He testified that, although some residents of the apartment complex walked by, none had to walk around the group because they were playing near a vacant apartment. At least one of the people shooting dice, B.H.’s friend, was a resident of the complex; there was no evidence regarding whether the others in the group were residents. There was no testimony the game interfered with the operation of the complex. There was no testimony that B.H. was warned his conduct was a nuisance or that he was asked to leave. Absent more evidence, there is no basis to infer that B.H. interfered with or obstructed or injured the business of the apartment complex or of any of its residents. Further, there is no evidence that he intended to do so. (See In re Wallace (1970) 3 Cal.3d 289, 295 [no showing of intent to support trespass conviction, in part because there was no evidence that protestors at county fair actually obstructed business of fair].)
By way of comparison, in In re Ball (1972) 23 Cal.App.3d 380 a criminal trespass conviction was upheld where the evidence showed the defendant’s conduct in setting up a signature gathering table in the Disneyland parking lot forced the unloading of tram passengers to another location. The court reasoned: “That petitioner knew that his conduct was substantially certain to result in such interference, the requisite intent may be inferred from his deliberately entering the parking lot and engaging in the conduct disclosed after having requested and been denied permission to do so and from his refusal to leave when asked to do so.” (Id. at p. 386; see also People v. Brown (1965) 236 Cal.App.2d Supp. 915, 921-922 [sufficient evidence of intent to interfere where defendants “after entering the bank, engaged in various transactions at the counters, such as coin changing, coin counting, etc., for a period of approximately two hours. . . . Their conduct made it necessary for some of the customers to be serviced by tellers reaching over, around and between the demonstrators”].) No comparable evidence is in the record in this case.
Respondent argues the evidence that B.H. committed a crime at the complex, shooting dice, is sufficient to support the juvenile court’s finding. However, the statute requires a showing that B.H. had the specific intent to interfere with the complex’s operations; his intent to shoot dice is not evidence of intent to commit a criminal trespass. (See People v. Harris (1961) 191 Cal.App.2d 754, 758 [intent to commit theft does not embrace intent required for criminal trespass conviction, i.e., an intent to interfere with, obstruct, or injure a lawful business].)
Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, offers no support for respondent’s argument. In that case, the court of appeal concluded there were disputed issues of fact regarding whether the defendant store manager was justified in making a private person’s arrest of protestors at the store. In the passage quoted by respondent, the court simply noted the police report did not indicate that the protestors were interfering with the store business “or otherwise engaging in any criminal act.” (Id. at p. 511.) The court did not consider whether or suggest that violation of any criminal statute will support a conviction for trespass under Penal Code section 602, subdivision (k).
The juvenile court’s finding that B.H. committed a criminal trespass is not supported by substantial evidence. B.H. also contends the juvenile court abused its discretion in imposing a probation search condition. Normally we would remand for reconsideration of the probation search condition due to reversal of the juvenile court’s finding on the criminal trespass charge. However, the disposition date in this case was January 3, 2008, and the duration of probation was only six months. Because the term of probation has expired, B.H.’s challenge to the search condition is moot.
DISPOSITION
The juvenile court’s finding that the minor violated Penal Code section 602, subdivision (k) (trespass), is reversed. In all other respects, the court’s orders are affirmed.
We concur. JONES, P.J., DONDERO, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.