Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. FJ43594, Robert J. Totten, Judge.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Appellant F.G., a minor, appeals a determination that he is a ward of the juvenile court based on an attempted residential burglary and unlawful taking of a vehicle. His sole contention on appeal is that, aside from statements he made to police, there is insufficient evidence that a vehicle was unlawfully taken. Asserting the trial court’s finding violated the corpus delicti rule, he asks us to reverse that count. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
On May 24, 2010, the District Attorney filed a juvenile petition against appellant under Welfare & Institutions Code section 602. The allegations were that he had committed a residential burglary (Pen. Code, § 459) and an unlawful taking of a vehicle (Veh. Code, § 10851). The car in question belonged to appellant’s father.
Defendant had been arrested after witnesses observed three young men casing a residence for a possible burglary. Appellant and two others were seen in a car parked across the street from the location. One of the men, not appellant, got out of the car and went onto the property apparently to commit a residential burglary, but was scared off by a neighbor’s intervention. Another neighbor wrote down the license plate of the car used by the three men, and the car was eventually traced to appellant’s father.
The court ultimately sustained an amended petition of attempted residential burglary (Pen. Code, §§ 664/459). Because minor does not challenge that part of the trial court’s judgment, we provide only the essential facts of the attempted burglary.
Los Angeles Police Officer Kenny Korn was one of several officers assigned to investigate, and was a witness at trial. After Korn spoke to appellant’s father, appellant was brought to the police station, where Korn questioned him. Before the interview, police lawfully secured appellant’s waiver of rights under Miranda v. Arizona (1966) 384 U.S. 436. Appellant explained what had transpired at the attempted burglary, although his statement to police suggested that he did not realize his friend was going to engage in criminal activity.
More germane to the sole issue on appeal, appellant also described the circumstances under which he obtained his father’s vehicle. Apparently the car was in a parking lot supervised by an attendant. Appellant told the attendant that his father had given him permission to take the car. When the parking attendant seemed unwilling to release the vehicle, appellant engaged in a ruse that would have made Huckleberry Finn proud: Appellant pretended to call his father on the phone but in reality the other person on the line was his friend George Diaz, one of the three men who would be involved in the burglary. Diaz pretended to be appellant’s father and the two of them duped the attendant into releasing the car. Appellant admitted he did not have his father’s permission to use the vehicle.
When the trial was originally set, the court apparently anticipated a two-day hearing because the father was unavailable on the first day. At one point, the court and counsel discussed trying the burglary charge on the first day and the unlawful taking on the second when the father could have been present. After Officer Korn completed his testimony and no further witnesses were scheduled for the day, the court heard argument primarily on whether appellant had aided and abetted a completed burglary or only an attempt. The discussion centered on what had transpired with a screen door and whether there was an actual entry to constitute a burglary. Eventually the court reduced the charge to attempted burglary. The court then said:
“THE COURT: With regard to count two [unlawful taking of a vehicle], I know we were holding off for the father, but based upon the statements that came in, I’ve got enough for count two.” Appellant’s counsel made no objection, instead arguing that the unlawful taking charge should be a misdemeanor, not a felony. The court disagreed and sustained the petition to both charges as felonies. Dispositional orders were then made.
DISCUSSION
Appellant limits his appeal to a single contention: The People failed to establish the corpus delicti of the crime of unlawful taking of a vehicle under Vehicle Code section 10851. Because the law is clear that the corpus must be established without regard to a criminal defendant’s own statements and there was no such evidence here, appellant argues count two should have been dismissed.
We start our analysis with some familiar principles concerning corpus delicti.
In any criminal trial, the prosecution must prove the corpus delicti. In English we mean the body of the crime itself, “i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) Although not mandated by statute and not grounded in constitutional guarantees, corpus principles have their roots in the common law. (See Crisera, Reevaluation of the California Corpus Delicti Rule: A Response to the Invitation of Proposition 8 (1990) 78 Cal. L.Rev. 1571, 1571–1573.) The rule applies as well to juvenile delinquency proceedings. (In re I.M. (2005) 125 Cal.App.4th 1195, 1202-1204.)
In California, aside from the defendant’s statements, there must be independent proof of the corpus of the crime, namely that a crime has been committed by someone. (People v. Ochoa (1998) 19 Cal.4th 353, 451.) The Supreme Court has explained the level of proof required to establish a corpus and the effect of the defendant’s statements when the corpus has been presented: “The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense, ’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations].” (People v. Alvarez, supra, 27 Cal.4th at pp. 1169-1170.)
Because the corpus rule is intertwined with whether the evidence against the defendant is legally sufficient, no objection need be made at trial to preserve on appeal the claim that a corpus was not established. (People v. Alvarez, supra, 27 Cal.4th at p. 1180.)
Respondent does not argue that minor has forfeited his corpus argument by not objecting in the trial court. After Proposition 8 – the “right to Truth-in-Evidence” measure – it is improper in California to object to the admissibility of evidence on the ground that the corpus had not yet been established. The substantive rule of law remains. (People v. Alvarez, supra, 27 Cal.4th at p. 1180.)
Turning to the facts of this case, appellant implicitly concedes that there is sufficient evidence to convict him of the unlawful taking of his father’s vehicle if we were to consider his statements to the police. He explained to Officer Korn the ruse he and Diaz pulled on the parking attendant, and he admitted that he did not have permission from his father to take the vehicle.
But there was nothing aside from his statements that demonstrated an unlawful vehicle taking had in fact occurred. There is nothing unusual about a son driving his father’s car; nor do we find it significant that it was appellant’s friend, Diaz, doing the driving. There was no evidence that the ignition was punched or that father’s keys were stolen. The ruse, while duplicitous, does not establish that appellant did not have permission, only that he did not call his father at the time to ask.
Respondent’s argument that a corpus was established is that “Detective Korn testified he learned certain facts about what happened on May 18, 2010, from his conversation with appellant’s father that led him to locate appellant and continue his investigation. That statement permits a reasonable inference that appellant’s father had not consented to the taking of the vehicle; if there was a non-criminal explanation for appellant’s possession of the vehicle, the detective would have presumably so testified.” We are not persuaded.
First of all, Korn testified that a fellow officer spoke to the father, and that during that conversation police learned additional facts about what had occurred. Then the prosecutor asked what the officer did based on the conversation with the father. The answer was: “Well, we learned, first of all, [appellant] lived at that address and he was on probation. We also learned that he took his father’s vehicle, the white Pontiac, without his permission.” The court sustained an objection made by the defense. At that point, Officer Korn explained that he then contacted appellant, read him his Miranda rights, and took his statement.
The record does not disclose the grounds for the objection, although the context suggests that the court and counsel understood it to be hearsay. In any event, respondent does not argue the ruling was incorrect.
The record does not reveal how Officer Korn, without testifying to the hearsay statement of the father, could have testified that appellant did or did not have his father’s permission. In any event no testimony came in one way or the other concerning what father had said.
Respondent also argues that the probation report prepared in this case supplies any missing corpus elements. We disagree for two reasons. First, a probation report is not admissible in a delinquency jurisdiction hearing, only at disposition. (In re Gladys R. (1970) 1 Cal.3d 855, 859-860; In re Vincent G. (2008)162 Cal.App.4th 238, 242.) Second, the information from the probation report recites the difficulty the family had been having with appellant, but says nothing about the taking of a car.
We conclude there was no independent proof of the crime of unlawful taking of a vehicle, and the court erred in sustaining the petition as to count two.
DISPOSITION
The judgment sustaining the petition is affirmed in part (amended count one) and reversed in part (count two). Because of our disposition, a new maximum period of confinement must be established. (Welf. & Inst. Code, § 726.) There appears to be some uncertainty as to the original maximum period. The District Attorney believed it to be three years and eight months, apparently calculated as three years for the attempted burglary (Pen. Code, §§ 459, 664) plus eight months as one-third the midterm sentence of two years for the unlawful taking (Veh. Code, § 10851; Pen Code, § 1170.1). The court seemed to agree with the prosecutor but then stated that it was four years and eight months. The minute order also recites four years, eight months. Because a new maximum period must be determined in any event, we believe it best for the trial court, not us, to do so.
WE CONCUR: BIGELOW, P. J., GRIMES, J.