Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL027559, Richard E. Behn, Judge.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
Gilbert V. appeals from a judgment based on the court’s true finding he possessed burglary tools. He contends the court erred in denying his motion to dismiss the petition under Welfare and Institutions Code section 701.1 because there was insufficient evidence to support its allegations. We disagree and affirm.
FACTUAL AND PROCEDURAL HISTORY
In April 2007 the minor, then 14 years old, was charged with two misdemeanors, burglary (Pen. Code, §§ 459, 460 subd. (b); all further statutory references are to this code unless otherwise specified) and petty theft (§ 484, subd. (a)) arising out of his break in at an elementary school to steal pens. The minor admitted the former charge and the latter was dismissed. He was placed on probation and ordered to perform community service.
In June minor was charged with possession of a burglary tool, a shaved car key (§ 466), and possession of a lighter (§ 308, subd. (b)). At trial, police officer Eric Rivas testified he had been dispatched to minor’s home and spoken with his grandmother who told him minor was on probation and had left the house contrary to her instructions and in violation of his curfew. Rivas looked for the minor and found him in the parking lot of a 7-11 store near his residence. There were parked cars in the neighborhood, which contains a number of apartment complexes and shopping centers.
When he searched the minor, Rivas found a cigarette lighter and a shaved key in his pockets. Rivas explained a shaved key is a car key whose edges have been shaved to smooth out the rough edges and is a burglary tool used to open car doors and trunks or in the ignition to start a car. After Rivas read the minor his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), the minor told him he saw it in an alley and “picked it up because his friend said it may be a house key.” When Rivas asked, “Did you know it was a car key?” the minor answered, “yes.”
At the end of the prosecution’s case, defense counsel made a motion to dismiss both counts. After the court denied the motion as to the shaved key and took the motion as to possession of the lighter under submission, the minor testified. At the end of the case the court made a true finding as to the burglary count and dismissed the second count.
The day before that ruling a third petition was filed against the minor, charging him with misdemeanor battery (§ 243.6) after he slapped his teacher on the neck. He subsequently admitted that offense. The minor was sentenced on the first two petitions to probation to follow 45 days in juvenile hall.
DISCUSSION
The sole issue on appeal is the sufficiency of the evidence of the minor’s intent to use the shaved key as a burglary tool. Section 466 states: “Every person having . . . in his . . . possession a[n] . . . instrument or tool with intent feloniously to break or enter into any . . . vehicle . . . or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument . . . so that the same will fit or open the lock of a . . . vehicle . . . is guilty of a misdemeanor.” To prove a violation of this section, evidence must show defendant possessed tools as described in the statute with the intent to use them “for the felonious purposes of breaking or entering.” (People v. Southard (2007) 152 Cal.App.4th 1079, 1085.) This is a general intent crime, that is, “‘“[t]he offense is complete when tools . . . are procured with intent to use them for a burglarious purpose.” [Citation.]’” (Id. at pp. 1087, 1088.)
Welfare and Institutions Code section 701.1 provides that on motion, the court “shall order that the petition be dismissed and that the minor be discharged from any detention or restriction therefore ordered, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602.” When the trial court rules on such a motion, it must “weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the [minor] is ‘proved beyond a reasonable doubt before [the minor] is required to put on a defense.’ [Citation.]” (In re Andre G. (1989) 210 Cal.App.3d 62, 66.)
The minor argues there is no evidence of his intent to use the key as a burglary tool and the court should have granted his motion. He contends that the “only evidence at all was his general presence at night around cars parked at a []7-11[] with the key and his alleged knowledge that it was a car key.” Not so.
First, the minor was out at night in violation of the curfew set in his probation. Further, minor admitted he knew it was a car key so there is nothing “alleged” about that knowledge. In addition, the court could deduce that a 14-year-old minor did not have a driver’s license and thus had no right to drive. Therefore, even had it been a legitimate car key, there would be little if any reason for minor to possess it. More importantly, because a shaved key has no purpose other than to break into a car, the court could reasonably infer the minor possessed it to use as a burglary tool, whether that night or on another occasion. (People v. Southard, supra, 152 Cal.App.4th at p. 1088 [unnecessary to prove intent to use burglary tool at particular time or place].) Contrary to the minor’s claim, this does not make mere possession of the tool, without the requisite intent, a crime.
Moreover, the minor’s testimony that he found the key that evening and picked it up because he was a collector and thought “it was cool” is irrelevant. “[R]eview of an unsuccessful motion for acquittal is limited to the evidence introduced at the time the motion was made . . . .” (In re Anthony J. (2004) 117 Cal.App.4th 718, 730.)
The total of the prosecution’s evidence is enough to show intent. Granted it was primarily if not completely circumstantial, but evidence to prove the required intent for burglary is usually circumstantial. (People v. Lewis (2001) 25 Cal.4th 610, 643), and “[a]ny variety of circumstances may be sufficient to establish the necessary felonious intent.” (People v. Smith (1978) 78 Cal.App.3d 698, 704.) Our standard of review is the same whether the evidence is direct or circumstantial. (In re Alexander L. (2007) 149 Cal.App.4th 605, 610.) “Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate ‘“that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citation.]’ [Citation.]” (Ibid.) Such is not the case here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.