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In re Linda N.

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E044201 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. J215246, Robert Fowler, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.

Susan S. Bauguess, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Emily R. Hanks, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

RICHLI, J.

The juvenile court found true that Linda N. (minor) had committed vandalism resulting in over $400 damage (Pen. Code, § 594, subd. (b)(1)) (count 1) and grand theft of personal property over $200 (§ 487, subd. (a)) (count 2). Minor was thereafter declared a ward of the court and placed on formal probation in the custody of her mother.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, minor contends (1) there was insufficient evidence to support the juvenile court’s true finding that she committed count 2; (2) the juvenile court’s statement prior to making its findings improperly shifted the burden of proof to minor; and (3) the matter must be remanded to allow the juvenile court to exercise its discretion to declare the offenses misdemeanors or felonies. We agree with the parties that the matter must be remanded to allow the juvenile court to exercise its discretion; however, we reject minor’s remaining contentions.

I FACTUAL BACKGROUND

Prior to March 9, 2007, Lauren was living with Tina and Tina’s daughter, Amber. Tina asked Lauren to collect her belongings and move out. Lauren told Tina she had already gathered all of her personal property and she then left the house. Lauren did not have permission from either Tina or Amber to return to the home.

On March 9, 2007, Lauren told minor and two other girls, April and Elizabeth, that she had been kicked out of Tina’s house and needed to retrieve her things from the home. Lauren told the girls that she had clothing at the house, but did not mention any other items in particular. Lauren also stated that she had a key to the residence. The four girls then drove to the residence; Elizabeth was the driver. Elizabeth and April waited in the car while Lauren and minor went to the front door. Minor and Lauren tried to open the front door with the key. When the key did not work, minor and Lauren walked around to the back of the house. April watched as minor threw a brick at the window, but the window did not break initially. Minor then threw the brick at the window again, breaking it the second time. Minor and Lauren then climbed through the window and into the house.

While in the home, minor and Lauren ransacked Amber’s room. They took Amber’s clothing, DVD’s, flute, and portable media player. None of the items minor took belonged to Lauren. Minor stole more than $400 worth of Amber’s property. April and Elizabeth saw minor and Lauren come out of the front door of the home carrying clothing and DVD’s. When they entered the car, minor said, “Oh, my gosh, I can’t believe we broke the window.” Lauren stated, “Oh, we took her flute and violin and DVD’s.”

The four girls later picked up Lauren’s friend, Derek, who had identification, and went to a pawnshop. Lauren and Derek went into the shop and pawned all the items except the flute. Minor threw the flute out the car window.

Tina received a call from a neighbor, who informed her that her front door was open. When Tina returned home, she found her daughter’s room had been ransacked and the police were there. Amber returned home around noon and noted her personal belongings missing; she suspected Lauren of the crime. San Bernardino County Sheriff’s Service Specialist Sansone found the window to Amber’s bedroom broken and the screen cut out. There was a small amount of blood on the window glass. Two white buckets were underneath the window and a brick was lying outside the window. Tina had the window and screen replaced at a cost of over $700.

Service Specialist Sansone interviewed Elizabeth. Elizabeth said minor and Lauren had originally “gone to the front door, and then she saw them go to the side of the house.” Elizabeth also said she saw minor and Lauren walk out the front door of the home carrying “stuff.” Elizabeth did not indicate “who was carrying what.” Officer Guerra interviewed minor, who claimed she had not been at Amber’s house that day.

II DISCUSSION

A. Sufficiency of the Evidence

Minor contends there was insufficient evidence to support the juvenile court’s finding that she committed grand theft. Specifically, she claims that she believed the property taken belonged to Lauren and, therefore, she could not have had the requisite intent to be guilty of theft. We disagree.

“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) “[O]ur inquiry is limited to whether any rational trier of fact could have found the necessary elements of the crime beyond a reasonable doubt. [Citations.]” (People v. Brown (1995) 35 Cal.App.4th 1585, 1598.) We review the entire record in the light most favorable to the judgment to determine whether it contains “‘“substantial evidence—that is, evidence which is reasonable, credible, and of solid value”’” from which a jury comprised of reasonable persons could have found a defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume “in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient.” (Ibid.) This same standard of review applies in juvenile proceedings. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)

Grand theft by larceny requires that certain money, labor, or real or personal property be “taken” by a defendant (here, minor) without the owner’s consent and with the intent to deprive the owner of the property permanently. (§ 487, subd. (a); see Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 1800.) Further, in order to qualify as grand theft, the personal property taken must be valued at over $400. (§ 487, subd. (a).)

Minor contends there is insufficient evidence to show she took Amber’s personal property with the specific intent to deprive the owner of it permanently, arguing that nothing in the record suggested that minor was “aware they were going to [Amber’s] residence to retrieve anything other than Lauren’s belongings,” and when the items were taken, that she “had any knowledge those items belonged to Amber.”

Minor, however, essentially concedes that she took the property without Amber’s consent, that she moved the property, and that the property was valued at over $400. In fact, minor cannot contend otherwise as there was substantial evidence to show each of the elements of grand theft. Amber testified that she did not give minor or anyone else permission to take her property and that the property stolen cost more than $400.

An intent to permanently deprive someone of his or her property may be inferred when one unlawfully takes the property of another. (People v. Butler (1967) 65 Cal.2d 569, 573, overruled on another point in People v. Tufunga (1999) 21 Cal.4th 935, 938.) Here, minor broke into the house by throwing a brick against Amber’s bedroom window multiple times and then ransacked her bedroom. Minor was overheard saying, “Oh, my gosh, I can’t believe we broke the window.” Lauren was overheard exclaiming, “Oh, we took her flute and violin and DVD’s.” (Italics added.) The four girls thereafter picked up a male friend who had identification and drove to a pawnshop. Lauren sold most of the items at the pawnshop. Minor then tossed the flute out of the car window; presumably the one item Lauren could not sell.

We reject minor’s claim that there was no proof that she intended to steal from Amber because she believed the items they took belonged to Lauren. First, Lauren’s statement upon her and minor entering the vehicle after they came out of the residence belies this contention. Second, minor’s statement to Officer Guerra shows minor’s consciousness of guilt. Minor denied being at Amber’s residence at all on the date of the incident; however, April testified that she saw minor and Lauren coming out of the residence carrying stuff. Further, the circumstances under which minor entered and treated the house indicated that minor knew she was stealing; minor and Lauren entered the house by breaking a window with a brick and then ransacking Amber’s room. Tina testified that the room looked as if a “cyclone” hit.

More importantly, minor’s argument was a credibility issue for the trier of fact to resolve. (In re Ryan N., supra, 92 Cal.App.4th at p. 1373 [reviewing court does not reweigh conflicting evidence or determine witness credibility].) At trial, minor argued that she believed that she was collecting Lauren’s things. The juvenile court rejected this interpretation of the evidence and found that the evidence demonstrated minor was intentionally stealing from Amber. The evidence justifies the juvenile court’s finding.

Minor also argues that the evidence was insufficient to prove she stole Amber’s property, relying on Elizabeth’s testimony that Lauren was carrying all the items when minor and Lauren returned to the car. However, as the People point out, Elizabeth’s testimony in this regard was impeached at trial. Service Specialist Sansone testified that when she spoke with Elizabeth on the date of the incident, Elizabeth told her that she (Elizabeth) saw both minor and Lauren carrying items from the home. In addition, April testified that she saw minor carrying some of the clothes and DVD’s, albeit she did not indicate whether it was Lauren’s or Amber’s belongings. Moreover, this again was a credibility issue for the trier of fact to resolve; the juvenile court found adversely against minor.

Accordingly, viewing the evidence in the light most favorable to the People, we find there is substantial evidence that minor intentionally committed grand theft of personal property.

B. Improper Shifting of Burden of Proof

Minor claims the juvenile court shifted the burden to minor to prove her innocence. Minor is mistaken.

While making its findings, the juvenile court noted that there was uncontroverted evidence of minor’s guilt. After both sides had rested and finished closing arguments, the juvenile court made its findings, stating: “Reasonable doubt is created when there is contrary evidence. [Italics added.] Here the evidence is uncontroverted. And while one of the witnesses may, in fact, have a bias, there still remains uncontroverted evidence. [¶] There is evidence that they took property not belonging to them. It would be wonderful to know what room [Lauren] slept in to know whether or not they went into a different room or not. However, the owner of the house came in and said no, she took all her belongings. So clearly there is some theft here. [¶] And then when you go to a pawnshop and you have to go and look around for the person because no one has an ID, that really, really kind of like sums it up. They knew it was stolen, they knew that they had to get money for it. And then the offhand way in which—which remain uncontroverted, you throw out—a flute out the window. Yeah, there’s an intent to deprive, and this is certainly a theft.”

While acknowledging that the juvenile court stated its view of the evidence presented at trial, minor nonetheless takes issue with the italicized portion of the statement, arguing “it cannot be overlooked the court determined that in order to establish reasonable doubt, there must be ‘contrary evidence’ presented.”

“The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ [Citation.]” (In re Winship (1970) 397 U.S. 358, 363.) Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged.” (Id. at p. 364.)

Contrary to minor’s contention, we do not find that the juvenile court improperly shifted the reasonable doubt standard to her. The juvenile court never indicated that minor had a duty to provide any evidence. Likewise, the juvenile court never indicated that it was applying any burden other than the beyond-a-reasonable-doubt standard. This was a bench trial; not a jury trial. “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) The general rule is that a trial court is presumed to have been aware of and followed the applicable law. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown’”]; Evid.Code, § 664; People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.)

Upon our reading of the record, nothing indicates to us that the juvenile court shifted the burden of proof. The juvenile court made its comments after both sides had presented evidence and completed closing arguments. The juvenile court was merely summarizing why it had concluded that no reasonable doubt existed in this case. The entirety of the juvenile court’s statements makes clear that it was remarking on the uncontroverted evidence of minor’s guilt. The juvenile court was neither stating nor implying that it was minor’s burden to produce evidence of innocence. The juvenile court noted that there was uncontroverted evidence that minor took property not belonging to her. We do not interpret the juvenile court’s remarks as a shifting of the burden of proof to minor.

C. Juvenile Court’s Duty to Declare a Felony or Misdemeanor

Lastly, minor contends, and the People correctly concede, that her case must be remanded because the juvenile court failed to declare whether the offenses were felonies or misdemeanors, pursuant to Welfare and Institutions Code section 702.

Welfare and Institutions Code section 702 states as follows: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor the court shall declare the offense to be a misdemeanor or felony.” The parties agree that both of the charges against minor can be treated either as a felony or a misdemeanor because they are punishable “by imprisonment in a county jail not exceeding one year or in the state prison.” (Pen. Code, § 489, subd. (b); see also Pen. Code, § 594, subd. (b)(1) [vandalism resulting in over $400 in damages “is punishable by imprisonment in the state prison or in a county jail not exceeding one year”].) As a result, the juvenile court was required to make a declaration pursuant to Welfare and Institutions Code section 702.

Welfare and Institutions Code section 702 “requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Although not “automatic,” remand is required for “strict compliance” with this section if the juvenile court fails to expressly make a formal declaration. (Id. at pp. 1204, 1209.) Remand is unnecessary if the record shows “that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion.” (Id. at p. 1209.) “The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion.” (Ibid.) We cannot substitute pleadings, minute orders, or even the imposition of a felony-term of confinement for an express declaration by the juvenile court. (Id . at p. 1208.)

Viewing the record as a whole, we are unable to determine whether the juvenile court properly exercised its discretion under Welfare and Institutions Code section 702. During the dispositional hearing, the juvenile court noted, “[t]he charge sustained [the vandalism charge] is a felony.” The juvenile court at trial declared that the maximum period of confinement was three years eight months, a felony-level period of confinement. However, it appears the trial court was simply reciting what was shown on the June 5, 2007, juvenile report face sheet without regard to its duty to exercise discretion under Welfare and Institutions Code section 702. Nothing in the record indicates that the juvenile court was aware of its discretion to declare the offenses either misdemeanors or felonies. The pleadings and probation report never mentioned the juvenile court’s duty to exercise discretion under Welfare and Institutions Code section 702. Neither the prosecutor nor the defense attorney directed the juvenile court’s attention to the need for making a finding under Welfare and Institutions Code section 702. Nor do the minutes from the jurisdictional hearing indicate a Welfare and Institutions Code section 702 finding was made, albeit the minute order refers to both the vandalism charge and grand theft charge as felonies. A remand is therefore necessary to clarify the record.

III DISPOSITION

The matter is remanded to allow the juvenile court to clarify whether the Penal Code section 594, subdivision (b)(1) (vandalism) and the section 487, subdivision (a) (grand theft of personal property) offenses are felonies or misdemeanors pursuant to Welfare and Institutions Code section 702. In all other respects, the judgment is affirmed.

We concur: RAMIREZ P. J., HOLLENHORST J.


Summaries of

In re Linda N.

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E044201 (Cal. Ct. App. Jul. 29, 2008)
Case details for

In re Linda N.

Case Details

Full title:In re LINDA N., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 29, 2008

Citations

No. E044201 (Cal. Ct. App. Jul. 29, 2008)