Opinion
B200930
4-28-2008
In re MARCOS R., a Person Coming Under the Juvenile Court Law THE PEOPLE, Plaintiff and Respondent, v. MARCOS R., Defendant and Appellant
Laini Millar Melnick, 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, Senior Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Appellant Marcos R., a minor, appeals from an order of the juvenile court declaring him to be a ward of the court (Welf. & Inst. Code, § 602) and ordering him suitably placed after finding that appellant was guilty of first degree residential burglary (Pen. Code, § 459). On appeal, appellant contends that the burglary must be deemed second degree because the juvenile court failed to specify the degree of the offense. Appellant also contends that the matter should be remanded for a determination of whether the second degree burglary is a misdemeanor or a felony. We disagree and affirm the order of the juvenile court.
FACTS
A. Prosecution Case
Francisco Padilla (Padilla) resided with his wife, Minerva, and his son, Jonathan, in South Gate. On January 30, 2007, at 7:15 a.m., Padilla locked and left the residence. When he returned at about 2:40 p.m., the residence was not in the same condition. The door was open, wax was on the kitchen floor and the living room carpet, food was on the kitchen counter, the television and some of the lamps were on. Items in Jonathans bedroom were not in their usual places and one of the bedroom windows had been broken by a brick. Padilla had not given anyone permission to enter the residence.
On January 31, 2007, at about 8:40 a.m., Officer Al Munoz responded to the Padilla residence concerning a burglary in progress. Officer Munoz contacted Minerva Padilla at the residence. Officer Munoz observed appellant and Daniel M., another minor, near the residence. Based upon his interview with Minerva Padilla, Officer Munoz arrested appellant and Daniel M.
Daniel M. told Officer Munoz that on January 30, he, appellant, and a third juvenile known as "Chongo" were at the Padilla residence. Chongo broke in through a window, which allowed appellant and Daniel M. to enter the residence.
Appellant also informed Officer Munoz that he was at the residence on the 30th and the 31st, and before that, with Jonathan. On January 30, he and Daniel M. entered the residence after Chongo broke a window. Appellant said that while he was at the residence on January 31, he hung out for about two hours and took a DVD with him when he left. The DVD was recovered from his backpack by Officer Munoz.
B. Minors Case
Appellant testified on his own behalf. He stated that he knew Jonathan Padilla and had gone to his residence several times before January 30, 2007, to eat and play video games. He testified that he was at the residence on January 30 and gained entry after someone broke a window. Jonathan was not at the residence on that date and no one had given appellant permission to enter. Appellant testified that he had borrowed things from Jonathan before and would return them. When he took the DVD, he was going to watch it and return it to Jonathan. Appellant stated that Daniel M. was not at the residence on January 30 and no one gave him permission to enter the house on that day.
Daniel M. testified that on January 31, they had seen Jonathan near his residence and he said he was going to come back to the house. That is the reason they went there to hang out.
DISCUSSION
Appellant contends that his adjudication for burglary must be deemed a second degree burglary because the juvenile court did not specify the degree of the offense. In addition, if the offense is a second degree burglary, it should be remanded for a determination of whether the second degree burglary is a misdemeanor or felony. We do not agree that the burglary must be deemed a second degree burglary. Therefore, no remand is required.
The amended petition filed April 10, 2007 charged appellant with first degree residential burglary occurring on January 30, 2007. Appellant contends that even though he was charged with first degree residential burglary, this was not sufficient to satisfy the specification requirement, under rule 5.780(e)(5) of the California Rules of Court and Penal Code section 1192 .
California Rules of Court, rule 5.780(e)(5), provides that the juvenile court must make findings "[i]n a section 602 matter, [of] the degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult. If any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or a felony. . . ."
Penal Code section 1192 provides: "Upon a plea of guilty, or upon conviction by the court without a jury, of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree. Upon the failure of the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree."
Appellant was charged with first degree residential burglary. The juvenile court found that the Padillas residence was burglarized. "Both minors admitted to having gone into the home to hang out or, as the court indicated, make themselves at home. I think [appellant] specifically said that he was going to play games and to eat. It seems clear that the minors were intending to make themselves at home and partake of the food and drink within the home, and also by virtue of the fact of the forced entry, the court is not persuaded that the entry was not made with the specific intent also to take the DVD and video games that were ultimately taken." The juvenile court then found the petition to be true and sustained the only count in the petition—first degree residential burglary. The juvenile court denied appellants motion to dismiss the charge on the ground of insufficient evidence. At the disposition hearing, the juvenile court stated, "The court finds the offense to be a felony, maximum confinement period is six years." The minute order also indicates that the offense was declared to be a felony.
In People v. Preciado (1991) 233 Cal.App.3d 1244, the information charged first degree residential burglary. The evidence only supported first degree burglary and the verdict form stated that the jury found defendant guilty of residential burglary, as charged in the information. (Id. at p. 1247.) The court noted that finding defendant guilty of burglary of a residence was "just another way of saying first degree burglary." (Id. at p. 1250.) Under the circumstances, it was not necessary to reduce defendants burglary conviction to second degree burglary. (Ibid.)
In the instant case, appellant was charged with first degree residential burglary. The juvenile court found that appellant entered the residence by a forced entry. The juvenile court also believed that the entry was made with the specific intent to take property. Its findings were "just another way of saying first degree burglary." (People v. Preciado, supra, 233 Cal.App.3d at p. 1250.)
Appellants reliance on In re Andrew I. (1991) 230 Cal.App.3d 572 is misplaced. In Andrew I. the appellate court explained, "In juvenile proceedings, the statutes and rule are met if, at the end of the jurisdiction hearing, or during the disposition hearing, the court makes a finding as to the degree of the crime either by numerical designation or a sufficiently clear description of the offense." (Id. at p. 581.) While we agree that the amended petition charging appellant with first degree residential burglary was not sufficient to satisfy the requirement (ibid.), we hold that the juvenile courts finding that the Padillas residence was burglarized sufficiently described the offense for the purpose of fixing the degree of the burglary offense under California Rules of Court, rule 5.780(e)(5) and Penal Code section 1192. The court need not use specific words or a "magical incantation" to specify the degree of the offense. (Id. at p. 580.) To deem the adjudication to be a lesser crime "that was never at issue" would produce "absurd and unjust results" and certainly elevate form over substance. (People v. Mendoza (2000) 23 Cal.4th 896, 911).
DISPOSITION
The order is affirmed.
We Concur:
VOGEL, Acting P. J.
ROTHSCHILD, J.