Opinion
F042717.
11-25-2003
In re MORRIS W., A Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MORRIS W., Defendant and Appellant.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Lloyd G. Carter and Robert P. Whitlock, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
The court readjudged appellant, Morris W., a ward of the court after it sustained allegations in a petition charging Morris with second degree burglary (Pen. Code, § 459). On March 7, 2003, the court set Morriss maximum term of confinement at 36 months and ordered him held in juvenile hall pending group home placement. On appeal, Morris contends the evidence is insufficient to sustain the courts finding that he committed the charged burglary offense. We will find merit to this contention and reverse the judgment.
FACTS
Sijirfredo Lozano testified that on March 8, 2003, he was working as a grocery manager at the Save-Mart in Oakdale. At approximately 5:40 p.m., after an employee pointed Morris out, Lozano saw Morris stuff four bottles of liquor down his pants. Morris then walked out the door without walking through a register or paying for them. Lozano followed Morris outside and called out to him to come back. Morris walked back to Lozano and was taken back into the store to wait while the police were summoned.
Lozano did not see Morris do any shopping and did not know how long he had been in the store. According to Lozano, Morris was "intoxicated completely."
DISCUSSION
Morris contends the evidence is insufficient to sustain the courts finding that he committed second degree burglary because the record does not contain any evidence from which it can be inferred that prior to entering the market, he harbored the requisite intent to commit a theft. We agree.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
"Under section 459, a person is guilty of burglary if he or she enters any building (or other listed structure) with the intent to commit larceny or any felony." (People v. Davis (1998) 18 Cal.4th 712, 715, emphasis added.)
Here, Lozano, the only witness at Morriss adjudication hearing, testified that he saw Morris inside the market when a clerk pointed him out and at that point, Morris was putting several liquor bottles down his pants. However, the prosecutor did not present any evidence of Morriss movements prior to that point. Nor does the record contain any other evidence from which it can be inferred that Morris entered the store with the requisite intent to commit a larceny.
Respondent contends that it can be reasonably inferred from Morriss youthful age of 15 that since he was not old enough to purchase alcoholic beverages, he must have entered the store with the intent to steal the liquor. However, there is nothing about Morriss age alone that suggests he formed the intent to steal liquor prior to entering the market rather than after entering it.
Respondent also cites a statement by Morris to the court, that he was trying to get a job, to contend that it is reasonable to infer that Morris entered the store with the intent to steal because he did not have money to purchase the liquor he attempted to take. However, Morris made the statement at issue after his adjudication hearing when the court was determining whether to release him from custody. Thus, this statement was not part of the record of Morriss adjudication hearing and cannot be considered in determining whether the evidence at this hearing was sufficient to sustain the courts findings.
Finally, respondent contends that it can reasonably be inferred that Morris entered the market to steal because, "according to Lozano, [Morris] went directly to the liquor area of the store." Respondent misrepresents the record. As noted earlier, Lozano testified that he saw Morris only after some clerks pointed him out and at that point, Morris was putting the liquor bottles down his pants. Further, we find that it is clear from Lozanos testimony that he did not see Morriss movements prior to the clerks pointing him out. Accordingly, we find the evidence insufficient to sustain the courts finding that Morris committed a burglary offense.
DISPOSITION
The judgment is reversed. --------------- Notes: Morris also contends the prosecutor committed Griffin error (Griffin v. California (1965) 380 U.S. 609). However, in view of our decision to reverse the judgment because of insufficient evidence, we will not address this contention.