Opinion
H047583
11-20-2020
In re A.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.O., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 17JV42828C)
Appellant A.O. (the minor) was placed on probation after the juvenile court found that she had received a stolen vehicle (Pen. Code, § 496d, subd. (a)). The minor contends that the receiving count was not supported by substantial evidence and that a remand is required because the court failed to expressly declare that it was exercising its discretion to treat the receiving count as a felony rather than as a misdemeanor. The Attorney General concedes that a remand is required for an express declaration, and we agree. We reject the minor's substantial evidence challenge.
I. EVIDENCE PRESENTED AT JURISDICTIONAL HEARING
Mariah Gomez was Michelle Sandberg's "house manager." Sandberg had a very large house and multiple employees. Gomez's fiancé also worked for Sandberg. In April or May 2019, Gomez hired the minor to work as Sandberg's housekeeper. Gomez also hired the minor to clean Gomez's apartment. Gomez's apartment had a security system that required a security code to be entered on a keypad to open the front door. Gomez gave the security code to the minor and the minor's mother, who also sometimes cleaned Gomez's apartment. Gomez did not give the code to anyone else except her fiancé.
While the minor was employed by Sandberg, the minor complained to Gomez that Gomez's fiancé had sent her a text saying he wanted to have sex with her, which made her uncomfortable. Gomez confronted her fiancé, and he denied doing so.
Near the end of June 2019, Gomez moved from her apartment to a house in San Jose. She installed the same keypad and used the same security code at her new home that she had used at her apartment. Gomez did not give the minor her new address. Around the time Gomez moved, Sandberg terminated the minor's employment. The minor blamed Gomez for her termination even though Gomez told the minor that she was not responsible Gomez provided the minor with references twice after the minor's employment was terminated, but Gomez subsequently told the minor that she could no longer do so "because [the minor] wouldn't show up on time and her work performance was not good."
On July 12, 2019, at approximately 4:30 p.m., Gomez and her fiancé went to Santa Cruz. When they returned at 9:30 p.m., the front door of their house was ajar and unlocked. Their Honda Accord and their Ford Raptor were both missing. The house was "a mess," and Gomez's purses, keys, and jewelry were missing, along with a new Apple laptop computer and "printouts of check stubs—checks." Gomez immediately called the police and told the police that she suspected the minor. She had a GPS tracker on the Raptor, and she used it to track the location of the vehicle.
Although the parties cite testimony by Gomez regarding statements the minor had made to her about committing burglaries, this testimony appears to have been stricken by the juvenile court in response to a defense "character evidence" objection. We therefore disregard it.
At 10:52 p.m., Santa Clara Police Officer Miceli located the Raptor parked in a Motel 6 parking lot in Santa Clara. The Raptor was unoccupied. At 11:15 p.m., Miceli saw four people he could not describe run from the Motel 6 and get into the Raptor, which then left the parking lot at a high rate of speed.
The Raptor was next spotted by a sheriff's helicopter in Santa Clara, which reported that there were "four subjects nearby." At 11:15 p.m., Santa Clara Police Officer Cesar Rodriguez made contact with the three females and one male near the Raptor. One of the females was the minor. The male consented to a search, and the Raptor's key was found in his pocket.
The officer also inconsistently testified that he made contact sometime after 2:50 a.m. on July 13, 2019. His 11:15 p.m. testimony is consistent with his police report, which is in the record but was not admitted into evidence at the hearing. The minor points out this "conflicting evidence," but, given our standard of review, we must presume in support of the court's order that it credited the 11:15 p.m. testimony.
II. PROCEDURAL BACKGROUND
A petition was filed alleging that the minor had committed first degree burglary (§ 460, subd. (a)) and receiving a stolen vehicle. After a contested jurisdictional hearing, the juvenile court found the receiving count true but concluded that the burglary count had not been proved beyond a reasonable doubt.
At the extremely brief dispositional hearing, the court made no declaration that the receiving count was either a felony or a misdemeanor. The court's signed dispositional order contained this statement: "The court previously sustained the following counts. Any charges which may be considered a misdemeanor or a felony for which the court has not previously specified the level of offense are now determined to be as follows: [¶] Pet. C: Ct. 2: PC496d(a) Felony [¶] Pet. D: Ct. 1: VC12500(a) Misdemeanor." The minor was declared a ward and placed on probation in her parents' home. She timely filed a notice of appeal.
The driving without a license count was unrelated.
III. DISCUSSION
A. Substantial Evidence
The minor contends that the receiving count was not supported by substantial evidence that she possessed the Raptor or that she knew it was stolen.
"[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.' " (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on a different point in In re Sassounian (1995) 9 Cal.4th. 535, 543, fn. 5.) A trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 891.) "Evidence is sufficient to support a conviction only if it is substantial, that is, if it ' "reasonably inspires confidence" '[citation], and is 'credible and of solid value.' " (Ibid.)
"[T]o sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property." (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).)
The minor argues that her mere presence near the Raptor was insufficient to show that she possessed the vehicle. "Possession of the stolen property may be actual or constructive and need not be exclusive." (Land, supra, 30 Cal.App.4th at p. 223, fn. omitted.) "[U]nlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence." (People v. Williams (1971) 5 Cal.3d 211, 215.) "[P]hysical possession is not required, as it is sufficient if the defendant acquires a measure of control or dominion over the stolen property. However, mere presence near the stolen property in and of itself is insufficient evidence of possession to sustain a conviction for receiving stolen property." (In re Anthony J. (2004) 117 Cal.App.4th 718, 728 (Anthony J.).
The minor relies on People v. Zyduck (1969) 270 Cal.App.2d 334. In Zyduck, the sole evidence against the defendant was that a day after a chain saw was stolen the chain saw was discovered on the rear seat of a car in which the defendant was the front seat passenger. (Id. at p. 335.) The Court of Appeal held that neither the defendant's presence in the passenger seat nor his opportunity to access the chain saw supported a finding that he was in possession of the chain saw. (Id. at pp. 335-336.) It held that "some additional fact is essential," though it could "be rather slight." (Id. at p. 336.)
Unlike in Zyduck, the minor's presence near the Raptor was not the sole evidence supporting a finding that she had "a measure of control or dominion over" the Raptor. She was the only person among the four individuals found near the Raptor who was known to have access to the location from which the Raptor's key had been taken because she was one of the very few people who knew the security code to Gomez's home. The Raptor had been discovered missing from Gomez's home just a couple of hours before the minor was found near it, and a reasonable inference could be drawn that the four individuals seen hastily leaving the Motel 6 in the Raptor were the same four individuals seen near the Raptor a very short time later. The simple fact that the Raptor's key was in the pocket of one of the other individuals did not negate this evidence. The minor's involvement in the obtaining of the Raptor supported a reasonable inference that she shared control over the Raptor.
The other cases the minor cites provide no support for her argument that she did not possess the Raptor. The defendant in Land was the passenger in a stolen car that a friend was driving during the two men's crime spree, and the friend had told the defendant that the car was stolen. (Land, supra, 30 Cal.App.4th at pp. 222-223.) The Court of Appeal acknowledged that mere presence in the car and knowledge that it was stolen were not enough to support a receiving count. (Id. at pp. 224-226.) "[A]dditional factual circumstances are necessary to establish a passenger has possession or control of the stolen car." (Id. at p. 228.) The Court of Appeal found those additional circumstances satisfied based on the defendant's close friendship with the driver and their use of the car during their joint crime spree within an hour after the car was stolen. The court held that these circumstances showed that the defendant had constructive possession of the car. (Id. at p. 228.)
Of course the additional circumstances cited by the Court of Appeal in Land were different than those here, but the key point in Land was that a passenger in a stolen vehicle may be found to be in constructive possession of the vehicle if other circumstantial evidence supports such a finding. Here, the minor's unique relationship with the acquisition of the Raptor provided the requisite additional circumstances.
The minor's reliance on Anthony J. is misplaced. In Anthony J., four young black men were seen fleeing from a BMW that had parked in a parking lot. The BMW had been stolen three days earlier. A police officer made contact with four young black men at a nearby bus stop. One of the men was Anthony, and another was the young man who had driven the BMW into the parking lot. (Anthony J., supra, 117 Cal.App.4th at pp. 722-723.) The BMW's keys were found near the bus stop. (Id. at p. 723.) The Court of Appeal concluded that there was insufficient evidence that Anthony was in possession of the BMW because there were no additional facts beyond Anthony's mere presence in the BMW to show that he possessed it. (Id. at p. 729.) In this case, however, there were such additional facts: the minor was uniquely linked to the acquisition of the Raptor. Here, the evidence was sufficient to show that the minor was in constructive joint possession of the Raptor.
The minor also challenges the sufficiency of the evidence to prove that she knew the Raptor was stolen. "Knowledge that property was stolen can seldom be proved by direct evidence and resort must often be made to circumstantial evidence. However, no distinction is made between direct and circumstantial evidence in the degree of proof required. [Citation.] 'Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.'" (People v. Vann (1974) 12 Cal.3d 220, 224.)
The minor argues that there was "no 'slight corroboration'" to show that she knew that the Raptor was stolen. We disagree. The minor's link to the acquisition of the Raptor from Gomez's home was more than the "slight corroboration" that was required to support a reasonable inference that she was aware that the Raptor was stolen given that she was in constructive possession of the Raptor very soon after it was stolen.
Consequently, we reject the minor's challenges to the sufficiency of the evidence to support the receiving count.
B. Court's Failure to Make an Express Declaration
The minor contends, and the Attorney General concedes, that a remand is required because the juvenile court failed to expressly declare that the receiving count is either a felony or a misdemeanor.
Receiving a stolen vehicle is punishable as either a felony or a misdemeanor. (Pen. Code, § 496d, subd. (a).) "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." (Welf. & Instit. Code, § 702, italics added.)
In In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy), the California Supreme Court held that a remand was required where the juvenile court had failed to make an express declaration as to whether the offense was a felony or a misdemeanor. In Manzy, the offense had been alleged as a felony, and Manzy had admitted the allegation. (Id. at p. 1202.) The juvenile court had committed Manzy to the California Youth Authority and set his maximum term of physical confinement at three years, a felony-level term. (Id. at p. 1203.) The California Supreme Court held that Welfare and Institutions Code section 702's requirement of an express declaration required a remand. The court noted that a mere reference to the offense as a felony in the minutes of the dispositional hearing would not obviate the need for an express declaration by the court. (Manzy, supra, at pp. 1207-1208.)
The California Supreme Court pointed out in Manzy that a remand was not "automatic" whenever the juvenile court failed to make an express declaration. (Manzy, supra, 14 Cal.4th at p. 1209.) "[T]he record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Ibid.)
In this case, the juvenile court never made an express declaration that the receiving count should be treated as a felony, and the record as a whole does not establish that the juvenile court was aware of its discretion to treat the receiving offense as a misdemeanor.
The court's signed dispositional order contained the following boilerplate language: "The court previously sustained the following counts. Any charges which may be considered a misdemeanor or a felony for which the court has not previously specified the level of offense are now determined to be as follows:" Below this language, the order listed: "Pet. C: Ct. 2: PC496d(a) Felony [¶] Pet. D: Ct. 1: VC12500(a) Misdemeanor." This language did not constitute the requisite express declaration because it did not demonstrate that the court was aware of the status of the receiving count, which it listed along with the Vehicle Code count. A violation of Vehicle Code section 12500, subdivision (a) is not punishable as a felony. Instead, such a violation is punishable as either a misdemeanor or an infraction. (Pen. Code, §§ 17, subd. (d), 19.8, subd. (a).) It follows that the inclusion of this boilerplate language in the dispositional order does not establish that the court knew that the receiving count was punishable as either a felony or a misdemeanor.
Accordingly, we agree with the parties that the record does not reflect that the court exercised its discretion to declare the receiving count to be either a felony or a misdemeanor. Hence, a remand is required for the court to exercise its discretion in this regard.
IV. DISPOSITION
The juvenile court's order is reversed, and the matter is remanded for the juvenile court to exercise its discretion to declare the receiving count to be either a felony or a misdemeanor.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
DANNER, J.