Opinion
2d Juv. No. B297956
06-02-2020
In re L.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.B., Defendant and Appellant.
George Kita, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NJ29837)
(Los Angeles County)
L.B. appeals the juvenile court's order sustaining a wardship petition (Welf. & Inst. Code, § 602) alleging the minor committed second degree commercial burglary (Count 1); felony vandalism (Count 2); and possessed burglary tools (Count 3). (Pen. Code, §§ 459, 594 & 466.) The court sustained Counts 1 and 3. It sustained Count 2 as a lesser included misdemeanor. In doing so it made no mention of the basis of the burglary (i.e. larceny or any felony); it found the evidence insufficient to prove the vandalism involved more than $400. Appellant contends there was insufficient evidence to sustain any of the charges and that the court improperly permitted petitioner to amend its petition to change the named victim of the burglary.
Appellant contends that because the trial court reduced the vandalism to a misdemeanor, the evidence was insufficient to show the entry was to commit a felony. We conclude that while the parties focused on "felony vandalism" as the object of the entry, substantial evidence supports a finding that the entry was for the purpose of theft; the petition charged the burglary as an entry with the intent to commit larceny or any felony". We also conclude that the court did not abuse it discretion in permitting the amendment of count 1. The amendment, however, did not alter the prosecutions burden because none of the elements of the crime were implicated.
The parties argued both at trial and in their respective briefs that the entry was for a felonious vandalism. We have notified the parties that this court was considering the alternate theory that the entry was for a theft. (See Gov. Code, § 68081.)
The court declared L.B. a ward of the court, removed him from parental custody and committed him to camp for five to seven months. It did so based on the minor's delinquency history which included the burglary of a school, making criminal threats, assault with a deadly weapon; possession of a firearm, and a home invasion robbery using a weapon. He had a previous commitment to the Department of Corrections, Division of Juvenile Justice.
We affirm.
FACTS AND PROCEDURAL HISTORY
At 2:50 a.m. on March 15, 2019, Long Beach police officers responded to a report of a burglary in progress at "Miko's Bar." Upon arrival Officer Edward Esquivel saw that the bottom of the bar's glass front door was shattered inward. He saw a person he later learned was L.B. "stick his head out of the shattered portion of the door and then stick his head back in." He ordered L.B. to come out. Both L.B. and a second male came out. They were immediately detained.
Esquivel entered what appeared to be a vacant room. In the common wall shared with what the officer later learned was a marijuana dispensary, Esquivel saw a three-by-one foot hole. Nearby lay dry wall debris, a pickax, a sledgehammer and a backpack containing bolt cutters. Dust was seen hanging in the air. He saw nothing to indicate construction was underway.
Cindy Tang owned the property. She testified it had formerly housed Miko's Bar and that she had not given L.B. permission to enter. She said that the property was undamaged when she purchased it in November 2018 and that she did she not authorize any work on it. She had not obtained any estimates to repair the damage.
DISCUSSION
Amendment of the Petition
After the parties had rested and argument began, but before the prosecution's closing, it sought to amend the petition to conform to proof that the owner of the premises was Cindy Tang and not "Pacific Partners," as alleged in the petition. Defense counsel objected contending that petitioner was "putting [in] different kind of charges," and could not amend the petition during adjudication. Following a continuance at minor's request the court granted the motion. We review for an abuse of discretion. (In re D.W. (2015) 236 Cal.App.4th 313, 321.)
Ms. Tang testified to the ownership of the property. She was one of the partners in Pacific Partners. --------
A petition cannot be amended at adjudication to charge a new offense (In re Robert G. (1982) 31 Cal.3d 437, 445). "The identification or name of the individual owner was not material to the nature of the charge when, as here, the minor was permitted to examine the witness as to the extent of the damage" caused to property "owned by someone other than the minor." (In re Man J. (1983) 149 Cal.App.3d 475, 480). Tang testified as the owner and to her interest in the property. L.B. declined the court's offer to reopen his defense. The court did not err and, in any event, there was no prejudice. But for the name of the victim, not an element of the offense, the facts of the case did not change.
Sufficiency of the Evidence
The evidence presented rather clearly shows that two minors broke into an empty store for the purpose of gaining access to the adjacent dispensary and stealing marijuana. These events occurred in the early morning hours. The door to the vacant bar was shattered, the common wall between the bar and the dispensary was partially broken through, dust was in the air and debris was on the ground beneath the hole. Laying nearby was a pickax, a sledgehammer and a backpack containing bolt cutters. The hour was late. Appellant and his co-offender were the only ones on the premises when the police arrived. Appellant's head was seen to pop out of and return into the bar.
We review the record in the light (spotlight) most favorable to the judgment, do not rewrite evidence or reassess witness credibility, and draw all inferences the trial court could reasonably deduce. (People v Jones (2013) 57 Cal.4th 899, 960; People v Lindberg (2008) 45 Cal.4th 1, 27.)
Burglary is the entry into a structure with intent to commit larceny or any felony. (§459.) There is no doubt that was occurring when the police arrived. Yet the parties led the court into the extensive discussion of an entry for the purpose of committing felony vandalism. The logic follows that if the vandalism wasn't felonious, and it was determined by the court not to be, then the entry could not be a burglary. As we have explained, the cold record is simply to the contrary. Even if the intent was to steal from the adjacent dispensary, the offense is still a burglary - perhaps two. (People v Nunley (1985) 168 Cal.App.3d 225, 231-233.)
The evidence is clear that these two young men had embarked on a joint venture. The tools that were found on the property were incontestably part of that ill-advised journey. They were caught in the act while the dust from the wall still hovered in the air.
The judgment is affirmed.
NOT TO BE PUBLISHED
PERREN, J. We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
Gibson W. Lee, Judge
Superior Court County of Los Angeles
George Kita, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.