In re D.H.

In re D.H.

Filed 8/8/08 In re D.H. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re D.H., a Person Coming Under the Juvenile Court Law.	B204295 (Los Angeles County Super. Ct. No. JJ15335)
THE PEOPLE, Plaintiff and Respondent, v. D.H., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, S. Robert Ambrose, Referee (pursuant to Cal. Const., art. VI, 21). Affirmed as modified.

Bruce G. Finebaum, 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, Lance E. Winters, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

The juvenile court found that defendant and appellant D.H. came within the provisions of Welfare and Institutions Code section 602 because he committed three felonies: second degree robbery (Pen. Code, 211), attempted second degree robbery (Pen. Code, 664/211), and unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)). The juvenile court declared D.H. a ward of the court and ordered him to camp community placement for six months. On appeal, D.H. contends that there is insufficient evidence to support the juvenile courts finding that he unlawfully drove or took a vehicle in violation of Vehicle Code section 10851, subdivision (a). D.H. also contends that the minute order for his adjudication must be corrected to reflect the six year, four month maximum period of physical confinement (Welf. & Inst. Code, 726, subd. (c)) that the juvenile court announced orally rather than the seven year, four month period that the minute order reflects. We asked the parties to submit supplemental briefs addressing the issue of whether the six year, four month maximum period of physical confinement that the juvenile court announced orally was error. We affirm the order adjudging D.H. a ward of the juvenile court. The minute order for the adjudication is modified to reflect a maximum period of physical confinement of six years, two months.

BACKGROUND[1]

About 5:30 p.m. on September 19, 2007, Deputy Sheriff Daniel Whitten and other officers participated in a bait car operation in the area of Firth Avenue and 92nd. A female undercover officer drove a bait car to the location and parked it legally along the curb on the west side of the street. The female officer left the engine running. D.H. was sitting on the same side of the street, talking with another person who was present.

The female officer got out of the bait car and, as part of the bait operation, engaged in a verbal altercation with other female officers who had arrived in a follow car. After the altercation, the female officer got into follow car with the other female officers and drove away. About 30 or 45 seconds after the officers drove away, D.H. and the other person present got into the bait car, and D.H. drove the car south on Firth Avenue about 100 yards before pulling into the driveway of his own residence.

After D.H. pulled into his driveway, Deputy Whitten turned off the car and locked the doors by remote control. Deputy Whitten turned off the bait car at the mouth of the driveway for officer safety reasons. Deputy Whitten did not want D.H. to drive the car down the long driveway to his residence, which might place the officers in danger. Deputy Whitten assumed that D.H. was going to drive the car down the driveway because the car was still rolling when Deputy Whitten turned it off. Deputy Whitten assumed that D.H. and his companion were stealing the car; that is why he locked the cars doors.

DISCUSSION

I. Sufficient Evidence Supports The Juvenile Courts Determination That

D.H. Violated Vehicle Code Section 10851, Subdivision (a)

D.H. concedes that he drove the bait car without the owners consent, but contends that insufficient evidence supports the juvenile courts determination that he drove or took a vehicle in violation of Vehicle Code section 10851, subdivision (a) because there is no evidence that he had the specific intent to deprive the cars owner of title to or possession of the car. D.H. further contends that merely driving the bait car 300 feet to a driveway, without more, is insufficient corroboration to infer guilt. Sufficient evidence supports the juvenile courts determination.

A. Standard of Review

We review claims of insufficient evidence to sustain a criminal allegation in a petition under Welfare and Institutions Code section 602 using the same standard as in a criminal case. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ([People v.] Rowland [(1992) ] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a 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. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].) (People v. Young (2005) 34 Cal.4th 1149, 1175.)

B. Application of Relevant Legal Principles

Vehicle Code section 10851, subdivision (a) provides, (a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.

The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendants driving or taking of a vehicle belonging to another person, without the owners consent, and with specific intent to permanently or temporarily deprive the owner of title or possession. [Citations.] (People v. Windham (1987) 194 Cal.App.3d 1580, 1590 [240 Cal.Rptr. 378].) Accordingly, knowledge that the vehicle was stolen is not an element of the offense. Such knowledge is merely one of various alternative factors evidencing an intent to deprive the owner of title and possession. (People v. Hallman (1973) 35 Cal.App.3d 638, 641 [110 Cal.Rptr. 891].) (People v. Green (1995) 34 Cal.App.4th 165, 180.)

The evidence shows that D.H. got into the bait car and drove it to his residence. Deputy Whitten turned off the car before D.H. drove it down D.H.s long driveway. We can infer from the evidence that D.H. did not have the consent of the bait cars owner to take the car and drive it away. Such evidence is sufficient to establish that D.H. specifically intended to permanently or temporarily deprive the bait cars owner of possession of the car. (People v. Green, supra, 34 Cal.App.4th at p. 180.) Accordingly, sufficient evidence supports the juvenile courts determination that D.H. violated Vehicle Code section 10851, subdivision (a).

II. Maximum Period Of Physical Confinement

We asked the parties to submit supplemental briefs addressing the issue of whether the juvenile court erred when it announced orally a maximum period of physical confinement for D.H. of six years, four months pursuant to Welfare and Institutions Code section 726, subdivision (c).[2] The parties agree that the juvenile court should have set a maximum period of six years, two months.

When the juvenile court enters an order of wardship under Welfare and Institutions Code section 602 and removes a minor from his parents physical custody, the order must specify that the minor may not be held in physical confinement for a period that exceeds the maximum term of imprisonment that could be imposed on an adult convicted of the same offense or offenses. (Welf. & Inst. Code, 726, subd. (c).)[3] In this case, D.H. was found to have committed second degree robbery, attempted second degree robbery, and unlawful driving or taking of a vehicle. The maximum term of imprisonment for second degree robbery is five years. (Pen. Code, 213, subd. (a)(2).) The maximum consecutive term of imprisonment for attempted second degree robbery is one-half of one-third of the middle term of three years (36 months) or six months. (Pen. Code, 213, subd. (a)(2), 664, subd. (a), & 1170.1, subd. (a).) The maximum consecutive term of imprisonment for unlawful driving or taking of a vehicle is one-third of the middle term of two years (24 months) or eight months. (Veh. Code,  10851, subd. (a); Pen. Code, 18 & 1170.1, subd. (a).) Therefore, the juvenile court should have set a maximum period of physical confinement of six years, two months, and we order the minute order for D.H.s adjudication modified accordingly.

DISPOSITION

The order adjudging D.H. a ward of the juvenile court is affirmed. The minute order for the adjudication is ordered modified to reflect a six year, two month maximum period of physical confinement.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] Because D.H.s appeal is limited to the issues of whether sufficient evidence supports the finding that D.H. unlawfully took or drove a vehicle (Veh. Code, 10851, subd. (a)) and the correct calculation of the maximum period of physical confinement (Welf. & Inst. Code, 726, subd. (c)), we dispense with a recitation of the facts concerning the findings that D.H. committed second degree robbery (Pen. Code, 211) and attempted second degree robbery (Pen. Code, 664/211).

[2] The minute order for D.H.s adjudication reflects a seven year, four month maximum period of physical confinement rather than the six year, four month period that the juvenile court announced orally. Because we hold that the juvenile courts orally announced six year, four month maximum period was error in the first instance, we need not address D.H.s contention that the seven year, four month maximum period reflected in the subsequent minute order was clerical error.

[3] Section 726, subdivision (c) provides, in pertinent part:

If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

As used in this section and in Section 731, maximum term of imprisonment means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.

If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the maximum term of imprisonment shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code.

If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the maximum term of imprisonment is the longest term of imprisonment prescribed by law.

Physical confinement means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.