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I. INTRODUCTION Appellant D.S., a ward of the juvenile court, appeals from a June 18, 2009, order declaring him a continued ward after the court sustained allegations that he committed burglary (Pen. Code, § 459)[1] and vandalism (§ 594, subd. (b)(2)(A)), and violated a provision of the local County Municipal Code.[2] The court committed appellant to confinement for a maximum period of five years and eight months, with credit for 362 days served. Appellant appeals the order on the following grounds: (1) there was insufficient evidence to sustain a finding of “entry” for purposes of the burglary statute; and (2) the maximum period of confinement should be reduced to conform with the court’s finding that all of the sustained allegations constitute misdemeanors. We will remand the matter to the juvenile court for a recalculation of the maximum term of confinement and otherwise affirm the order. II. FACTUAL AND PROCEDURAL BACKGROUND On February 21, 2007, the Del Norte County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging that 12-year-old appellant had committed second degree burglary (§§ 664, 459), felony vandalism (§ 594, subd. (b)(1)), and public intoxication (§ 647, subd. (f).) The Del Norte County Superior Court sustained all the allegations. Before the dispositional hearing, appellant admitted violating the conditions of his house arrest by testing positive for marijuana. On April 12, 2007, the court declared appellant a ward (Welf. & Inst. Code, § 602, subd. (a)) and placed him on probation in his mother’s home. On May 8, 2007, a new section 602 petition was filed alleging that appellant committed misdemeanor vandalism. (§ 594, subd. (b)(2)(A).) On May 23, 2007, another petition alleged that appellant violated the terms of his probation by submitting two “abnormally dilute” urine samples. On May 31, 2007, the court sustained the allegations of both petitions and ordered appellant detained for four days in juvenile hall and then released on probation. The court also ordered appellant to complete a six-week drug diversion program. Between August 2007 and May 2009, appellant committed numerous additional probation violations and served a substantial amount of time in juvenile hall. On June 8, 2009,[3] a supplemental petition was filed alleging that appellant, now 14 years old, had committed an attempted second degree burglary (§§ 664, 459) and felony vandalism (§ 594, subd. (b)(1)), while having a blood alcohol level of .01 percent or more in violation of the County Code (Del Norte County Mun. Code, § 9.42.020.) The allegations were amended on June 12 to charge second degree burglary (§ 459) rather than attempt, and to reduce the charge of felony vandalism to a misdemeanor (§ 594, subd. (b)(2)(B).) The following evidence was adduced at a contested jurisdictional hearing held on June 16 and 18: At approximately 11:30 p.m. on June 5, Buck Ward heard a banging noise outside his place of residence and occasional employment at 725 Elk Valley Road, Crescent City. Ward proceeded to investigate, but not seeing anything unusual, he started to re-enter the residential portion of the premises when he heard the sound of glass breaking at the Park City Superette (the store), located in the front part of the property. Ward ran to the front where he saw appellant climbing “halfway up in the [store] window.” Appellant was reaching in and pulling himself up, “not just on the sill outside . . . but inside [the window].” Appellant had not yet actually climbed in, but Ward testified that appellant would “have to have his hands inside and on . . . the sill of the window” to allow him to pull himself up because there is no ledge around the window. The window had been broken by a “big rock.” When he saw appellant, Ward yelled at him, causing him to drop down and start running away. Ward chased appellant and upon detaining him, recognized him as a boy who lived nearby and had previously done some work for him around the store. Appellant told Ward, “[y]ou know who I am,” and asked him not to call the police. Ward noticed that there was a cut somewhere on appellant’s hand area and that he was bleeding. Ward called Larry Childs, the owner of the property, who told him to call the police. Responding Deputy Elwood Lee observed that appellant was wearing a blood-stained sweatshirt and that he had a scratch on his right wrist. Lee took photographs of the scene and collected the sweatshirt, rock, and a glass fragment from the point of entry as evidence. Lee placed appellant under arrest. The window is four to five feet above ground level and was broken by a rock which had been thrown in from the outside. Childs testified that the window is “basically flush” with the wall on the outside of the building. Childs elaborated that if you put your hands up around the windowsill and pulled yourself up, “your hand would be inside of the building.” Photographs showing the window area were admitted into evidence. Upon completion of the hearing, the court sustained all the allegations of the petition and upheld a supplemental petition for more restrictive placement. (Welf. & Inst. Code, § 777, subd. (a).) In a dispositional hearing held on July 2, the court ordered aggregated confinement for a maximum period of five years and eight months, with credit for 362 days served. Appellant filed a timely notice of appeal on July 6. III. DISCUSSION A. “ ‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]’ ” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088, quoting In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In reviewing the sufficiency of the evidence, the appellate court must “ ‘consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citation.] We consider whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]” (People v. Romero (2006) 140 Cal.App.4th 15, 18.) In making this determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) If the evidence permits a reasonable trier of fact to conclude the charged offense was committed, the opinion of a reviewing court that the circumstances may simultaneously be reconciled with a contrary finding will not warrant reversal. (See B. Sufficiency of the Evidence Appellant contends the juvenile court’s finding of misdemeanor burglary must be modified to attempted misdemeanor burglary because there was insufficient evidence of a “completed entry” within the meaning of section 459. Appellant concedes that a hand going inside a building is an entry within the meaning of section 459, but argues that there is no substantial evidence that his hand crossed the window boundary. Appellant asserts that in all cases upholding burglary convictions “based on entry by a part of the body, there was evidence that more of the hand or body crossed the threshold than was established here.” Section 459 defines the crime of burglary.[4] “A burglary is committed when the defendant enters one of the statutorily specified premises with the intent to steal something or commit any felony; a burglary can be committed without an actual taking.” (People v. Magallanes (2009) 173 Cal.App.4th 529, 535-536, review den. July 8, 2009.) The “two elements of entry of a defined space and the essential felonious intent are not only necessary, but the intended felony is actually committed.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1378, citing People v. Walters (1967) 249 Cal.App.2d 547, 550.) “Burglary may be proved by circumstantial evidence; it is not necessary that a witness actually see the defendant breaking and entering the premises or in the vicinity thereof.” (People v. Hinson (1969) 269 Cal.App.2d 573, 577, citing People v. Acosta (1952) 114 Cal.App.2d 1.) The entry requirement of section 459 is satisfied “ ‘when any part of the body of the intruder is inside the premises. [Citations.]’ ” (People v. Calderon (2007) 158 Cal.App.4th 137, 143, quoting People v. Failla (1966) 64 Cal.2d 560, 569 (Failla).) “Any kind of entry, complete or partial, . . . will suffice” for purposes of the burglary statute, even an entry that is “just barely inside the premises.” (People v. Cal.4th 1, 13, 15.) For example, penetration into the area between a window screen and a closed window is entry for purposes of the burglary statute even when the window itself is not penetrated. (Id. at p. 13.) “The fact of entry may be established by circumstantial evidence.” (People v. Osegueda (1984) 163 Cal.App.3d Supp. 25, 32, citing People v. Murphy (1959) 173 Cal.App.2d 367, 373.) In arguing that the evidence was insufficient to support a finding of entry, appellant contends that “we know only that some portions of [appellant’s] hand or fingers were grasping the window sill as he tried to hoist himself up.” Appellant argues that the photographs show a “fairly wide sill outside the window pane,” contradicting Ward’s testimony that appellant’s hand must have been partly inside the building. Appellant also argues that Ward’s testimony was speculation because there was no evidence that Ward actually observed the placement of appellant’s hands before he shouted at appellant and appellant dropped down. Appellant contrasts the instant case with People v. Massey (1961) 196 Cal.App.2d 230 (Massey), where the defendant’s fingerprint was found on the inside of a window that opened outward. Massey does not assist appellant, however, because there was other evidence of entry in that case: the defendant had climbed in the window and was standing over the victim’s bed when she awoke and discovered him. (Massey, supra, 196 Cal.App.2d at p. 232.) Moreover, the issue in Massey was the sufficiency of the evidence to establish identity; there was no dispute regarding whether the perpetrator had actually entered the victim’s premises. (Id. at pp. 233-234.) Appellant also cites requires “evidence that more of the hand or body crossed the threshold than was established here.” In screams while “one of his feet was on her windowsill and the other was poised in midair inside her room.” ( Supreme Court rejected the defendant’s argument that he was entitled to a jury instruction on attempted burglary: “It is settled that a sufficient entry is made to warrant a conviction of burglary when any part of the body of an intruder is inside the premises.” ( is insufficient to establish entry. On the contrary, our review of the record discloses substantial evidence that some part of appellant’s body was inside the store. The juvenile court found, and appellant does not dispute, that he broke the window with a rock. Ward found appellant climbing “halfway up in the [store] window;” he was “raised up” to waist level and his head and shoulders were “more or less like entering the window.” Ward testified the windowsill is narrow and appellant would “have to have his hands inside and on . . . the sill of the window” in order to pull himself up. Ward also testified that appellant cut himself on the broken glass on his way down and was bleeding when Ward detained him. Moreover, Childs, the owner, testified that the window sill is “completely flush” or “basically flush” with the wall on the outside of the building with the exception of a small ledge that protrudes out between half an inch to “at best” one inch. Childs also testified that appellant would have to have had his hands inside the window in order to lift himself up. Finally, photographs of the window area were admitted into evidence. Based on the evidence, the juvenile court found that appellant’s hands and/or fingers were sufficiently inside the store to constitute entry within the meaning of section 459. Reviewing the record and drawing all inferences in the light most favorable to the judgment, we have no trouble concluding that substantial evidence supports this finding. Next, appellant contends that throwing a rock through the window does not constitute entry. (AOB 9 ) However, having found substantial evidence of entry based upon a portion of appellant’s body being inside the premises, we need not reach this issue. C. Finally, appellant contends that his maximum term of confinement must be recalculated. On July 2, the court held a dispositional hearing, determined the burglary to be a felony, calculated the maximum term to be five years and eight months, and committed appellant to the Bar-O ranch. On July 7, the court declared all of appellant’s offenses to be misdemeanors under section 17, subdivision (b). However, the court did not recalculate the maximum term of confinement. The Attorney General concedes that the maximum term must be recalculated to take into account the fact that the offenses are misdemeanors. (Welf. & Inst. Code, § 726, subd. (c).) The probation department listed six offenses in determining the maximum period of confinement as five years eight months: three sustained counts of vandalism (§ 594), one count of burglary (§ 459), one count of attempted burglary (§§ 664/459), and one count of public intoxication (§ 647, subd. (f)). The juvenile court adopted this calculation without elaboration. Appellant contends that the probation department’s calculation was incorrect, even if the burglary had remained a felony. The Attorney General contends that the court did not consider additional prior sustained findings for resisting arrest (§ 148), violation of a court order (§ 166, subd. (a)), and the violation of Del Norte County Municipal Code section 9.42.020. Without expressing any opinion on their merits, we outline these contentions for the benefit of the juvenile court in recalculating appellant's maximum term of confinement on remand. IV. DISPOSITION The matter is remanded to the juvenile court with directions to recalculate the maximum period of confinement. In all other respects, the order is affirmed. _ Haerle, Acting P.J. We concur: _ Lambden, J. _ Richman, J. Publication courtesy of California pro bono legal advice. Analysis and review provided by La Mesa Property line attorney. San Diego Case Information provided by www.fearnotlaw.com id=ftn1> [1] All further undesignated statutory references are to the Penal Code. id=ftn2> [2] Del Norte County Municipal Code section 9.42.020 makes it a misdemeanor for a person under the age of 21 to have a blood alcohol level of .01 percent or more while in a public place within the County. id=ftn3> [3] All further dates noted are in 2009. id=ftn4> [4] The full text of section 459 reads as follows: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.” |
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