In re B.H.

Filed 6/27/08 In re B.H. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Ronald R. Kreber, Judge. Affirmed.

Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

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B.H. appeals from the courts order continuing his wardship under Welfare and Institutions Code section 602. B. contends insufficient evidence supports the courts finding he committed misdemeanor petty theft of lost property in violation of Penal Code section 485 (appropriation of lost property with knowledge or means of inquiry as to true owner).[1] We affirm.

FACTS

On the evening of March 1, 2007, an officer conducted a routine vehicle stop on a car in which B. was a passenger. After first searching the driver (who was on probation), the officer asked passenger B. if he had anything illegal on his person, to which B. replied, No. B. then consented to a search. The search uncovered a VISA credit card in B.s right rear pocket. The front of the card displayed a womans photograph and the name Rhianna Cervanavasta, while the back bore a customer service phone number. The [activation] sticker was partially removed from the card. When the officer asked B. about the card, B. stated he found it that day in the parking lot of a Ralphs shopping center. When the officer asked what B. was going to do with the card, B. replied he was going to keep it because he thought it was cool. B. did not indicate in any way that he had attempted to locate the true owner of the card. The officer also found a cell phone in B.s possession.

B. testified in his defense that he was with his N.A. sponsor and his girlfriend on the evening of March 1, 2007. He found the credit card on the ground in the parking lot about midway between Ralphs and Starbucks. He picked it up and returned to Starbucks to ask his N.A. sponsor what he should do. He did not go into Starbucks, Ralphs or Rite-Aid to speak to their employees about a possible lost card. B. denied he ever told the officer he (B.) intended to keep the card because it was cool. Rather, according to B., he told the police he planned to bring the card to his grandfather because his grandfather would know what to do with it.

A May 2, 2007 petition subsequent alleged B. violated section 485, a misdemeanor.[2] The court found B. did violate section 485. The court found B. took custody of an unexpired credit card, the card belonged to another person, and B. made no effort to return the item. The court noted that although B. had an opportunity to make a statement to the officer to the effect that, Yes, I found this card, and Im going to return it or turn it in to you, he did not. The court found B. made incriminating statements that would indicate that he knew the situation of the card. The court continued B.s supervised wardship and his probation, and ordered him to complete 15 days on the community work program and to pay restitution.

DISCUSSION

B. contends the courts finding he violated section 485 lacks sufficient evidentiary support in two respects. First, he claims the evidence was insufficient to show the credit card was lost. Second, and alternatively, he asserts insufficient evidence showed he misappropriated the credit card before making reasonable and just efforts to find the true owner.

Section 485 provides: One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use . . . without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

[I]n reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, on review of the entire record in the light most favorable to the judgment, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Young (2005) 34 Cal.4th 1149, 1180.) Evidence, to be substantial must be of ponderable legal significance . . . reasonable in nature, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

Substantial Evidence Showed the Credit Card was Lost

Relying on Peoplev. Stay (1971) 19 Cal.App.3d 166 (Stay), B. contends the evidence was insufficient to show the credit card was lost within the meaning of section 485. The issue in Stay was whether the defendant stole shopping carts from grocery stores, or instead rounded up lost carts and tried to collect a finders fee from the stores pursuant to Civil Code section 2080 (the finders statute). (Stay, at pp. 171-172.) The finders statute generally requires a finder of lost property to return it to a known owner, charging only a reasonable finders fee. (Id. at p. 171, fn. 3.) Over the course of a year, the defendant had picked up about 500 carts a week from public areas where store customers had left them. (Id. at pp. 168-169, 170.) The stores knew generally where the carts could be found, and contracted with retrieval services to pick up the carts for about 25 cents per cart or had their box boys retrieve the carts. (Id. at pp. 170-171.) The defendant who did not have the stores consent to take their carts asked the stores to pay a finders fee of $2.50 per cart in his possession, threatened to otherwise sell the carts, and did sell the carts to third parties after removing or painting over the ownership indicia. (Id. at pp. 169-170.)

Stay focused on the meaning of the term, lost, for purposes of the finders statute and section 485.[3] (Stay, supra, 19 Cal.App.3d at p. 172.) The defendant to support his argument the carts had been lost relied on two out-of-state cases in which a finder found lost property that had been (1) stolen by thieves from the true owner and (2) abandoned by the thieves in a location unknown to the owner. (Id. at pp. 172-173, discussing Flood v. City Nat. Bank of Clinton (1934) 218 Iowa 898 (Flood) & Automobile Ins, Co. of Hartford, Conn. v. Kirby (1932) 25 Ala.App. 245 (Kirby).) Quoting from Flood and Kirby, Stay recited (1) dictionary definitions of lost, including taken away to some place unknown to the owner or former possessor, or left as by accident, in a forgotten place (Stay, at p. 172), and (2) the rule that [g]oods or chattels are lost in the legal sense of the word only when the possession has been casually and involuntarily parted with, so that the mind has no impress of and can have no recourse to, the event. (Id. at p. 173.) Stay concluded neither Flood nor Kirby compelled the conclusion that the carts were lost, noting that in Flood and Kirby the location of the stolen property was unknown to the true owner, and the thieves . . . attempted to conceal or use the property sufficiently far from the place from which it was taken that the owner and authorities would remain ignorant of its whereabouts. (Stay, at p. 173.) In contrast, in Stay, the store patrons who took the carts off the lots had no intention of permanently depriving the markets of their property . . . and did not conceal the carts, the stores knew their carts were being removed from the premises by patrons and within what areas . . . the majority of the carts could be picked up, and the stores retrieved these carts on a regular basis. (Id. at p. 174.) Stay concluded it could not reasonably be said that the carts were lost. (Ibid.) Accordingly, the appellate court affirmed the defendants conviction for grand theft of the carts. (Id. at pp. 175-176.)

B. claims Stay dictates that property is not lost when the owner knows where it is and the reasons for its removal. He asserts the record in this case is void of any evidence demonstrating that the credit card owner was ignorant as to the credit cards whereabout[s], or why it had strayed from her possession, as the credit card owner was not called to testify.

B.s argument is unpersuasive. Although the credit card owner did not testify, the location of the card on the ground of a parking lot is sufficient evidence to show the cards owner inadvertently and unknowingly dropped it, as opposed to intentionally leaving it on the ground, or authorizing someone else to leave it there, or discarding it there. This is particularly true because the credit card was still valid; the card was received into evidence and the court stated in its ruling that the card was not expired. In sum, substantial evidence supported the courts finding the credit card was lost within the meaning of section 485.

Substantial Evidence Showed B. Misappropriated the Card Before Making Reasonable and Just Efforts to Find the Owner

B. contends the evidence was insufficient to show he misappropriated the credit card before making reasonable and just efforts to find the true owner because B. only momentarily possessed the credit card. In fact, the evidence did not show B. only momentarily possessed the card. In any case, B.s statement to the officer at the time of the vehicle stop that he (B.) was going to keep [the card] because he thought it was cool is sufficient evidence to show he misappropriated the card before making reasonable efforts to find the owner. At that time, he had not phoned the bank contact number listed on the card (although he had a cell phone), nor had he contacted employees at Ralphs or any of the nearby business establishments about the card, nor had he made any other efforts to find the true owner.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] B. had previously been declared a ward of the court under Welfare and Institutions Code section 602 on December 18, 2006.

[3] Ultimately, the court determined neither section applied to the case. (Stay, supra, 19 Cal.App.3d at pp. 172-174.)