In re Danny N.

Filed 8/31/09 In re Danny N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Orange County, Donna L. Crandall, Judge. Affirmed as modified.

Christian C. Buckley, 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, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

The juvenile court found true beyond a reasonable doubt the allegations of a petition subsequent (petition) charging Danny N. (the Minor), a ward of the court, with first degree residential burglary under Penal Code sections 459 and 460, subdivision (a). The court ordered the Minor continue as a ward of the court, committed him to juvenile hall for 90 days, and ordered terms and conditions of probation.

The People tried the case on the theory the Minor had aided and abetted the residential burglary. At the close of the Peoples case‑in‑chief, the Minor moved to dismiss under Welfare and Institutions Code section 701.1.[1] The Minor argues that the juvenile court erred by denying the motion because the People failed to prove corpus delicti, and, therefore, his extrajudicial statements were inadmissible as evidence of guilt. Without those statements, the Minor argues, the evidence was insufficient to support the true finding on the petition.

For reasons we will explain, we conclude the People met their burden of proving corpus delicti. We therefore affirm the true finding on the allegations of first degree residential burglary in the petition, with the modifications to the terms and conditions of probation requested by the Minor.

Facts and Procedural History

On May 14, 2007, Kobe Pham returned to his home on Taft Street in Garden Grove to find his laptop computer and a piggy bank containing $500 were missing. Pham had not given anyone permission to take his property. He had inadvertently left the window to his room open that morning, but noticed the window screen had been removed and found dirt on top of a two-foot high closet next to the window. Although Pham always left the door to his room closed, it was open when he came home, as was a side door leading outside.

Earlier on May 14, Phams neighbor, Armida Flores, heard from another neighbor that something was happening at Phams residence. She investigated the situation and discovered Phams front door was wide open. Flores yelled, hello, is anyone home as she approached the house and again upon entering, but nobody responded. Flores discovered that the homes alarm system had been disassembled, and she called 911.

Garden Grove Police Officer John Flaws interviewed the Minor in September 2007 after receiving information from a police investigator. Flaws asked about a burglary he believed involved the Minor and a person named T.T. The Minor, who had acknowledged knowing T.T., began to tell Flaws about an incident for which the Minor had been arrested. Flaws clarified he wanted to talk about a different burglary, one in which a laptop computer had been taken. The Minor began to talk about an incident in which the Minor, T.T., and a third person had been walking to a cybercaf. On the way, the Minor stood outside the front of a house while T.T. walked into the backyard and returned with a laptop computer. The Minor then agreed to accompany Flaws to see a house on Taft Street.

Flaws drove the Minor past Phams house. The Minor recognized the area as the one in which T.T. had taken the laptop computer, but did not specifically recognize Phams house. Flaws drove the Minor back to his high school and arrested him.

Flaws took the Minor to the Garden Grove police station and advised him of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. The Minor talked about the burglary, described the house that was burgled, and described the property taken from the house. Flaws testified that the Minor told him that he stayed outside and acted as lookout while his friend T.T. went into the backyard and looked for an entry point to the house.

At the close of the Peoples case‑in‑chief, the Minor moved to dismiss the petition pursuant to Welfare and Institutions Code section 701.1. The juvenile court denied the motion.

The Minor testified that while walking down Taft Street with T.T. and another friend, T.T. suddenly broke away and walked into Phams backyard. T.T. returned five to 10 minutes later and told them to keep on walking. The three walked to a Starbucks, where T.T. showed the Minor a laptop computer and a piggy bank containing $500 or $600 that were taken from the house. T.T. bought food for everyone at a local Del Taco restaurant, but otherwise kept the money from the piggy bank for himself.

The juvenile court found the allegations of residential burglary of the petition true beyond a reasonable doubt, stating, I do believe that [the Minor] made statements that he was a lookout. The court ordered the Minor continue as a ward of the court, committed him to juvenile hall for 90 days, and ordered terms and conditions of probation, including the following:

. . . 9. Do not have any dangerous or deadly weapon in your possession, or knowingly be in the presence of any illegally armed person. [] . . . []

. . . 11. Do not associate with anyone named by the Court, your parent/guardian, or probation officer, or anyone who you know is on probation or parole, or a criminal street or tagging crew, or using/selling/possessing, or under the influence of alcohol or controlled substances. [] . . . []

. . . 14. Do not contact or cause to be contacted the victims/witnesses of any offense alleged against you.

The terms also included the following condition:

Minor not to initiate contact or cause to be contacted by any means with Kobe Pham[,] the victims or witnesses of any offense alleged against you.

Discussion

The Minor contends the juvenile court erred by (1) denying his motion to dismiss under Welfare and Institutions Code section 701.1, and (2) failing to include knowing requirements within the terms and conditions of the probation. We conclude the juvenile court did not err by denying the Minors motion to dismiss. The Attorney General does not dispute the second contention, and we modify the terms and conditions of the probation accordingly.

I. Substantial Evidence and Corpus Delicti

A. Legal Standards

Welfare and Institutions Code section 701.1 is substantially similar to Penal Code section 1118 and as such is treated identically. (In re Anthony J. (2004) 117 Cal.App.4th 718, 727.) Under Penal Code section 1118.1, a defendant can move for a judgment of acquittal based on insufficiency of the evidence before submission of the case to the trial court or jury. (See People v. Hatch (2000) 22 Cal.4th 260, 269, fn. 5 [Penal Code section 1118.1 gives the defendant the power to move for an acquittal for insufficient evidence as a matter of law].)

The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citation.] The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case. [Citations.] The question is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination. [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] (People v. Stevens (2007) 41 Cal.4th 182, 200.)

We independently review a trial courts ruling under Penal Code section 1118.1 as to the sufficiency of the evidence to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1213.)

B. The Juvenile Court Did Not Err by Denying the Minors Motion to Dismiss Under Welfare and Institutions Code section 701.1.

The Minor argues his motion to dismiss should have been granted because there was a lack of corpus delicti in that the People had not produced any independent evidence to corroborate [the Minor]s alleged statement to the police that he acted as a lookout to the burglary or aided the burglary in any way. We conclude the People met their burden of proving the corpus delicti of burglary.

The California Supreme Court has defined the corpus delictirule as follows: In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itselfi.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168.) In every case, once the necessary quantum of independent evidence is present, the defendants extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.] (Id. at p. 1171.) Under People v. Alvarez, the People had to prove the corpus delicti of a burglary before the court could consider the Minors statements to Flaws.

The Minor was charged with burglary under an aiding and abetting theory, based on the Minors statements to Flaws that he acted as a lookout while T.T. broke into Phams house. To prove guilt under an aiding and abetting theory, the People must prove the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.)

The Minor concedes a burglary took place. He claims, however, the People failed to satisfy its burden of proving the corpus delicti because it failed to present evidence that the Minor had the requisite intent to aid and abet the burglary, or that he acted in furtherance of that intent.

The California Supreme Court rejected a similar argument in People v. Gutierrez (2002) 28 Cal.4th 1083. The defendant in Gutierrez was found guilty of aiding and abetting a rape. (Id. at p. 1106.) The defendant argued the only evidence of his aiding and abetting the rape came from his own testimony at his sons juvenile hearing, and the prosecution failed to prove corpus delicti of his role as an aider and abettor. (Id. at pp. 1126, 1128.) In response, the California Supreme Court stated: Defendant misconstrues the corpus delicti rule. It is not necessary for independent evidence to establish defendant as the perpetrator in order to satisfy the rule. [Citations.] More specifically, it has been held that in a case tried on an aiding and abetting theory, the requisite knowledge and intent required for aider‑abettor liability are not elements of the corpus delicti that must be proved independently of any extrajudicial admissions for purposes of establishing the corpus delicti. (Id. at p. 1128, italics added.) People v. Gutierrez cited People v. Ott (1978) 84 Cal.App.3d 118, in which the court stated, the corpus delicti must be established with respect to the underlying criminal offense, rather than the theory of aiding and abetting which, in the absence of the commission of the main crime, would not be punishable at all. (People v. Ott, supra, at p. 131, disapproved on other grounds in People v. Beeman, supra, 35 Cal.3d at pp. 556‑558.)

The Minors argument similarly misconstrues the corpus delicti rule. Under People v. Gutierrez, the People were not required to present evidence of the Minors knowledge and intent to aid and abet the burglary in order to prove corpus delicti. Rather, evidence the burglary occurred was sufficient.

The juvenile court properly considered the Minors statements to Flaws. Those statements, combined with the other evidence presented during the Peoples case‑in‑chief, were sufficient to sustain the burglary allegation. Thus, the juvenile court did not err by denying the Minors motion to dismiss under Welfare and Institutions Code section 701.1

II. Probation Terms and Conditions Modified as Requested

The Minor also contends certain terms and conditions of his probation are erroneous because they do not include a knowing violation requirement. The Attorney General agrees with the Minors proposed modifications. We too agree and modify the contested terms and conditions of probation to read as set forth in the disposition.

Disposition

The true finding on the allegations of first degree residential burglary of the petition is affirmed. Terms and conditions numbered 9, 11, and 14, and added condition 2 of the Minors terms and conditions of probation are ordered modified to read as follows:

9. Do not knowinglyhave any dangerous or deadly weapon in your possession, or knowingly be in the presence of any illegally armed person.

11. Do not knowinglyassociate with anyone named by the Court, your parent/guardian, or probation officer, or anyone who you know is on probation or parole, or a criminal street or tagging crew, or using/selling/possessing, or under the influence of alcohol or controlled substances.

14. Do not knowinglycontact or cause to be contacted the victims/ witnesses of any offense alleged against you.

Added Condition 2. Minor not to knowinglyinitiate contact or cause to be contacted by any means with Kobe Pham, the victims or witnesses of any offense alleged against you.

All other terms and conditions of probation shall remain the same. As modified, the dispositional order is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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[1] Welfare and Institutions Code section 701.1 states: At the hearing, the court, on motion of the minor or on its own motion, shall order that the petition be dismissed and that the minor be discharged from any detention or restriction therefore ordered, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602. If such a motion at the close of evidence offered by the petitioner is not granted, the minor may offer evidence without first having reserved that right.