In re D.B.

 

 

 

 

 

 

 

 

 

Filed 11/27/13  In re D.B. CA4/2

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 TWO

 

 

 
>

In re D.B., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,               Plaintiff and Respondent,   v.   D.B.,               Defendant and Appellant.	E057615               (Super.Ct.No. INJ1100247)               OPINION

 

            APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Charles Everett
Stafford, Jr., Judge. 
Affirmed.

            Stephanie Adraktas, under
appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Charles C. Ragland and Jennifer B. Truong, Deputy Attorneys
General, for Plaintiff and Respondent.

            The juvenile court placed the minor
on probation for six months and ordered him to pay the victim $530 in
restitution after it found true allegations that he drove the victim’s two vehicles
and stole his cell phone.  The minor
argues the court should reverse two of the three true findings and the
restitution order.  As discussed below,
we affirm the judgment.

Facts and Procedure

            In December of 2010, 65-year-old Thomas
Simrock hired the 14-year-old minor to walk his dogs for about one week while
Simrock was in the hospital having cancer surgery and for about two weeks while
Simrock recovered at home.  Simrock gave
the minor keys to Simrock’s home and instructed the minor to come inside each
day, get the dogs and walk them.  Simrock
did not give the minor permission to do anything else in his house.  The keys to Simrock’s two vehicles, a Jaguar
convertible and a GMC Envoy sport utility vehicle, were hung on hooks inside
the house.  After returning home from the
hospital, Simrock noticed some cash was missing from his house and on several
occasions noticed his two vehicles were low on gas when they should not have
been.

            One day while he was home
convalescing from surgery, Simrock got out of bed and noticed from inside the
house that his Jaguar was missing.  Simrock
was getting ready to drive the Envoy around to look for the minor when the
minor drove up in the Jaguar.  The minor
told Simrock that one of Simrock’s dogs was running down the street and so he
had taken the Jaguar to go look for the dog. 
The dog was in the Jaguar.  The
minor told Simrock that he had also driven the Envoy.  The minor told Simrock that he needed to take
his sister to the hospital one day, and so he climbed over a wall and went in
through Simrock’s back door, which the minor knew to be unlocked, or a key was
hidden, and got the keys to the Envoy from the house.  This happened after Simrock had come home
from the hospital.

Simrock told the minor he no longer wanted the minor to work for
him.  The next day Simrock noticed his
cellular telephone was missing.  Simrock
at some point checked his telephone records and learned that, after the phone
had been taken, it had been used to call the minor’s father and other unknown
numbers.  The minor was the only person
who was in Simrock’s house in the days leading up to the cell phone going
missing.  On the same day that he found
his phone was missing, Simrock checked the car keys that he kept hanging up in
the house.  He noticed that the remote
key fob for the Jaguar was missing, the key for the Envoy had been replaced
with a Cadillac key, and the remote key fob for the Envoy had been replaced
with a blank.  No one other then Simrock
and the minor had been in Simrock’s home in the preceding days.

            The minor testified that he only
used the cell phone with Simrock’s permission, but he did not steal it.  The minor testified that he never told Simrock
that he had driven the Envoy in an emergency, and that the incident Simrock
described, in which the minor drove the Jaguar with Simrock’s dog in it, never
happened.  The minor testified that
another neighbor had borrowed the Envoy with Simrock’s permission, and that the
minor had driven the car in a grocery store parking lot while the neighbor
taught him to drive.  The minor testified
that Simrock seemed frail and confused, and that a nurse visited Simrock every
day after he returned from the hospital.

            Palm Springs Police Officer Aguilera
testified that on December 20, 2010, he responded to a call from the minor.  The minor told him that Simrock made him
uncomfortable because, on several occasions when the minor went to Simrock’s
home to walk his dogs, Simrock was walking around in only underwear.  The minor stated that he quit working for
Simrock because of this, and that Simrock then accused him of stealing a cell
phone.  The officer spoke with Simrock
about the minor’s accusations.  Simrock
told the officer that he believed the minor had taken several items from him.  Simrock stated that he had let the minor make
a call from his cell phone.  After the
officer spoke with Simrock, he re-interviewed the minor.  The minor admitted to having made up the story
to avoid getting into trouble, but was not specific about what parts he had
made up.  The minor denied taking the
cell phone, but said he had used it several times with Simrock’s
permission.  The minor eventually
admitted that he had gone joyriding in Simrock’s vehicles on several occasions
without Simrock’s permission.

            The parties stipulated that if the
minor’s father was called to testify, he would testify that he had never spoken
with Simrock about whether the minor had placed a call to his father on
Simrock’s cell phone.

            On April 15, 2011, the People filed
a petition under Welfare and Institutions Code section 602, alleging the minor
committed two counts of misdemeanor unlawfully driving or taking a vehicle (Veh.
Code, § 10851) and one count of misdemeanor theft (Pen. Code, § 484, subd.
(a)).

            On January 9, 2012, the juvenile
court placed the minor on informal probation under Welfare and Institutions
Code section 654.2, with anticipated dismissal on June 22.  The minor’s father stated he was unhappy that
the current prosecutor wanted the minor to agree to informal probation in
exchange for not re-filing the allegations as felonies.  The judge explained that the case “should
have been filed as a felony to begin with” and offered to preside over a trial
on the felony allegations instead of approving the informal probation.  After the minor’s counsel spoke with the
minor’s father off the record, the court approved the informal probation and set
the restitution hearing for March 13, 2012.

            The contested restitution hearing
was held on March 13, 2012.  Mr. Simrock
testified about money he spent on a new cell phone, a kill switch for the Envoy,
and having his house re-keyed.  After
hearing argument from both sides, the trial court set restitution at $530.

            At the review hearing held on June
22, 2012, the juvenile court revoked the minor’s informal probation because the
minor’s father refused to pay the $530 in restitution.  Neither had the minor completed his 40 hours
of community service.  The court set a
contested jurisdiction hearing for September 6, 2012.

            On June 27, 2012, the People filed
an amended petition charging the
allegations as felonies.

            The contested jurisdiction hearing
was held on October 11, 2012, with the testimony described above by Mr.
Simrock, the minor, and Officer Aguilara.  At the conclusion of the hearing, juvenile
court found the felony allegations true and sustained the petition.

            The disposition hearing was held on
November 27, 2012.  On motion of defense
counsel, the juvenile court declined to declare the minor a ward of the court,
reduced the charges to misdemeanors and placed the minor on probation for six
months under Welfare and Institutions Code section 725, subdivision (a).  The terms of probation included payment of
$530 in restitution, 40 hours of community service, and not driving a car
without a license, insurance, and registration .  This appeal followed.

Discussion

 

1.  The True Finding That the Minor
Drove the GMC Envoy is Supported by Evidence Independent of His Out-Of-Court
Statements

Defendant argues the prosecution failed to establish the corpus
delicti, with evidence independent of his admissions, for the offense of
unlawfully driving Simrock’s GMC Envoy. 
We disagree and uphold the true finding.

>Corpus Delicti and the Standard of Review

“The purpose of the corpus
delicti rule is to assure that ‘the accused is not admitting to a crime that
never occurred.’”  (>People v. Jones (1998) 17 Cal.4th 279,
301, quoting People v. Jennings
(1991) 53 Cal.3d 334, 368.)  The corpus delicti or body of an alleged
crime consists of (1) the fact of injury, loss or harm, and (2) the existence
of a criminal agency as its cause.  (>People v. Valencia (2008) 43 Cal.4th
268, 296.)  It has long been the rule
that the corpus delicti must be established independently of any extrajudicial
statements or admissions of the defendant. 
(People v. Crew (2003) 31
Cal.4th 822, 836-837; People v. Mehaffey (1948)
32 Cal.2d 535, 544-545.)  However,
“the modicum of necessary independent
evidence . . . is not great.  The independent evidence may be
circumstantial, and need only be ‘a slight or prima facie showing’ permitting
an inference of injury, loss, or harm from a criminal agency, after which the
defendant’s statements may be considered to strengthen the case on all issues.”  (People
v. Alvarez (2002) 27 Cal.4th 1161, 1181.)  The corpus delicti rule is satisfied “‘“by the
introduction of evidence which creates a reasonable inference that [the harm] could
have been caused by a criminal agency . . . even in the
presence of an equally plausible noncriminal explanation of the event.”  [Citation.]’” 
(People v. Ruiz (1988) 44
Cal.3d 589, 611, citing People v. Towler (1982)
31 Cal.3d 105, 117.)

We review with deference a trial court’s determination that the corpus
delicti for the crimes alleged in the charging document was established.  We draw “‘every legitimate inference in favor
of the [petition], and cannot substitute [our] judgment as to the credibility
or weight of the evidence for that of the [trier of fact].’”  (People
v. Jones, supra, 17 Cal.4th at p. 301.)

Here, the minor admitted to both Simrock and Officer Aguilera that he
drove the Envoy without permission.  The
additional evidence used to establish that someone actually committed the crime
of unlawfully taking or driving a vehicle is the following.  The evidence shows someone drove the Envoy
without Simrock’s consent because he testified that gasoline was missing from
the Envoy, that he never gave anyone permission to drive the Envoy, and that he
discovered the key and the remote key fob for the Envoy were missing shortly
after Simrock fired the minor.

Further, the evidence shows that the minor had access to the car keys
Simrock kept in the house, both during Simrock’s absence while at the hospital
and while he was recovering at home.  Finally,
Simrock saw the minor driving his Jaguar without permission, which is
circumstantial evidence from which it can be inferred that the minor also drove
the Envoy, in that his opportunity to drive both vehicles was the same.  While it could possibly be inferred that the
missing gasoline was caused by something other than the cars being driven
without permission, this was certainly a permissible inference from the
evidence, and so we conclude that sufficient evidence supports the true finding
that the minor unlawfully took or drove Simrock’s GMC Envoy.

 

2.  >Sufficient Evidence Supports the True
Finding That the Minor Stole the Cell Phone.

The minor argues the evidence presented at the contested
jurisdictional hearing was insufficient to support the juvenile court’s true
finding on the theft charge.

In
deciding the sufficiency of the evidence, a reviewing court resolves neither
credibility issues nor evidentiary conflicts. 
(People v. Zamudio (2008) 43
Cal.4th 327, 357.)  Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact.  (People v. Maury (2003) 30 Cal.4th 342, 403.)  An appeal challenging the sufficiency of the
evidence to support a juvenile court judgment is governed by the same standards
of review applicable to a similar claim by a criminal defendant.  (In re
Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)

Moreover, unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a
conviction.  (People v. Young (2005) 34 Cal.4th 1149, 1181.) 

To establish theft, the People needed to show that the minor took
possession of Simrock’s cell phone without his permission and with the intent
to permanently deprive him of the phone.  (People
v. Nazary (2010) 191 Cal.App.4th 727, 741-742.)  A defendant may be convicted of theft based
solely on circumstantial evidence.  (>People v. Hallman (1973) 35 Cal.App.3d
638, 641.)

Here, the evidence supporting the true finding was the following.  First, Simrock testified that he noticed the
phone was missing the day after he fired the minor.  Second, Simrock testified that he had not
seen his phone for two or three days before he discovered it was missing.  Third, Simrock testified that he checked his
telephone records and found that the phone had been used to call the minor’s
father after it had been stolen.  Fourth,
Simrock testified that he did not give the minor permission to take his cell
phone.  Finally, Simrock testified that
the minor had access to the inside of his home, and that the minor was the only
person who came into his home during the period immediately before the phone
went missing.  While this testimony was
contradicted in part by the minor’s testimony that he did not steal the phone
and that other people were in the house at the time it went missing and by the
stipulated testimony of the minor’s father that he never spoke with Simrock about
his phone number having been called on Simrock’s phone after it went missing,
the testimony of a single person is enough to establish the elements of theft,
and that testimony is present here. 
Therefore, the true finding on this count is supported by sufficient
evidence.

3.  Sufficient Evidence and The Applicable
Statutes Support the Restitution Order

The minor argues the $530 restitution order must be reversed because:
a) Simrock did not know the exact amounts he paid and therefore provided
insufficient evidence to support the order; and 2) the amounts for re-keying
the house locks and installing ignition kill switches on the vehicles are not
compensable because the crimes were non-violent misdemeanors and the losses
were not incurred as a result of the minor’s crimes.

Welfare and Institutions Code
section 730.6 provides that “a victim of conduct for which a minor is found to
be a person described in Section 602 who incurs any economic loss as a result
of the minor’s conduct shall receive restitution directly from that minor.”  (Welf. & Inst. Code, § 730.6, subd.
(a)(1).)  “[W]e observe that [Welfare and
Institutions Code] section 730.6 parallels Penal Code section 1202.4, which
governs adult restitution.”  (>In re Johnny M. (2002) 100 Cal.App.4th
1128, 1132.)  â€œA restitution order is
reviewed for abuse of discretion and will not be reversed unless it is
arbitrary or capricious.  [Citation.]  No abuse of discretion will be found where
there is a rational and factual basis for the amount of restitution ordered.”  (People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 [Fourth Dist., Div. Two] (>Gemelli).)  “At the core of the victim restitution
statutory scheme is the mandate that a victim who suffers economic loss is
entitled to restitution and that the restitution is to be ‘based on the amount of
loss claimed by the victim.’  Thus, a
victim seeking restitution (or someone on his or her behalf) initiates the
process by identifying the type of loss ([Pen. Code,] § 1202.4,
subd. (f)(3)) he or she has sustained and its monetary value.”  (People
v. Fulton (2003) 109 Cal.App.4th 876, 885-886.)

When a trial court’s
determination is attacked on the ground that there is no substantial evidence
to sustain it, the “‘“power of the appellate court begins and ends with the determination
as to whether there is any substantial evidence, contradicted or
uncontradicted,” to support the trial court’s findings.’  [Citations.]” 
(People v. Baker (2005) 126
Cal.App.4th 463, 468-469; see also, In re
Rocco M. (1991) 1 Cal.App.4th
814, 820.)

Here, Simrock testified that
he spent about $180 on gas to refill the tanks on his vehicles three times, $60
to purchase a less expensive phone than the 3GiPhone he had been given by his
son, about $180 to install a “kill switch” in the Envoy and $120 to rekey his
house.  This totaled $540.  The juvenile court ordered the minor to pay
$530 in restitution.  This testimony
clearly made a prima facie showing that Simrock expended the amounts to which
he testified.  The minor did not offer
any evidence to dispute these amounts. 
The minor argues that this case is similar to People v. Harvest (2000) 84 Cal.App.4th 641, in which the appellate
court reversed a victim restitution order of $5500 for funeral expenses because
the claimant had failed to provide adequate documentation or testimony in
support of the claim.  That case is not
on point here, because although Simrock did not provide documentation, he did
offer extensive testimony to support each portion of his claim and how it was
related to the crimes committed against him by the minor.  Although, as the minor argues, Simrock did
not always provide an exact amount, but rather estimated some of his costs, it
seems clear from our reading of the testimony that Simrock provided a
reasonable estimate based on his best recollection.  In addition, it is clear from the testimony
that Simrock minimized the amounts he spent because he did not know he would be
reimbursed and could not afford to replace the stolen items with equivalent
items.  For example, at the time of the
crime, Simrock told police the cell phone was worth “over $200” but replaced
with a “cheap cell phone” costing $60 because the iPhone was costly to replace
and he needed to have a cell phone right away.  Simrock also told police the price to replace
the remote key fobs for the Envoy and for the Jaguar would be $500 each.  However, he again opted to go with a less
expensive option, in that he did not have the Jaguar re-keyed because the key
itself was not missing, and only installed a kill switch in the Envoy instead
of having it re-keyed because re-keying would have been “very expensive.”  Neither did Simrock replace either of the
stolen remote key fobs.

Based on Simrock’s testimony,
which was both uncontradicted and sufficiently specific, we conclude the trial
court did not abuse its discretion in awarding the $530 in victim restitution.

Finally, we address the
minor’s assertions that the restitution statutes do not support the
reimbursement of Simrock’s costs for rekeying his home and installing a kill
switch in the Envoy.  As stated above,
Welfare and Institutions Code, section 730.6, authorizes restitution to anyone
“who incurs any economic loss as a result of the minor’s conduct . . . .”  (Welf. & Inst. Code, § 730.6, subd.
(a)(1).)  The minor argues that security
measures are not reimbursable because not specifically enumerated in the
restitution statutes.  We find this
argument to be unavailing because the statutes in no way limit the types of
expenses eligible for restitution.  While
subdivision (h) of section 730.6 does list a number of expenses, such as lost
wages and medical expenses, that can be included in a restitution order, the
statute provides that restitution can “include” these types of expenses, not
that it is limited to those enumerated.

Similarly, the minor argues
that the language of the parallel Penal Code, section 1202.4, subdivision
(f)(3)(J), limits the reimbursement of a victim’s expenses for security
measures to crimes involving a violent felony. 
And similarly, this provision specifies a number of expenses eligible
for restitution “including, but not
limited to, all of the following  [¶]
 . . . .  [¶]  (J) Expenses to install or increase
residential security incurred related to a violent felony . . . .”  This statute by its very terms does not limit
reimbursement for security measures to victims of violent felonies, but only
lists such expenses as among those eligible for reimbursement.

For these reasons, the minor
has not carried his burden to establish that the juvenile court’s award of
victim restitution was an abuse of discretion because not supported by the
evidence or contrary to the applicable statutes.




Disposition

            The
judgment is affirmed.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ                             

                                                P.
J.

 

 

We concur:

 

RICHLI                                  

                                             J.

 

CODRINGTON                    

                                             J.