In re E.B.

























Filed 12/5/12 In re E.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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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 E.B., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. E.B., Defendant and Appellant.	E055081 (Super.Ct.No. J236478) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
William Jefferson Powell IV, Judge.
Affirmed.

Renée
Paradis, 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, Michael T. Murphy, and
James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

On
October 14, 2011, a first amended petition charged defendant and minor E.B.
(minor) with misdemeanor battery on a school employee under Penal Codehref="#_ftn1" name="_ftnref1" title="">^[1] section 243.6 (count 1); and residential
burglary under section 459 (count 2). On
November 7, 2011, after a jurisdictional hearing, the juvenile court found the
allegations in counts 1 and 2 to be true.
At the disposition hearing on November 22, 2011, the juvenile court declared minor a ward of
the court and placed him on probation.
On November 23, 2011, minor filed a notice of appeal.

On
appeal, minor contends that there is insufficient evidence that minor knew of
the wrongfulness of his conduct as to count 1 and that the juvenile court erred
in denying his motion to dismiss count 2.
For the reasons set forth below, we shall affirm the judgment.

FACTUAL
BACKGROUND

I. The Prosecution’s Case

A. Battery>
on School Employee

On
November 18, 2010, around 1:25 p.m.,
James Espinoza, a vice principal of Del Vallejo Middle School, went to the
school’s detention room with Officer McCrystal, to assist the discipline clerk
because some students were misbehaving.
One of these students was minor; he was alleged to have thrown milk at
another student. Minor was sitting at a
desk waiting to be seen. The chair and
desk were attached, and a person had to slide into the desk chair from the
side.

Espinoza,
standing within a couple of feet of minor, spoke to minor about his
behavior. Espinoza found out that minor
played football, and football was important to him. Espinoza and minor were talking in an “even”
tone of voice. Espinoza asked minor if
Espinoza needed to talk to minor’s football coach. As soon as Espinoza mentioned the coach,
minor jumped up or stood up and balled his fists. Espinoza backed up, and minor took one or two
steps towards Espinoza, and swung his closed right fist at Espinoza, hitting
him on the top of his left hand.
Espinoza’s left hand was by his sternum.
Minor came toward Espinoza with the intention of hitting him. Espinoza had not raised his hands to defend
himself; he was assessing the situation when he was hit. After striking Espinoza, minor continued to
swing violently. Espinoza and the
officer grabbed minor, and the officer handcuffed minor.

Previous
to this incident, the discipline clerk had been threatened by minor when he
“balled” up his fists. Minor was
suspended over this incident.

B.> Residential
Burglary

On
October 16, 2011, Natasha Bolton lived in the City of Highland. She
left around 8:40 a.m. to
take her son to school, and returned around 9:10 a.m. When
she left her home, no one else was inside the home and she locked the
doors. When she returned, she noticed
that her rear sliding glass door was open; it was not open when she left. In the living room, two video game consoles,
a digital camera, an MP3 player, a cell phone, and a plastic drum set in a box
were missing. Bolton’s gold bracelet and earrings were also
missing from her jewelry box located upstairs.

Around
9:17
a.m., San Bernardino
County Deputy Sheriff Jason Fortier was dispatched to Bolton’s residence.
Deputy Fortier also spoke with Trivia Wright, a neighbor and cousin of Bolton’s.
Wright said that she saw Earl B. running south from the back area of the
apartment complex where Bolton’s apartment was located; he was carrying a
chocolate cake and a white box. Earl
then turned west by the pool area, and Wright lost sight of him.

Deputy
Fortier went to Serrano
Middle School about an hour after contacting Bolton, and asked for Earl B., a student at the
school. Minor was about three feet from
the deputy when the deputy made the request; minor immediately looked at the
deputy with a shocked, surprised look.
Deputy Fortier talked to minor and learned that minor lived one street
west of the street where the burglary occurred.
Minor said that Earl B. was his cousin.
When asked where minor was at the time of the burglary, minor said he
was on probation, does not “mess” around, and showed the deputy a GPS tracking
device on his belt.

Later
that day, Deputy Fortier called minor’s probation officer and was told that
minor’s tracking device indicated that minor was around the area of the
victim’s residence at the time of the burglary.
San Bernardino County Probation Officer Crystal Harris testified that
minor was part of the county’s house arrest program as of October
6, 2011, and he had
a monitor that tracked his location.
Minor started school on October 6, 2011, at 9:40 a.m., and the tracking device showed that minor
was out of his home around 7:50 a.m. and traveled all over the place. The tracking device showed minor in the area
of the burglarized apartment at approximately 7:50 a.m. and 8:24 a.m. About
9:20
a.m., he was at the
bus stop.

Minor
called Probation Officer Harris later and stated that he and a friend, Earl B.,
went inside a lady’s house, without permission.
Minor, however, stated that he did not take anything.

After
Deputy Fortier spoke to Officer Harris, he interviewed minor at the police
station. Minor told the deputy that he
was at the bus stop at the time of the burglary. The deputy responded that he knew that minor
was lying because of the GPS. Minor then
changed his story and said that Earl told minor to come with him because he
wanted to show minor something; it turned out to be Bolton’s open sliding door. Minor entered the residence willingly,
knowing he was not supposed to be there, and knew that the purpose of entering
was to take things because Earl wanted something from the residence. Minor told the deputy that he attempted to
stop Earl. Minor stated that he walked
out of the residence first, then Earl followed with items in his hands. Then Earl ran off in a different
direction. Later, they both ended up at
the bus stop, and they both got on the bus together.

When
the deputy asked minor if he knew where any of the stolen items were located,
minor responded no. When the deputy said
that he was going to arrest minor, minor said that he would tell the deputy
where one of the video game consoles was.
Minor said that it was just inside a fence of his neighbor’s adjoining
yard. Deputy Fortier recovered the
console in a white plastic bag, tucked in a broken fence, concealed, at minor’s
home. Bolton identified the video game
console as belonging to her.

II. >Minor’s Case

Minor
testified solely to the charge of battery.
A teacher saw minor throw an apple across the lunch room and took minor
to the office. Espinoza came to the
office and talked to minor, saying that he would talk to minor’s football
coach. Minor got up from sitting in his
seat, and Espinoza grabbed minor’s right wrist with his left hand. Minor moved his arm down from palm down to
palm up to try to get Espinoza to let go of him. Minor did not hit Espinoza, did not swing at
him, and did not hit or touch him.

Minor
told a police officer, after the incident, that he hit Espinoza because he was
angry.

ANALYSIS

I. Sufficient Evidence Supports an Implied
Finding That Minor Knew His Action Was Wrong

Minor
contends that there was insufficient
evidence that he knew committing a battery against a school employee was
wrong. We disagree.

At
the time of the incident, minor was 13 years six months old. Section 26 presumes a minor under age 14 is
incapable of committing a crime unless there is clear proof the minor
understood the wrongfulness of the charged act.
“Clear proof” means clear and convincing evidence. (In re
Manuel L. (1994) 7 Cal.4th 229, 239 & fn. 5.) Here the court did not make an express
finding on whether minor knew his conduct was wrongful. A finding, however, may be implied and is
reviewed according to the standard of substantial evidence. (In re
Paul C. (1990) 221 Cal.App.3d 43, 52; People
v. Lewis (2001) 26 Cal.4th 334, 378-379.)

“In
determining whether a minor would be capable of committing a crime under
section 26, the juvenile court must consider the child’s age, experience, and
understanding. [Citation.] A minor’s knowledge of his act’s wrongfulness
may be inferred from the circumstances, such as the method of its commission or
its concealment.” (In re Paul C., supra, 221
Cal.App.3d at p. 52, citing In re Gladys
R. (1970) 1 Cal.3d 855, 864; and In
re Tony C. (1978) 21 Cal.3d 888, 900.)


Here,
minor was shy of age 14 by only six months.
The closer the child is to age 14, the more likely he appreciates the
wrongfulness of his conduct. (>In re Paul C., supra, 221 Cal.App.3d at p. 53.)
Previous misconduct can also support an inference that a minor
appreciated his present conduct was wrong.
(In re Carl L. (1978) 82
Cal.App.3d 423, 424-425.) Here, minor
was already on probation and being monitored by a GPS attached to his
belt. Moreover, minor was well aware of
the wrongfulness of similar conduct. He
had previously threatened a disciplinary clerk of the school, with fists
balled, which resulted in minor being suspended from school. In fact, to say that a middle school boy, who
is almost 14 years old, would not know that hitting his vice principal is
wrong, borders on frivolous. Substantial
evidence supports the juvenile court’s implied finding that minor knew his
conduct was wrongful.

Nevertheless,
minor argues that “[i]t is inappropriate to imply a finding where there is no
indication the court was even aware of the issue in question.” In support, minor cites to >People v. Sotelo (1996) 47 Cal.App.4th
264, 272 (Sotelo). Sotelo,> however, does not apply.

In
Sotelo, a trial judge denied the
defendant’s first motion to suppress under section 1538.5. (Sotelo,
supra, 47 Cal.App.4th at p.
266.) A second judge, however, granted a
second motion by the defendant to suppress.
(Ibid.) Thereafter, the trial court dismissed several
drug-related charges after the prosecution admitted it could not proceed to
trial after the second judge’s ruling on the suppression motion. The People appealed. (Ibid.)

In
ruling on the second motion to suppress,
the trial court concluded that the defendant had received ineffective
assistance of counsel from his first counsel because he failed to challenge the
validity of the search warrant. The
second judge then concluded “that the defendant was entitled to ‘raise the
additional issue or the 1538 again.’” (>Sotelo, supra, 47 Cal.App.4th at p. 268.)
The second judge then declared the search warrant valid. “However, he then ruled . . . that
the police had not complied with the knock-notice requirements of section
1531.” (Id. at pp. 268-269.)

On
appeal, the issue was whether a trial court could rule on the same issue
twice. The defendant argued that, in
ruling on his second suppression motion, the second judge “made ‘an implied
finding that incompetence of counsel colored all aspects of the [first]
suppression hearing[,]’” not just the validity of the search warrant. (Sotelo,
supra, 47 Cal.App.4th at p.
272.) The Court of Appeal did not
agree. It stated, “[t]here is simply
nothing in the record to support the existence of any such ‘implied
finding.’ To the contrary, defendant’s
second counsel made no argument at all, either in his several briefs to the
trial court on the second motion or at oral argument, that there was any such
broader manifestation of ineffective assistance of counsel.” The court noted that the argument in favor of
the suppression motion was limited to the validity of the search warrant. “Similarly, his assertion of ineffective assistance
of counsel, and his predecessor counsel’s exquisitely careful declaration in
support of that assertion, was also explicitly so limited.” (Sotelo,
at p. 272.) Therefore, no implied
finding as to ineffective assistance of counsel as to all aspects of the first
suppression motion could be found. (>Ibid.)

This
case is different. When a child under
the age of 14 years is charged with a crime, section 26 provides that the child
may not be found guilty of that offense unless the People present “clear proof
that at the time of committing the act charged against them, they knew its
wrongfulness.” This is an issue that is
present in all juvenile cases involving children under the age of 14. Based on the facts of the case presented, an
implied finding under section 26 can be made.


Under
the circumstances of this case, there was overwhelming evidence that minor was
aware of the wrongfulness of his conduct.


II. Sufficient Evidence Supports the Juvenile
Court’s Denial of Minor’s Motion to Dismiss the Burglary Count

Minor
contends that the juvenile court erred in denying his motion to dismiss count
2, under Welfare and Institutions Code section 701.1, because there was
insufficient evidence to prove every element of the crime of residential
burglary. We disagree.

Welfare
and Institutions Code section 701.1 provides that an accused minor may move to
dismiss at the close of the prosecution’s case.
This section parallels Penal Code section 1118. The rules and procedures applicable to Penal
Code section 1118 thus apply to Welfare and Institutions Code section
701.1. (In re Anthony J. (2004) 117 Cal.App.4th 718, 727.) The reviewing court determines whether there
was substantial evidence of each element of the charge in the People’s
case. (People v. Moody (1976) 59 Cal.App.3d 357, 363.)

Our
review of any claim of insufficiency of the evidence is limited. “‘“When the sufficiency of the evidence is
challenged on appeal, the court must review the whole record in the light most
favorable to the judgment to determine whether it contains substantial
evidence—i.e., evidence that is credible and of solid value—from which a
rational trier of fact could have found the defendant guilty beyond a
reasonable doubt.”’” (>People v. Hill (1998) 17 Cal.4th 800,
848-849.) We must presume in support of
the judgment the existence of every fact the trier of fact could have
reasonably deduced from the evidence. (>People v. Kraft (2000) 23 Cal.4th 978,
1053.) “‘The standard of proof in
juvenile proceedings involving criminal acts is the same as the standard in
adult criminal trials. [Citation.]’ [Citation.]”
(In re Babak S. (1993) 18
Cal.App.4th 1077, 1088.)

Further,
before we may set aside a judgment for insufficiency of evidence, it must
clearly appear that there is no hypothesis under which we could find sufficient
evidence. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.) “In deciding the sufficiency of the evidence,
a reviewing court resolves neither credibility
issues nor evidentiary conflicts.
[Citation.] Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.]” (People
v. Young (2005) 34 Cal.4th 1149, 1181.)
“‘Conflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of
the trial judge or jury to determine the credibility of a witness and the truth
or falsity of the facts upon which a determination depends.’ [Citation.]”
(People v. Guerra (2006) 37
Cal.4th 1067, 1141, disapproved of on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) “Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction.
[Citation.]” (>People v. Young, supra, at p. 1181.)

Given
this court’s limited role on appeal, minor bears an enormous burden in claiming
there was insufficient evidence to sustain his conviction for vandalism. “Although it is the duty of the [trier of
fact] to acquit a defendant if it finds that circumstantial evidence is
susceptible of two interpretations, one of which suggests guilt and the other
innocence [citations], it is the [trier of fact], not the appellate court which
must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does
not warrant a reversal of the judgment.”’”
(People v. Bean (1988) 46
Cal.3d 919, 932-933.)

In
this case, the court found true that minor committed residential burglary. To secure a conviction of residential
burglary, the prosecutor must prove beyond a reasonable doubt that the
perpetrator unlawfully entered the residence with the intent to commit a theft
or any felony. (In re Leanna W. (2004) 120 Cal.App.4th 735, 741.) The requisite intent of the perpetrator is
rarely shown by direct evidence; it is usually inferred from the facts and
circumstances. (Ibid.)

Minor
does not dispute that there was an unlawful entry. Minor, however, contends that the juvenile
court erred in denying his motion to dismiss count 2 because there was “simply >no evidence in the record that
. . . support[ed] the court’s conclusion that the minor ‘alone’ knew
where the [video game console] was to be found.” Minor is mistaken.

At
the hearing on the motion to dismiss, the court, in denying the motion, stated:

“It
does appear to me that the weight of the evidence and the reasonable inference
that can be made through the minor’s location, through his minimizing
statements, the fact that he alone knew where the [video game console] was
found, it was hidden away, all of those combined lead me to believe the People
have proven each element of the residential burglary beyond a reasonable
doubt. The motion to dismiss is denied.”

Here,
sufficient evidence supports the court’s finding about minor’s actions. The burglary occurred between approximately
8:40 a.m. and 9:10 a.m. Numerous items
were stolen from the living room area, including two video game consoles, a
camera, an MP3 player, a cell phone, and a drum set in a box. Jewelry was also stolen from a jewelry box
upstairs. Moreover, minor’s GPS monitor
had him in the location of the victim’s apartment for approximately 30 minutes,
although the tracking device records, as testified to by the probation officer,
seemed to be off by an hour. From these
facts and minor’s admission that he was inside the victim’s residence, it is
reasonable to infer that both minor and his cousin, Earl B., were in the
residence for some time, and each made multiple trips to carry the items out of
the residence.

During
minor’s interview with the police, he initially denied knowing anything about
the burglary. When Deputy Fortier stated
that he knew minor was lying because of the tracking device, minor admitted to
entering the victim’s residence. Minor,
however, stated that he only went in because his cousin wanted to show minor
something, and did not take anything.
Minor went on to state that he did not know where any of the stolen
items were located. When the deputy
indicated that minor would be arrested, minor described the location of one of
the video game consoles; it was buried by the fence in his adjoining neighbor’s
yard.

Evidence
of theft of property following entry may create a reasonable inference that the
intent to steal existed at the moment of entry.
(In re Matthew A. (2008) 165
Cal.App.4th 537, 541.) Here, the video
game console was discovered hidden near minor’s fence shortly after the
burglary and after minor had informed the detective where it could be found.

Based
on the above, overwhelming evidence supports the court’s true finding of
residential burglary. The court properly
denied minor’s motion to dismiss.

DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS



MCKINSTER

Acting P. J.





We concur:



RICHLI

J.

CODRINGTON

J.