In re Edgar G.

Filed 3/26/08 In re Edgar G. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

A juvenile wardship petition was filed on January 31, 2006, alleging that appellant, Edgar G., was a person described by the provisions of Welfare and Institutions Code section 602, having allegedly committed the offense of first degree burglary. (Pen. Code,  459.)^[1] The juvenile court found true the allegation and sustained the petition. Appellant moved for a new trial, and his motion was denied.

Appellant was declared a ward of the court, placed on probation, and returned to the custody of his parents. The juvenile court declared the offense to be a felony. Appellant was ordered to pay a $200 state restitution fine and victim restitution in an amount to be determined. Appellant argues (1) that there was insufficient evidence to support the juvenile court's finding that he committed a burglary, and (2) that the court failed to declare whether the offense was burglary of the first or second degree. We affirm.

FACTS

Eric Campbell was the sole occupant and owner of a condominium located at 1010 Briana Circle in Oxnard, which he had originally purchased with a friend, Aimee, and her boyfriend. Aimee's minor brother, E.S., often visited her. Aimee and her boyfriend later moved out and Campbell had the locks changed. He had given each of them a garage door opener, but did not ask for them back. Aimee later sued Campbell over an issue relating to ownership of the condominium.

On January 27, 2006, at approximately 4:30 in the afternoon, Campbell was upstairs in his home when he heard the garage door open and close. He walked downstairs and saw E.S. and another minor, appellant, in his den. Both boys had two of Campbell's kitchen knives in their hands and they were walking towards Campbell's leather couch getting ready to "stab it up." Campbell shouted and ran towards them. They turned to face Campbell and he backed away. The boys ran through the garage, into the backyard and E.S. jumped over a fence. Campbell grabbed appellant and fell backwards. Appellant stood up and fled over the fence. During the chase, appellant and E.S. dropped three kitchen knives in the yard and a fourth in the den.

Campbell called the police and they drove him to another location where seven or eight boys were sitting on a curb. Campbell recognized appellant and E.S. Two neighbors later testified that, on the day of the offense, they saw two boys walk towards Campbell's home, open his garage door and enter the condominium. Appellant and E.S. were tried together, but E.S. is not a party to the appeal.

DISCUSSION

Standard of Review

When faced with a challenge to the sufficiency of the evidence, we apply the same standard in both juvenile and adult criminal appeals. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) We will not disturb the judgment unless it appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.) The supporting evidence must be such that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Holt (1997) 15 Cal.4th 619, 667.)

Felonious Intent

In sustaining the petition, the juvenile court found that the charge of burglary had been sustained beyond a reasonable doubt. At both the jurisdictional hearing and at the dispositional hearing, the court stated that it was relying on alternative theories: first, that appellant had entered to commit theft and, second that he had entered for the purpose of committing felony vandalism. We conclude that the evidence is sufficient on the latter theory.

Vandalism is defined as the malicious damage or destruction of the real or personal property of another. ( 594, subd. (a).) If the amount of the damage exceeds $400, the crime is a felony; it is it less than $400, the offense is a misdemeanor. (Id., subd. (b)(1) & (2)(A).) The term larceny is synonymous with theft. ( 490a; People v. Dingle (1985) 174 Cal.App.3d 21, 29.) An individual is guilty of theft when he feloniously steals, takes, or carries away another's personal property. ( 484, subd. (a).)

Appellant claims that the petition cannot be sustained because there is insufficient evidence to show that he had the specific intent to vandalize property exceeding $400 in value, or the intent to commit larceny at the time he entered Campbell's home.

"Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." ( 459, italics added.) "Burglary requires that the entry be accompanied by an intent to commit some felony." (People v. Fond (1999) 71 Cal.App.4th 127, 132 [intent to commit rape].) "[T]he specific intent necessary to commit burglary is simply the felonious design with which the accused enters the building . . . ." (People v. Smith (1966) 63 Cal.2d 779, 793 [entering stores with intent to cash forged checks].)

"One may be liable for burglary upon entry with the requisite intent to commit a felony or a theft . . . regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft is actually committed." (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.)

Circumstantial evidence of the defendant's intent is as sufficient as direct evidence to support a conviction. (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The felonious intent required to commit a burglary may be inferred by all of the facts and circumstances disclosed by the evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1157; People v. Park (2003) 112 Cal.App.4th 61, 68.)

The People contend that appellant was found inside the home, in possession of stolen property, which he took from the home, and dropped on the lawn only to facilitate his escape. They claim that this constituted circumstantial evidence of appellant's intent to commit theft. We disagree. There was no evidence that appellant intended to steal Campbell's knives (or anything else), or that such an intention was formed before he entered the home.

However, we conclude that appellant possessed the requisite felonious intent because there was evidence that he entered the home intending to do over $400 worth of damage. According to the probation report, Campbell reported monetary loss which included $350 to replace his garage door; $75 to replace his garage door opener; and $150 to reprogram it. From the dollar amount of damage caused by appellant's entry and his act of approaching the couch with kitchen knives, the juvenile court could reasonably have inferred that appellant entered the home with the intent of doing substantial damage, in excess of $400. The juvenile court's finding that appellant had committed felony vandalism was supported by substantial evidence.

Since we conclude that there is sufficient evidence to prove the burglary based on the theory that the intended crime was felony vandalism, we need not further discuss the juvenile court's alternative theory that the entry was for the purpose of theft.

Evidence of Appellant's Entry into Condominium

Appellant contends that there was insufficient evidence to show he was the individual who entered Campbell's home. This claim is without merit. Campbell confronted appellant, saw him face to face, and grabbed him when he attempted to flee. A short time later Campbell was able to unequivocally identify appellant from a group of seven or eight boys. Moreover, two neighbors observed the boys entering the house. Substantial evidence supports the juvenile court's finding that appellant entered Campbell's home.

Degree of Burglary

Burglary of an inhabited dwelling house is burglary of the first degree, a felony. ( 460, subd. (a).) All other kinds of burglary are of the second degree. ( Id., subd. (b), 461.) Second degree burglary is a "wobbler," punishable by imprisonment in the state prison or by fine or imprisonment in the county jail. (People v. Rose (1997) 56 Cal.App.4th 990, 993.)

Appellant argues that the juvenile court failed to specify whether he had committed first or second degree burglary. He contends that, if the court found that he had committed second degree burglary, we must remand the matter so the juvenile court can declare the offense to be a felony or misdemeanor, pursuant to Welfare and Institutions Code section 702 and In re Manzy W. (1997) 14 Cal.4th 1199, 1204. Alternatively, appellant contends that the offense must deemed to be second degree burglary.

In the original petition, appellant was charged with "First Degree Residential Burglary, in violation of Penal Code section 459." At the conclusion of the contested hearing, the juvenile court stated that ". . . proof has been shown beyond a reasonable doubt that [appellant] did commit the offense of violation of Penal Code section 459, and that count is sustained." The minute order stated that the "Court finds [the] allegations contained in count[] 1 are true and orders the petition sustained as to said count[] after [the] contested hearing." The matter was continued for disposition.

Appellant moved for a new trial "on the ground that the verdict sustaining the charge of First Degree [R]esidential Burglary was contrary to the evidence." The court considered the motion at the dispositional hearing. After hearing argument, it stated, "Well, the Court did hear this matter. The Court did find that the minor did enter that dwelling, the residential dwelling of Mr. Campbell." The motion was denied.

The court addressed appellant, saying ". . . the Court . . . has found that you did participate with your co-offender, [and] entered a home of another individual . . . ." The court declared appellant a ward of the court, placed him on probation, and stated "[t]he Court does find count 1 to be a felony."

In summary, appellant was charged in the petition with first degree residential burglary (count 1), which was specified as a violation of section 459. At the contested hearing, the court found that appellant had violated section 459. The minute order indicated that the court found true the allegations in count 1. Appellant moved for a new trial claiming there was insufficient evidence to support the "verdict" of first degree residential burglary. At disposition, the court reiterated that appellant had entered the home of another and declared count 1 a felony.

It is unfortunate that the juvenile court did not specify the degree of burglary during any of its oral pronouncements. However, based on the court's statements that appellant entered Campbell's home, violated section 459, and committed a felony, it is clear that the court found appellant had committed burglary of the first degree.

The judgment (order of the juvenile court) is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Manuel J. Covarrubias, Judge

Superior Court County of Ventura

______________________________

Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]All further statutory references are to the Penal Code.