In re Israel A.



















Filed 3/4/13 In
re Israel A. CA5









NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


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In re ISRAEL A., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL A., Defendant and Appellant.	F064724 (Super. Ct. No. JJD064652) >OPINION

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County. Juliet L. Boccone, Judge.

Arthur L.
Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton
Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant, Israel A., a minor, was initially adjudged a
ward of the juvenile court in 2010, following his admission that he committed href="http://www.mcmillanlaw.com/">battery (Pen. Code, § 242), and he was
readjudged a ward in 2011 following his admission of possession of live firearm
ammunition by a minor (Pen. Code, § 12101, subd. (b)(1)).

In 2012, in the instant case, the
juvenile court, at a jurisdiction hearing, found true allegations set forth in
a juvenile wardship petition (Welf.
& Inst. Code, § 602) that appellant committed attempted first degree
burglary (Pen. Code, §§ 664/459, 460, subd. (a); count 1), assault by means of
force likely to produce great bodily injury (Former Pen. Code, § 245, subd.
(a)(1);href="#_ftn2" name="_ftnref2" title="">^[1] count 2) and second degree robbery (Pen. Code,
§§ 211, 212.5, subd. (c); count 3). At
the subsequent disposition hearing, on February 14, 2012, the court readjudged
appellant a ward of the court and ordered that he serve 365 days in the Tulare
County Youth Facility, under the supervision of the probation officer.

On appeal, appellant contends (1)
the evidence was insufficient to support his adjudication on count 1, and (2)
the court failed to declare whether the count 2 offense was a felony or
misdemeanor, in violation of Welfare and Institutions Code section 702 (section
702). The People concede both
points. We reverse appellant’s
adjudication of attempted burglary and remand for a href="http://www.mcmillanlaw.com/">new disposition hearing.

FACTShref="#_ftn3" name="_ftnref3" title="">^[2]>

At approximately 12:50 p.m. on
September 29, 2011, Maria Cavazos was leaving her home when she saw three
Mexican-American male youths in the driveway of the house of her neighbor,
Larry Murillo, walking away from Murillo’s house. Cavazos got into her car and as she was
backing out she saw her neighbor, Emilio Sandoval. She approached him and told him what she had
seen.

Sandoval
testified to the following: He walked
over to Murillo’s house and saw that the frame of the door to the house was
“broken.” It “was not actually kicked
in”; rather, it was “popped open a little bit.”
Sandoval’s wife called the police.


Police,
shortly after getting a report of the incident, effected a stop of a yellow
Ford Mustang automobile. Shortly
thereafter, police transported Cavazos to the scene of the vehicle stop, where
she identified three persons, one of whom was appellant, as the three she had
seen walking away from Murillo’s house.

Police
found a shoe print on the door of Murillo’s house. The print matched a shoe worn by Miguel M.,
one of the other persons stopped with appellant.

DISCUSSION

>Sufficiency of the Evidence

As
indicated above, appellant contends and the People concede that the evidence
was insufficient to support appellant’s adjudication of attempted burglary.

Governing
Principles

In general, in determining whether the evidence is sufficient to
support a finding in a juvenile court proceeding, the reviewing court is bound
by the same principles as to sufficiency and the substantiality of the evidence
which govern the review of criminal convictions generally. (In re
Roderick P. (1972) 7 Cal.3d 801, 809.)
Those principles include the following:
“[T]he reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence--evidence that is reasonable, credible and of solid value--such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] The appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from
the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

“Substantial evidence includes circumstantial evidence and
any reasonable inferences drawn from that evidence.” (In re
Michael D. (2002) 100 Cal.App.4th 115, 126.) “‘[W]hile substantial evidence may consist of
inferences, such inferences must be “a product of logic and reason” and “must
rest on the evidence” [citation]; inferences that are the result of mere
speculation or conjecture cannot support a finding [citations.]’” (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394, italics omitted.)

A person commits first degree
burglary when he or she enters an inhabited dwelling with the specific intent
to commit grand or petit larceny or any felony inside it. (Pen. Code, §§ 459, 460, subd. (a).) An attempt to commit a crime occurs when the
perpetrator, with the specific intent to commit the crime, performs a direct
but ineffectual act toward its commission.
(Pen. Code, § 21a; People v.
Medina (2007) 41 Cal.4th 685, 694.)
Accordingly, “for the prosecution to prove that defendant committed an
attempt to burglarize as proscribed by Penal Code section 664, it was required
to establish that he had the specific intent to commit a burglary of the
[house] and that his acts toward that goal went beyond mere preparation.” (People
v. Staples (1970) 6 Cal.App.3d 61, 64.)

“[A] person aids and abets the
commission of a crime when he or she, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the
crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.)

Analysis

The evidence adduced in the instant
case shows the following: Appellant was
in the company of two other youths near Murillo’s house; the front door of the
house was damaged; and a shoe print found on the damaged door matched a shoe
worn by one of appellant’s companions.
From this evidence it is reasonably inferable that appellant was in the
company of another person at around the time that person attempted to kick
Murillo’s door in. However, there was no
evidence anyone actually entered the house, took anything from the house, or
possessed any items that might be indicative of intent to steal, such as
burglary tools or bags to carry away property.
On this record, as the People acknowledge, under the principles
summarized above, it was not reasonably inferable that appellant performed, or
aided and abetted in, any act with the specific intent to commit burglary. Therefore, as the People concede, appellant’s
adjudication of attempted burglary cannot stand.

Section 702

As also indicated above, appellant
contends and the People concede that the court failed to declare whether the
count 2 offense—assault by means of force likely to produce great bodily injury
in violation of Penal Code section 245, subdivision (a)(1)—was a felony or
misdemeanor, in violation of section 702.

Governing
Principles

Section 702 provides, in relevant part: “[I]f the minor is found to have committed an
offense which would in the case of an adult be punishable alternatively as a
felony or a misdemeanor, the court shall declare the offense to be a misdemeanor
or felony.” An offense which, in the
discretion of the court, may be punished as either a felony or a misdemeanor is commonly called a
“wobbler.” (In re Manzy W. (1997)
14 Cal.4th 1199, 1201 (Manzy W.).) As the parties agree, Penal Code section 245,
subdivision (a)(1) is a wobbler.

The purpose of section 702 is two-fold: (1) to “provid[e] a record from which the
maximum term of physical confinement for an offense can be determined,
particularly in the event of future adjudications” (Manzy W., supra, 14
Cal.4th at p. 1205), and (2) to “ensur[e] that the juvenile court is aware of,
and actually exercises, its discretion under … section 702” (>id. at p. 1207).

“The language of [section 702] is
unambiguous. It requires an >explicit declaration by the juvenile
court whether an offense would be a felony or misdemeanor in the case of an
adult.” (Manzy W., supra, 14
Cal.4th at p. 1204, italics added; accord, In
re Kenneth H. (1983) 33 Cal.3d 616, 619 (Kenneth H.) [“section 702 means what it says and mandates the
juvenile court to declare the offense a felony or misdemeanor”].) “[N]either the pleading, the minute order, nor the setting of a
felony-level period of physical confinement may substitute for a declaration by
the juvenile court as to whether an offense is a misdemeanor or felony.” (Manzy
W., at p. 1208.)

In addition, California Rules of
Court, rule 5.780(e) provides that if the juvenile court finds the allegation
of a wardship petition true, it “must make [certain enumerated] findings,”
including the following: “(5) In a [Welfare and Institutions Code] section
602 matter, the degree of the offense and whether it would be a misdemeanor or
a felony had the offense been committed by an adult. If any offense may be found to be either a
felony or a misdemeanor, the court must consider which description applies and
expressly declare on the record that it has made such consideration, and must
state its determination as to whether the offense is a misdemeanor or a
felony. These determinations may be
deferred until the disposition hearing.”
And California Rules of Court, rule 5.790(a) provides in relevant
part: “At the disposition hearing: [¶]
(1) If the court has not previously considered whether any offense is a
misdemeanor or felony, the court must do so at this time and state its finding
on the record. If the offense may be
found to be either a felony or a misdemeanor, the court must consider which
description applies and must expressly declare on the record that it has made
such consideration and must state its finding as to whether the offense is a
misdemeanor or a felony.”

A juvenile court’s failure to
comply with section 702 does not invariably necessitate remand. (Manzy
W., supra, 14 Cal.4th at p.
1209.) “[S]peaking generally, the record
in a given case may show that the juvenile court, despite its failure to comply
with the statute, was aware of, and exercised its discretion to determine the
felony or misdemeanor nature of a wobbler.
In such case, when remand would be merely redundant, failure to comply
with the statute would amount to harmless error.… The key issue is whether the record as a
whole establishes that the juvenile court was aware of its discretion to treat
the offense as a misdemeanor and to state a misdemeanor-length confinement
limit.” (Ibid.)

Analysis

Here, as the parties agree, the
juvenile court did not, at either the jurisdiction hearing or the disposition
hearing, declare on the record whether the count 2 offense was a felony or a
misdemeanor, or in any way indicate it knew it had the discretion to make such
determination. Therefore, the court did
not comply with section 702. And as the
parties also agree, because nothing else in the record suggests the court was
aware of its section 702 discretion, this error cannot be deemed harmless.

DISPOSITION

Appellant’s adjudication of attempted burglary is
reversed and the disposition order of February 14, 2012, is vacated. The matter is remanded for a new disposition
hearing. At that hearing, the juvenile
court is directed to exercise its discretion to declare the count 2 assault
offense to be either a felony or a misdemeanor and to state on the record that
it has made such consideration. In all
other respects, the order is affirmed.>