In re Noel O.
Filed 7/23/12 In re Noel O. CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re NOEL O., a Person Coming
Under the Juvenile Court Law.
B236674
(Los Angeles
County
Super. Ct.
No. VJ38149)
THE PEOPLE,
Plaintiff and Respondent,
v.
NOEL O.,
Defendant and Appellant.
APPEAL from
an order of the
County Superior Court,
Heidi Shirley, Juvenile Court Referee. Affirmed in part and remanded for further
proceedings.
Mary
Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Jonathan
M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Noel
O. appeals from the juvenile court’s order declarating him a continuing ward of
the court and directing that he remain home on probation. He contends the evidence is insufficient to
support the finding he committed a burglary and, alternatively, the court
failed to determine whether the offense was a misdemeanor or a felony. We affirm in part and remand for further
proceedings.
FACTUAL AND
PROCEDURAL BACKGROUND
In February 2011, while
Noel was home on probation after being declared a ward of the
resolution of three prior petitions, the People filed a new petition under
Welfare and Institutions Code section 602
alleging he had committed a burglary (Pen. Code, § 459) at Paramount High
School between July 23, 2010 and July 26, 2010.
Noel denied the allegation.
According to the
evidence presented at the jurisdiction hearing, Paramount High School consists
of two separate campuses; the West Campus is attended only by ninth grade
students. A collection of trailers near
the northeast end of the West Campus is known as “the math village.” Each trailer serves as a separate
classroom.
On July 26, 2009 the
teacher assigned to classroom 60 in the math village for a summer school
session discovered a laptop computer, a digital projector, an external hard
drive and power cords were missing.
Investigating the reported theft, Vice Principal Scott Law discovered
the security screen of a window on the back of classroom 60 appeared to have
been pried open and removed. Law also
saw that the chain link fence separating the math village from the basketball
courts had been cut open and two feet of fencing had been peeled back to gain
access to the classrooms. In addition, a
lock protecting the air conditioning vents for the classrooms had been damaged,
and a padlock on a storage shed in the math village had been pried open.
Noel attended the West
Campus of Paramount High School as a ninth grader two years before the
burglary. During that time he lived
across the street from the campus.
School records indicated Noel had “no course history in the math
village” while a student at the school.
Latent fingerprints found on a window frame in classroom
60 and on the door of the storage shed matched Noel’s. Specifically, prints of a right index finger
lifted from the interior frame of the window and the right thumb lifted from
the outside door of the storage shed were identified as Noel’s.
After the
People rested, Noel’s motion to dismiss the petition for insufficient evidence
was denied. Noel neither testified nor
presented other evidence in his defense.
Following closing argument, the court sustained the petition, finding
the People had proved beyond a reasonable doubt Noel had committed the
burglary. The court declared the minor a
continuing ward of the court and ordered him to remain home on probation and to
perform 80 hours of community service.
1.
The
same standard governs review of the
sufficiency of evidence in juvenile
cases as in adult criminal
determine whether any rational trier
of fact could have found the essential elements of the crime or special
circumstances beyond a reasonable doubt.
[Citation.] The record must
disclose substantial evidence to support the verdict—i.e., 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.]
In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] ‘Conflicts and even testimony [that] 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.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]’
[Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the
jury’s verdict.” (
357; see In re
Matthew A. (2008) 165 Cal.App.4th
537, 540.)
2. Substantial
Evidence Supports the Finding Noel Committed the Burglary
Noel does not dispute that a
that the fingerprints recovered at the criminal scene and admitted into
evidence belonged to him. Rather, he
contends this fingerprint evidence was insufficient to support the finding he
committed the burglary because it is impossible to determine when he left the
fingerprints at the school.
“Fingerprint evidence is . . . ‘the strongest evidence
of identity, and is ordinarily sufficient alone to identify the
defendant.’” (People v. Bailes (1982) 129 Cal.App.3d 265, 282 (
whether fingerprints or palmprints of the accused are alone sufficient to
identify the defendant as the criminal must depend on the particular
circumstances of the case.
[Citations.] Where such prints
are found at the place of forced entry, particularly where such location is
normally inaccessible to others, there is a reasonable basis for the inference
that the prints were made there at the time of the commission of the offense
and under such circumstances may alone be sufficient to identify the
accused.” (People v. Atwood (1963) 223 Cal.App.2d 316, 326, overruled on other
grounds in People v. Carter (2003) 30
Cal.4th 1166, 1197-1198.) “The jury is
entitled to draw its own inferences as to how the defendant’s prints came to be
on the [object] and when . . . and to weigh the evidence and opinion of the
fingerprint experts.” (
In Bailes
the defendant was convicted of burglary based solely on the presence of his
fingerprint on a bathroom window screen that had been bent away from the window
to allow access to the burglarized residence.
(Bales, supra, 129 Cal.App.3d
at pp. 268-269.) The defendant’s family
members testified the defendant was with his father and brother on the morning
of the burglary; the stolen items were never seen in the defendant’s room or
anywhere else in the family home; and the defendant “quite regularly” worked
for his father, a plastering contractor, during which the defendant removed
window screens as part of his job. (
palm print, or footprint [was] left inside a structure or at a point of unusual
access,” the appellate court concluded the jury could reasonably infer the
defendant had left his print on the screen in the process of burglarizing the
residence. (Id. at p. 282.)
Similarly, in People v. Preciado (1991) 233 Cal.App.3d 1244, 1246, the sole
evidence against a burglary defendant was a fingerprint left on a wristwatch
box. The victim testified he did not
know the defendant, and the box had remained in the victim’s home since the
victim acquired it 18 months before. (
The appellate court held the fingerprint evidence alone was sufficient
to prove defendant’s identity.
Here, the evidence established the security screens on
the windows of the math village classrooms were normally closed; they could be
unlocked from inside the classrooms in the event of a fire. On the day the burglary was reported, a
security screen on a window of classroom 60 had been pried open. Noel’s claim to the contrary notwithstanding,
the juvenile court could have reasonably inferred this damaged window screen
was the point of entry into classroom 60, where the laptop computer and other
items had been stolen.
name="_ftnref3" title="">[3]
To be sure, there was no evidence
when the inside of the window had last been washed prior to the burglary. Accordingly, Noel argues his fingerprints
could have been left two years earlier while he was attending school at the
West Campus. (See, e.g.,
found on the victim’s dresser drawer after he had been a guest in the victim’s
home prior to the victim’s killing.
Because the age of the thumbprint could not be ascertained, it was
insufficient evidence of the defendant’s guilt; the jury could only “‘speculate
as to how and when the print was made.’”] disapproved on other grounds in
1219-1222.) In support of this
contention Noel argues (without any support in the record) the places where his
fingerprints were found, classroom 60 and the storage shed, were accessible to
him as a ninth grade student.
Relying on the Ninth Circuit’s
decision in Mikes v. Borg (9th Cir.
1991) 947 F.2d 353, Noel asserts this purported uncertainty as to the time of
placement of his fingerprints requires a reversal. In Mikes
the victim had been killed with one of the posts from a disassembled turnstyle
the victim had purchased at a going-out-of-business sale. The only evidence linking defendant to the
murder was his fingerprints on the post, found near the victim’s body. (Id.
at pp. 355-356.) In the absence of
evidence the post was inaccessible to defendant prior to the murder, the Ninth
Circuit held the fingerprint evidence was insufficient to prove his identity as
the killer because the fingerprints could have been left on the post while it
was publically accessible in the store before the victim purchased it. (Id.
at pp. 358-359).)
Noel’s quotations from Mikes v. Borg, supra, 947
F.2d 353, and his challenge to the sufficiency of the evidence are a thinly
disguised invitation to reweigh the evidence, an invitation we decline. His unsupported assertion he could have
touched the interior of the window frame in room 60 for “a variety of reasons”
as a ninth grade student fails to counter the reasonable inference the print
was made at the time of the crime since, unlike the defendant in
the victim’s home, Noel had never taken a class at the math village and had not
attended school at the West Campus for the preceding two years. (See People
v. Preciado, supra, 233
Cal.App.3d at p. 1247.) That inference
is reinforced by the presence of Noel’s fingerprints on the storage shed, as
well as on the classroom window, which had also been forced open during the
burglary. (See, e.g.,
at p. 282.) Sufficient evidence supports
the finding Noel committed the burglary.
3. The
Court Erred in Failing To Determine Whether the Burglary Is a Misdemeanor or a
Felony
Second
degree burglary, the offense alleged here, may be either a misdemeanor or
felony. (Pen. Code, §§ 460, 461, subd.
(b).) When a juvenile is found to have
committed an offense that in the case of an adult could be punished as a
misdemeanor or felony, section 702 requires the juvenile court to declare the
offense to be a misdemeanor or felony.
(See Cal. Rules of Court, rules 5.780(e)(5) [requiring expressed
declaration whether offense is misdemeanor or felony following a contested
jurisdiction hearing], 5.795(a) [requiring declaration whether offense is
misdemeanor or felony following disposition hearing if not previously
determined].) The requirement “serves
the purpose of ensuring that the juvenile court is aware of, and actually
exercises, its discretion” under the statute.
(In re Manzy W. (1997) 14
Cal.4th 1199, 1207.) An express declaration is necessary. The court’s failure to comply with this
mandate requires a remand unless the record shows the juvenile court was aware
of, and actually exercised, its discretion to determine the offense to be a
misdemeanor or a felony. (
In
this case the juvenile court failed to declare whether the burglary committed
by Noel is a misdemeanor or felony.
Neither alleging the offense is a felony in the section 602
petition nor checking the felony box in the unsigned minute order is
sufficient. Accordingly, as the Attorney
General concedes, the matter must be remanded for the court to expressly
declare on the record whether the burglary is a misdemeanor or felony.
DISPOSITION
The matter
is remanded to the juvenile court to exercise its discretion to declare on the
record whether the underlying offense is a misdemeanor or a felony and to
correct its disposition order by eliminating any determination of the maximum
term of confinement. In all other
respects the order is affirmed.
PERLUSS,
P. J.
We
concur:
WOODS, J.
ZELON, J.
name="_ftn1" title="">[1] Statutory references are
to the Welfare and Institutions Code unless otherwise indicated.
based on the current petition and the earlier sustained petitions, of four
years eight months. However, because
Noel was placed home on probation, the court’s calculation of that maximum term
is of no legal effect. (See
572-574 [when minor placed home on
probation, juvenile court is not authorized to include maximum term of
confinement in disposition order; maximum term of confinement contained in such
an order is of no legal effect]; In re
Joseph G. (1995) 32 Cal.App.4th 1735, 1744 [“[o]nly when a court orders a
minor removed from the physical custody of his parent or guardian is the court
required to specify the maximum term the minor can be held in physical
confinement”].) Because, as will be
discussed, we must return the matter to the juvenile court to declare on the
record whether the burglary is a misdemeanor or a felony, rather than strike
this portion of the disposition order as we normally would (see
537, 541), we leave it to the juvenile court to modify its order on remand.
