In re Parrish B.

Filed 6/17/08 In re Parrish B. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Parrish B. appeals from juvenile court orders finding that he committed first degree burglary and first degree robbery and committing him to a juvenile facility for a maximum period of confinement of 13 years. We reject his contention that there was insufficient evidence to support the finding that he committed the two offenses, but we cannot determine how the juvenile court arrived at the maximum period of commitment and thus cannot determine if the period is excessive. Therefore we shall affirm the jurisdictional order but remand for the court to make further findings regarding the appropriate maximum confinement time.

Background

On December 5, 2006, a petition was filed in Contra Costa County Juvenile Court under Welfare and Institutions Code section 602 alleging that Parrish committed first degree residential robbery (Pen. Code,[1]  211, 212.5, subd. (a)) and first degree residential burglary ( 459, 460, subd. (a)), and had used a handgun in the commission of the offenses ( 12022, subd. (a)(1).)[2] Parrish denied the allegations.

At the jurisdictional hearing, the following testimony was given. Rosa Ruiz testified that on December 2, 2006, she was at her home with Carlos Vargas and Antonio Vargas. She was in the living room when three men, one of whom was Parrish, pushed Carlos out of the way and entered the house. The men said they were looking for Antonio. One of the men indicated that they just wanted to go in [and] get some money. Carlos asked the men to leave but they refused to go. While the men were in the house, Ruiz received a telephone call and Parrish told her, yeah, Im taking this phone from you. While Ruiz was on the phone, the men told her not to say anything. The men asked for money, but neither Ruiz nor Carlos gave them any. One of the men had a gun and threatened to shoot someones foot off. When he said this, Parrish laughed. The men took a bottle of tequila and a set of keys without permission.

Antonio Vargas testified he had previously sold a car to one of the men, Jaques Buie. The registration he had given Buie was for a different vehicle. When the three men arrived on December 2, Antonio was in the bathroom. He called 911 from the bathroom because he heard the men saying that if they didnt get any money that they were going to shoot somebody or that they were looking for me . . . . He identified Parrish as one of the people arrested when the police arrived.

Carlos Vargas, Antonios brother, testified that he was also at the house on December 2. The three men knocked on the door first, and then they pushed their way in. The men asked for my brother and my parents and money. When Carlos told the men that neither Antonio nor their parents were home, the men tried to have me call them, and then they pushed their way in through the door. And then they ran through the house saying that they wanted something that was worth money. If my parents wasnt here, to give them money. Once inside the house, they pulled out the gun.

The juvenile court sustained both counts and found the enhancements to be true. Because Parrish was already a ward of the juvenile court in San Francisco, the matter was transferred to the San Francisco County Juvenile Court for disposition. The court there continued Parrish as a ward and placed him on probation on the condition that he successfully complete the Log Cabin Ranch School program. Without indicating how the period was determined, the court designated 13 years as the maximum term of confinement for both the current and the prior sustained petitions. Parrish timely appealed.

Discussion

Intent to commit burglary

Parrish argues that there was no substantial evidence to support the finding that he committed burglary. He contends there is no evidence that he entered the Vargas home with the motive of committing a felony, and disputes the courts ruling excluding testimony concerning the value of the car that Antonio sold to Buie. The court sustained a relevance objection to this testimony, stating, You know, if this is a case where somebody feels that they were wrongly . . . taken advantage of or whatever, were not dealing with that. Were dealing with the charges of a home invasion robbery and guns and all sorts of other things that have nothing to do withmotivation is not the issue right here. Parrish argues that this ruling was erroneous because Parrishs motivation was the key issue in determining whether or not he had committed a burglary. The facts and circumstances in this case indicate clearly that the robbery was an afterthought, and not a reflection of Parrishs felonious intent at the time of entry.

The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]  [I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder.  [Citation.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the [finder 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 [finder of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt.   (People v. Snow (2003) 30 Cal.4th 43, 66.)

Penal Code section 459 provides in relevant part that Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. [A]lthough malice and certain intents and purposes are elements of the crimes, . . . motive is not an element. Motive, intent, and malicecontrary to appellants assumptionare separate and disparate mental states. The words are not synonyms. . . . [Citation.] Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice. (People v. Hillhouse (2002) 27 Cal.4th 469, 503-504.)

Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence. [Citations.] Whether the entry was accompanied by the requisite intent is a question of fact for the [fact finder]. [Citation.] Where the facts and circumstances of a particular case and the conduct of the defendant reasonably indicate his purpose in entering the premises is to commit larceny or any felony, the conviction may not be disturbed on appeal.  (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)

Here, with or without evidence of the cars value, the facts and circumstances were sufficient to support a finding of the requisite intent to commit burglary. The juvenile court rationally could find beyond a reasonable doubt that the three men, including Parrish, entered the Vargas residence with the intention of obtaining a return of the money paid for the car or, failing that, of taking items of value to compensate for what they paid Antonio for the car. That no items of great value were taken is irrelevant. The fact that the men entered armed with a gun, demanded to speak with Antonio about the sale of the car, threatened to shoot someone and, when Antonio did not appear, began looking for things to take is sufficient to support the courts implicit finding that the intent to steal had been formed prior to entering the house. Where, as here, the [fact finders] findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding does not render the evidence insubstantial. (People v. Earp (1999) 20 Cal.4th 826, 887-888.)

Parrish argues that because the prosecution and the defense agreed that the entry was motivated by the dispute over the malfunctioning car . . . no inference can be drawn in support of felonious intent from the fact of the entry. This argument overlooks the substantial evidence, recited above, indicating that failing a peaceable return of money, the three intended to take money or other valuables in compensation. Parrish may be correct that the evidence also was susceptible of a different interpretation, but that is not the standard on appeal. Moreover, the specific ruling that Parrish challengesexcluding evidence of the value of the cardid not affect this analysis.

Section 654 finding

Parrish also argues that the maximum period of confinement specified by the trial court is erroneous because the court incorrectly included in the 13 years both the upper term for the robbery count and one-third the midterm for the burglary count, rather than making a finding under section 654, which precludes multiple punishments for a single act or indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) That section provides in relevant part that An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. ( 654, subd. (a).) Although it literally applies only where such punishment arises out of multiple statutory violations produced by the same act or omission, we have extended its protection to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time.   (People v. Oates (2004) 32 Cal.4th 1048, 1062.) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)

Although Parrish did not raise this issue in the juvenile court,  [T]he waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.  (People v. Hester, supra, 22 Cal.4th at p. 295.)

Welfare and Institutions Code section 726, subdivision (c) provides in relevant part that a dispositional order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.[3] There is nothing in the record indicating how the juvenile court calculated Parrishs maximum confinement to be 13 years. The probation report indicates that the maximum confinement should be 12 years and 8 months, but likewise provides no explanation of how this number was derived. The parties offer conflicting speculative theories as to how the court might have calculated 13 years, and as to whether it did or did not, and properly could or could not, exclude from the calculation any period for the burglary count by reason of section 654. Among other possibilities suggested by the Attorney General is that the court relied on section 213, subdivision (a)(1)(A), which provides enhanced sentencesthree, six, or nine years as opposed to three, four, or six yearsfor home robbery committed by a defendant voluntarily acting in concert with two or more other persons. However, although the facts may indicate that Parrish did act in concert with two others, this allegation was not included in the petition, there was no finding that he voluntarily did so, and the court gave no indication that it was relying on that section. Rather than speculate as to how the maximum term was calculated, we deem it advisable to remand the matter to the juvenile court to articulate the basis for its determination. We do so because the application of section 654 requires a finding as to whether the offenses were merely incidental to or means of accomplishing a single objective, a question of fact for the trial court.[4] (People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1143.) Although this task is complicated here by the fact that the court making the disposition is not the same as the court that sustained jurisdiction, the determination should be made in the first instance by the trial court.

Disposition

The jurisdictional order is affirmed. The dispositional order is vacated and the matter is remanded to the juvenile court to redetermine the maximum time of confinement in conformity with this opinion.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Further unspecified statutory references are to the Penal Code.

[2] The petition originally contained two separate counts of residential robbery while armed, one alleging that Carlos Vargas was the victim and the second alleging that Rosa Ruiz was the victim. Following the jurisdictional hearing, the court amended one of those counts to include both victims and dismissed the second count.

[3] Subdivision (c) of Welfare and Institutions Code continues, As used in this section and in Section 731, maximum term of imprisonment means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled. [] If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the maximum term of imprisonment shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code.

[4] The Attorney General also argues that section 654 is inapplicable here because there were multiple victims. Under the multiple victim exception,   even though a defendant entertains but a single principal objective during an indivisible course of conduct, he [or she] may be convicted and punished for each crime of violence committed against a different victim. [Citations.]  [Citation.] However, burglary does not constitute a crime of violence unless the defendant inflicted great bodily injury in the commission of the burglary.  (People v. Le (2006) 136 Cal.App.4th 925, 932.) There is no evidence in the record that any of the victims sustained injury.