Filed 12/19/18 In re Alberto C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Aaron H. Katz, Judges. Affirmed with directions.

Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

The juvenile court found true allegations Alberto C. (Minor) committed felony burglary (Pen. Code, § 459; count 1) and unlawfully possessed burglary tools, a misdemeanor (Pen. Code, § 466; count 2). The court adjudged Minor a ward of the court and placed him on probation with various terms and conditions.

On appeal, Minor contends the juvenile court (1) erroneously denied his motion to dismiss the petition pursuant to Welfare and Institutions Code section 701.1[1] because the People presented insufficient evidence he committed the charged crimes and (2) failed to declare whether the burglary was a felony or a misdemeanor under section 702. He also challenges two probation conditions as unconstitutionally vague or overbroad: the condition allowing a search of "any property" in his possession and the condition forbidding possession of burglary tools. Finally, Minor asks the court to correct the minute order to conform to the court's oral pronouncement of judgment allowing him to travel to Mexico for dental visits. We direct the clerk of the court on remand to amend the minute order to reflect the court's permission to travel to Tijuana with a parent for dental or orthodontia visits with prior notification to the probation officer of the scheduled visits. In all other respects, we disagree with Minor's contentions and, accordingly, affirm the judgment.

BACKGROUND

A

On November 5, 2017, after midnight, a security guard for a junior high school heard a sound over a school security speaker installed in her home, which was near the school. The noise sounded like movement inside the school. The guard drove to the school and saw a flashlight beam inside the cafeteria. The cafeteria lights were off, and the rest of the campus was dark. The guard parked where she could see the cafeteria, called the police, and waited until the police arrived.

When officers arrived, they found a window open near the main office rear entrance. The officers opened the office door and made loud announcements telling anyone in the building to announce their presence, come to the door, and exit the building. After several announcements, an individual came out of the office followed by two other individuals. The officers ordered them to the ground. Officers identified Minor in court as one of the individuals.

During a pat-down search, officers found a screwdriver in the pocket of one of the other minors. The officer suspected it was a burglary tool, which was consistent with pry marks found on the main entrance door.

All three individuals wore backpacks, which were searched. A hammer, a crowbar, and a pry bar were found in one of the backpacks.

A search of the building revealed the open window and pry marks on the door to the main office building. Doors were open throughout the building, but it did not appear anything was disturbed in the office. The minors did not say they entered with an intent to commit a felony.

B

Minor testified in his own defense. Minor sneaked out of his house to meet two friends and walk to a nearby school. They wanted to go on the roof.

Once they got to the school, Minor leaned on a window, which opened. He slid his hand through the window and unlocked the window above. He then asked his friends if they wanted to go inside the school. Minor denied he thought about stealing or breaking anything.

Minor thought they all entered through the window. He denied anyone used a screwdriver on the door. Minor said they talked inside but did not mention stealing or breaking anything.

They noticed a truck in the school parking lot, so they waited about 10 minutes. When Minor next looked, he saw a police car. Eventually, they heard someone announce the police were present. The officers said to come out with their hands up because the officers had a dog. Minor and his friends went outside.

Minor testified they did not take anything that was not theirs. They did not break anything inside. Minor said he did not intend to help anyone steal or break anything.

Minor knew his friends had tools. One of Minor's friends said he had a hammer and two crowbars in his backpack. Minor testified he thought his friend had the tools to defend themselves because the area was dangerous. Minor could reach into the backpack and take the items. The other friend told them he had a screwdriver when they were inside the school. Minor said it was wrong to go into the school.

Minor admitted they decided to get into the main office rather than go onto the roof. Minor also admitted he knew the doors were locked and he had to unlock a window to gain entry. He said they walked around the main office for fun, but were not looking for anything valuable and did not open any cabinets or drawers. Minor admitted he emptied his backpack before he left his house and carried the backpack empty.

C

At the conclusion of the case, the court stated, "Today the Court is going to find the allegations true beyond a reasonable doubt and a felony as to Count 1 and a misdemeanor as to Count 2." The court did not find Minor's testimony about going to the school to climb on the roof to make reasonable sense. The court stated, "everything points to taking something." The court noted Minor told his friends where to meet, walked a mile at midnight, carried empty backpacks and burglary tools, and did not turn the lights on when they got to the school. When they were inside, they waited until a car in the parking lot left. The court also found unreasonable Minor's testimony he pushed open the window by accident after becoming curious, knowing the doors were locked. The court declined to rule on defense counsel's request to reduce the burglary charge to a misdemeanor pursuant to Penal Code section 17, subdivision (b). The court stated the defense could renew the motion at the dispositional hearing.

At the dispositional hearing, the court confirmed Minor had reviewed the recommended terms and conditions with his attorney and agreed to abide by them. The court adjudged Minor a ward of the court, placed Minor with his parents, and adopted the recommended terms and conditions.

DISCUSSION

I

Motion to Dismiss

Minor contends the court erred in denying his motion to dismiss the petition at the conclusion of the People's case. He contends the People did not present sufficient evidence to support the petition. We disagree.

A

"Section 602 extends juvenile court jurisdiction to persons who are under 18 years of age when they violate any law 'defining crime.' [Citations.] A person found to satisfy section 602 comes under the dispositional jurisdiction of the court." (In re Eddie M. (2003) 31 Cal.4th 480, 486.) During the jurisdictional phase of the bifurcated proceeding, "the juvenile court decides whether the petition concerns a person described in section 602. … Under section 701, the petition cannot be sustained absent '[p]roof beyond a reasonable doubt supported by evidence [] legally admissible in the trial of criminal cases.' " (Id. at p. 487.)

Section 701.1 allows the court to enter a judgment of dismissal in a juvenile case at the close of the People's case: "At the hearing, the court, on motion of the minor or on its own motion, shall order that the petition be dismissed and that the minor be discharged from any detention or restriction therefore ordered, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by [s]ection 601 or 602. If such a motion at the close of evidence offered by the petitioner is not granted, the minor may offer evidence without first having reserved that right."

This section "is substantially similar to Penal Code section 1118 governing motions to acquit in criminal trials and that therefore the 'rules and procedures applicable to [Penal Code] section 1118 … apply with equal force to juvenile proceedings.' " (In re Anthony J. (2004) 117 Cal.App.4th 718, 727.) Thus, in ruling on a section 701.1 motion, the juvenile court "is required 'to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the defendant is "proved beyond a reasonable doubt before [the defendant] is required to put on a defense." ' " (Ibid.)

On appeal, we review the denial of a motion to dismiss for substantial evidence. "[W]e must 'assume in favor of [the court's] order the existence of every fact from which the [court] could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person or persons accused of the offense. [Citations.] Accordingly, we may not set aside the trial court's denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.' " (In re Man J. (1983) 149 Cal.App.3d 475, 482; People v. Mendoza (2000) 24 Cal.4th 130, 175 ["A trial court should deny a motion for acquittal … when there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged"].)

B

At the conclusion of the People's case, defense counsel moved to dismiss the petition pursuant to section 701.1 contending the People had not proved burglary beyond a reasonable doubt. Specifically, defense counsel argued there was no evidence of Minor's intent in entering the building since nothing was disturbed in the school, nothing was found on the Minor or in his backpack, and the other individuals did not say they intended to steal. Defense counsel also argued there was no evidence Minor had control of the tools or that there was a felonious intent to steal in connection with the possession of the tools. The People opposed the motion, arguing the totality of the circumstances by being in the school office at midnight with burglary tools showed an intent to commit a felony. The People also contended Minor had constructive possession of the tools found in possession of his friends. The court denied the motion.

C

"Burglary involves the act of unlawful entry accompanied by the specific intent to commit grand or petit larceny or any felony." (In re Matthew A. (2008) 165 Cal.App.4th 537, 540 citing Pen. Code, § 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041.) "In order to constitute burglary, the defendant must intend to commit the theft or felony at the time of entry. [Citation.] However, the existence of the requisite intent is rarely shown by direct proof, but may be inferred from facts and circumstances." (In re Matthew A., at pp. 540–541.)

It is well established that "urglarious intent can reasonably be inferred from an unlawful entry alone. [Citation.] [b] Even if no crime be committed after the entry, circumstances such as flight after being hailed by an occupant of the building [citation], the fact that the building was entered through a window [citation] or through a doorway which previously had been locked [citations] without reasonable explanation of the entry, will warrant the conclusion by a jury that the entry was made with the intention to commit theft." (People v. Jordan (1962) 204 Cal.App.2d 782, 786–787; see People v. Matson (1974) 13 Cal.3d 35, 41–42 [substantial evidence for burglary found where defendant surreptitiously entered an apartment, hid in a bathroom with the lights out, and denied doing so].)

Additionally, a defendant may be guilty of a crime as an aider and abettor if the person acts " ' "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. Jurado (2006) 38 Cal.4th 72, 136.) " '[W]hile mere presence at the scene of an offense is not sufficient in itself to sustain a conviction, it is a circumstance which will tend to support a finding that an accused was a principal. [Citations.]' [Citation.] ' "[C]ompanionship, and conduct before and after the offense" ' are also relevant to determining whether a defendant aided and abetted a crime." (People v. Miranda (2011) 192 Cal.App.4th 398, 407.)

We conclude there was substantial evidence to support the juvenile court's decision to deny the motion to dismiss the burglary charge. The People presented evidence that Minor and his friends entered the school around midnight without permission. Movement was heard in the school and a window was found open in the office along with pry marks on an office entrance door. The security guard saw flashlight beams moving around the darkened school before police arrived. Minor and his friends came out only when ordered several times to do so by police. Minor and his friends all had empty backpacks and the friends carried pry bars and a screwdriver, which are tools for burglary.

Considering these facts, an entirely reasonable inference may be drawn that Minor and his friends entered the school with an intent to commit a felony. The fact they did not actually take or damage anything does not speak so much to a lack of intent as to the quick action of the security guard who was able to get to the school and summon police immediately. It was also reasonable to infer Minor had constructive possession of the burglary tools available in the backpack of one friend and on the person of another.

II

Felony Declaration

Minor contends the court failed to comply with its statutory duty to state whether the offense the court found Minor committed was a felony or a misdemeanor. We disagree.

Section 702 states, "If 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." This requirement is obligatory. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) Burglary in the second degree is a "wobbler," which may be punished as either a felony or a misdemeanor. (Pen. Code, § 461; People v. Trausch (1995) 36 Cal.App.4th 1239, 1244.)

The statutory requirement of section 702 serves two purposes: it facilitates "the determination of the limits on any present or future commitment to physical confinement for a so-called 'wobbler' offense" (Manzy W., supra, 14 Cal.4th at p. 1206) and it "ensur[es] that the juvenile court is aware of, and actually exercises, its discretion." (Id. at p. 1207.) The juvenile court is not required to state its reasoning or rationale in declaring the offense a misdemeanor or a felony. (In re Jacob M. (1989) 210 Cal.App.3d 1178, 1180 ["The statute by its terms demands only a declaration—a statement of the existence of either a felony or a misdemeanor"].)

In this case, count 1 of the petition alleged Minor committed felony burglary. After hearing the evidence and arguments of counsel, the juvenile court stated, "Today the [c]ourt is going to find the allegations true beyond a reasonable doubt and a felony as to Count 1 and misdemeanor as to Count 2." (Italics added.) The felony finding is also noted in the court minutes.

After making the findings, the court stated, "I didn't find [Minor's] testimony to make reasonable sense that he went there to climb on the roof when almost … everything points to taking something—empty backpacks, burglary tools, didn't turn the lights on when they got in there. If they were so innocent, they might have turned the lights on. Instead they used a flashlight and hid and waited until the car that was in the parking lot left." The court went on to say Minor "told his friends where to meet. They walked a mile at midnight. And he knew the doors were locked, he testified, and he suddenly got curious and suddenly was able to push open a window by accident. That's what he testified. It's just not reasonable."

Unlike in Manzy W., supra, 14 Cal.4th at page 1207, where the court made no statement about whether the offense was a felony or a misdemeanor, the court here declared the offense a felony, as required by section 702. The parties understood the court's declaration of a felony. Defense counsel did not ask the court to make a finding under section 702. Instead, counsel asked the court to exercise its discretion to reduce the felony finding for count 1 to a misdemeanor pursuant to Penal Code section 17. The juvenile court stated she did not have sufficient information about the Minor's history to do so. The court asked if the People were opposed to reducing the burglary charge to a misdemeanor. The prosecutor confirmed the People's opposition stating the evidence showed a sophisticated plan by the Minor. The court concluded it would be appropriate for the judge presiding over the dispositional hearing to consider a motion under Penal Code section 17. Defense counsel did not raise the issue again at the dispositional hearing. Absent an affirmative showing to the contrary, we presume the court understood and properly applied the law. (People v. Coddington (2000) 23 Cal.4th 529, 644.)

III

Probation Conditions

Minor challenges several probation conditions on appeal, which we address separately. We generally review the imposition of probation conditions for abuse of discretion. However, we review constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)

A

Property Search Authorization

Minor first challenges the court's imposition of a probation condition requiring Minor to "submit his/her person, property, or vehicle, and any property under his/her immediate custody or control to search at any time, with or without a search warrant, …." Minor contends the search condition is unconstitutionally vague and overbroad because it can be construed to grant the right to search "intangible electronic data and media accessible on [Minor's] electronic devices" such that it invades his "Fourth Amendment rights and his right to privacy, and is not narrowly tailored to prevent future criminal activity or to ensure the minor's compliance with probation." Minor asks us to modify the condition "to permit searches of only the physical aspects of his electronic devices and tangible property in his custody or control."

"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880.) An exception applies to the forfeiture rule if the challenge presents a facial constitutional challenge presenting "a pure question of law, easily remediable on appeal by modification of the condition." (Id. at p. 888.) However, an "alleged constitutional defect that is 'correctable only by examining factual findings in the record or remanding to the trial court for further findings' " is not a facial constitutional challenge, and traditional forfeiture principles apply. (In re I.V. (2017) 11 Cal.App.5th 249, 261 (I.V.).)

Minor did not object to the search condition in this case as either overbroad or vague. His counsel submitted on the recommendations from the probation department. Minor acknowledged he had reviewed the terms and conditions with his counsel and agreed to abide by them. Nevertheless, he contends he may present the issue on appeal because he is making only a facial challenge to the condition.

"Vagueness considers whether a condition is sufficiently precise to give the probationer fair warning of what conduct is required or prohibited; overbreadth considers the closeness of fit between the state's interest in reformation and rehabilitation and the burden imposed on the minor's constitutional rights." (I.V., supra, 11 Cal.App.5th at p. 260.)

We rejected a facial vagueness challenge to an identical probation condition in the case of I.V., supra, 11 Cal.App.5th 249. "To withstand a vagueness challenge, 'a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition.' " (Id. at p. 261 citing People v. Hall (2017) 2 Cal.5th 494, 500.) "A probation condition survives a vagueness challenge if it can be given any reasonable and practical construction." (I.V., at p. 261.) In I.V., we observed "probation conditions authorizing searches of a probationer's person, property, and vehicle are 'routinely imposed.' " (Ibid.) The I.V. court concluded a reasonable construction of the condition authorizing warrantless searches of a minor's " 'person, property, [and] vehicle' " "applies only to tangible physical property, and not to electronic data." (Id. at p. 262.) "If a court intends to authorize warrantless searches of a probationer's electronic data, the procedure is straightforward—the court must impose an explicit search condition pertaining to electronic data." (Ibid.) We apply the same analysis in this case and construe the challenged search condition to encompass only tangible physical property.

Because we conclude the probation condition does not encompass authorization to search electronic devices, we need not address Minor's contention a condition authorizing such electronic searches is overbroad.

B

Burglary Tools

Minor next contends we should clarify the scope of the probation condition prohibiting him from possessing burglary tools because the court's reference to "any tools" at the disposition hearing rendered the condition unconstitutionally vague since a court's oral pronouncement controls over the minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) We disagree.

The probation officer's social study recommended probation conditions including a condition Minor "shall not knowingly possess any type of burglary tools, shaved keys, screwdrivers, crow bars, spark plugs, lockout tools or any other car unlocking device." At the dispositional hearing the court adopted all the proposed terms and conditions. The court emphasized two of the conditions at the hearing telling Minor, "you're not to be in possession of any tools, burglary tools or any other inappropriate items such as that, and you're to only be on school grounds as an enrolled student."

Defense counsel advised the court Minor skateboards and Minor wanted to make sure it was okay to carry an Allen wrench to work on his skateboard. The court granted the request for an exception. The exception is noted on the minute order: "The minor shall not knowingly possess any type of burglary tools, shaved keys, screwdrivers, crow bars, spark plugs, lockout tools or any other car unlocking device. Exception: minor may have an Allen [w]rench for his skateboard."

"In determining whether a probation condition is 'sufficiently definite,' a court 'is not limited to the condition's text' but 'must also consider other sources of applicable law.' [Citation.] A provision 'is not void for vagueness " 'if its terms may be made reasonably certain by reference to other definable sources.' " ' [Citations.] 'Thus, a probation condition should not be invalidated as unconstitutionally vague " ' "if any reasonable and practical construction can be given to its language." ' " ' " (In re Oswaldo R. (2017) 11 Cal.App.5th 409, 416–417, citing People v. Hall (2017) 2 Cal.5th 494, 500–501.)

Reading the court's statement as a whole, the court itself clarified the reference to "any tools" meant "burglary tools." This is consistent with both the social study and the court's minute order. The court then considered and granted Minor's specific request for clarification by stating Minor could carry an Allen wrench. We conclude the condition is not unconstitutionally vague and does not require modification.

C

Travel Limitation

Finally, Minor requests correction of the December 7, 2017 minute order to conform with the court's oral pronouncement of judgment with respect to the probation condition regarding leaving San Diego County. We agree the minute order should be corrected.

One of the recommended conditions adopted by the court stated, "The minor shall not knowingly leave the County of San Diego without the probation officer's permission." At the conclusion of the disposition hearing, Minor's father asked the court for permission to take Minor to Tijuana, Mexico for orthodontia appointments once a month. After the father confirmed the Minor would be with a parent for these visits, the court stated, "Okay. Just let your probation officer know that that's what's going to be happening and make sure they're aware of [the] schedule." This clarification is not reflected on the court minutes.

The People contend correction is not necessary because a fair reading of the exchange merely directed Minor and his father to get permission to travel from the probation officer. We conclude there is a discrepancy between the minute order and the court's statement. The court did not direct Minor to seek permission from probation to attend the appointments. Rather, the court granted Minor permission to travel with a parent to Mexico after giving notice to the probation officer of the scheduled visits. We direct the clerk of the court to amend and correct the December 7, 2017 minute order to accurately reflect the court's oral pronouncement permitting Minor to travel to Tijuana, Mexico with a parent for dental or orthodontia treatment after prior notice to probation of the scheduled appointments.

DISPOSITION

The judgment is affirmed. However, we remand the matter and direct the clerk of the court to amend the December 7, 2017 minute order to correctly reflect the court's permission for Minor to travel to Tijuana, Mexico with a parent for purposes of

scheduled dental or orthodontia visits, after giving notice to the probation department of the purpose and schedule of the visits.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

O'ROURKE, J.