In re Adrian C.

 

 

 

 

 

 

 

 

 

 

Filed 6/10/13 
In re Adrian C. CA4/3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re ADRIAN C., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,         Plaintiff and Respondent,               v.   ADRIAN C.,         Defendant and Appellant.	G047620            (Super. Ct. No. DL042766)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Jane Shade, Temporary Judge. 
(Pursuant to Cal. Const., art. VI, § 21.)  Affirmed.

                        James R. Bostwick, Jr.,
under appointment by the Court of Appeal, for Defendant and Appellant.

                        No appearance for
Respondent.

                                                *                      *                      *

                        Over
a span of approximately four months, the People filed nine separate petitions
alleging that defendant Adrian C. was a minor subject to being adjudged a ward of
the juvenile court under section 602 of the Welfare and Institutions Code.  After consolidating the eighth and ninth
petitions for trial, and conducting a trial thereon, the court sustained all
allegations of both petitions.  On the
eighth petition the court found minor had committed a href="http://www.fearnotlaw.com/">first degree residential burglary (Pen.
Code, §§ 459, 460, subd. (a); count 1),href="#_ftn1" name="_ftnref1" title="">^[1]
and had obstructed a peace officer (§ 148, subd. (a)(1); count 2).  As to the enhancement allegation attached to
count 1 of the eighth petition, the court found a person not an accomplice was
present during the commission of the residential burglary (§ 667.5, subd.
(c)(21)).  On the ninth petition the
court found minor had committed petty theft (§§ 484, subd. (a), 488; count 1),
and had obstructed a peace officer (§ 148, subd. (a)(1); count 2). 

                        Following trial on
petitions eight and nine, and pursuant to a disposition agreement, minor
admitted he committed the offenses alleged in petitions one through seven as
follows:  Petition one, vandalism under
$400 (§ 594, subds. (a), (b)(2)(A)), and possession of graffiti tools (§ 594.2,
subd. (a)); petition two, vandalism under $400 (§ 594, subds. (a),
(b)(2)(A)); petition three, unlawfully causing fire to the property of another
(§ 452, subd (d)); petition four, battery (§ 242); petition five, receiving
stolen property (§ 496, subd. (a), reduced to a misdemeanor pursuant to § 17,
subd. (b)); and petition seven, possession of a weapon on school grounds (§ 526.10,
subd. (a)(1)).  The People dismissed the
sixth petition and counts 2 and 3 of the fifth petition. 

                        The court declared minor
a ward of the court under Welfare and Institutions Code section 602, found the
residential burglary was a felony (all other offenses were misdemeanors), and
the maximum term of confinement for all offenses was eight years eight
months.  Minor was placed on supervised
probation on condition he serve 180 days in juvenile hall, with credit for 30
days previously served, together with many additional probation
conditions. 

                        Minor timely filed a
notice of appeal, and we appointed counsel to represent him.  Counsel did not argue against minor, but
advised the court he was unable to find an issue to argue on minor’s behalf.  Minor was given 30 days to file written
argument in his own behalf.  That period
has passed, and we have not received any communication from him.  We have examined the entire record but have
not found an arguable issue.  (>People v. Wende (1979) 25 Cal.3d
436.)  Accordingly, we affirm the
judgment.

 

FACTS

 

                        We recite the facts in
the light most favorable to the judgment. 
(People v. Houston (2012) 54
Cal.4th 1186, 1215.)

                        Minor offered the
following factual basis for his admissions. 
“In Orange County, I did the following: 
On or about 5/10/12, I maliciously and unlawfully defaced with graffiti
a light pole belonging to Southern California Edison, and I unlawfully
possessed an aerosol paint container with the intent to commit vandalism.  On or about 3/20/12, I maliciously and
unlawfully defaced with graffiti a fence belonging to McDonalds.  On or about 5/16/12, I unlawfully and
recklessly set fire to and burned the property of Bolsa Chica Wetlands.  On or about 6/17/12, I willfully and
unlawfully used force and violence upon the person of Noah C.  On or about 9/4/12, I unlawfully possessed a
watch that I knew had been stolen.  On or
about 9/12/12, I unlawfully brought and possessed a dirk or dagger upon the
grounds of Marina High School.” 

                        At trial on the eighth
and ninth petitions, Aubri Griffis testified she lived at a residential address
in Huntington Beach with her three children. 
Shortly after 8:00 a.m. on Thursday, September 13, 2012, Griffis had
returned home after dropping her children off at school.href="#_ftn2" name="_ftnref2" title="">^[2]  As she pulled into her driveway she saw minor
coming out of her backyard.  Minor was
wearing a backpack, but Griffis did not see what was inside.  Minor explained he had been looking for Griffis’s
14-year-old son.  That evening, Griffis
noticed that a skateboard belonging to her five-year-old son was missing from
their backyard.  She had last seen it the
prior evening, September 12. 

                        On Monday, September 17,
Griffis noticed that a bicycle belonging to her 14-year-old son was missing
from their backyard, and she called the police to report the missing bike.  She had last seen the bicycle on Friday,
September 14.  The next day, September
18, Huntington Beach Police Officer Victoria Shroyer, who at that time was
assigned as a juvenile officer, saw minor sitting at a picnic bench in a nearby
park.  Officer Shroyer drove her patrol
car over the curb directly toward the picnic bench.  Minor ran. 
Shroyer yelled at minor to stop, and minor came back to talk with the
officer.  Shroyer had learned earlier in
the day that minor needed to be questioned about a couple of thefts.  The officer told minor she was going to
arrest him.  Minor stood up and told
Shroyer “he had weed on him and that he wasn’t going to go to jail.”  Shroyer responded that she had a job to do,
at which point minor “took off running.” 
Shroyer told minor to come back, but he ran to a block wall.  Shroyer told minor she was not going to chase
him, but minor jumped the wall.  Shroyer
and two other officers did an area search for minor but were not able to locate
him. 

                        Meanwhile, Griffis had
asked John McKinnon, a neighbor who lived across the street, to keep a lookout
on her home.  She told McKinnon “the kid
was homeless and he had been to the house before.”  Then, on October 2, Griffis left the house at
7:45 a.m., to take her younger son to school.  When she returned, McKinnon approached her
and told her that a “black male youth had entered her backyard through the
north gate.”  McKinnon had already called
the police and was still on the phone with the police department.  Griffis “bolted out of her car and ran into
her house” through the front door.  She
“went straight to the back door into the backyard.”  Seeing nobody in the backyard, Griffis
reentered the house, and had “barely made it into the back door when [she] saw
[minor] running from [her] hallway out through [her] living room to the front
door.”  She yelled for minor to stop, but
he continued out the front door.  He was
wearing a black backpack that appeared to be full. 

                        Police officers
responded to McKinnon’s phone call. 
Officer Huss spotted minor running on school grounds.  Minor “hopped a gate” into the rear yard of a
residence and led the officers on a chase through the neighborhood.  He was again seen leaving a driveway heading
toward the street.  Huss yelled at minor
to stop.  Minor reversed course and
headed back into the rear yards of the adjacent homes.  Eventually the officers succeeded in
detaining minor.  He was not wearing a
backpack, although when he was first observed on the school grounds he was
carrying a “backpack type item.” 

                        Minor was advised of his
Miranda rights at the police station and was questioned by a detective.  The detective asked minor whether he had ever
taken anything from the Griffis residence. 
Minor said “on one occasion he took a skateboard from the backyard area,
and on a different occasion . . . he took a bicycle from the same backyard
area.” 

 

DISCUSSION

 

                        To assist the court in
its independent review of the record, minor’s counsel has suggested we consider
five potentially arguable issues.  (See >Anders v. California (1967) 386 U.S.
738.)  We address each potential issue in
turn.

 

The
Court Did Not Abuse its Discretion in Consolidating Petitions Eight and Nine

                        The court granted the
People’s motion to consolidate the eighth and ninth petitions for trial.  Minor’s counsel suggests we consider whether
the court’s ruling constituted an abuse of discretion.  It did not.

                        “An accusatory pleading
may charge two or more different offenses connected together in their commission,
or two or more different offenses of the same class of crimes.  [Citation.] 
Offenses falling within this description, but charged in separate
pleadings, may be consolidated for trial in order to promote judicial
efficiency [citation], and a trial court’s rulings on joinder are reviewed for
abuse of discretion [citation].”  (>People v. Koontz (2002) 27 Cal.4th 1041,
1074.)  Here, the petitions alleged
offenses of the same class and crimes connected together in their
commission.  The eighth petition charged
minor with burglary of an inhabited dwelling “with the intent to commit
larceny.”  The ninth petition charged
minor with petty theft.  Thus, as
charged, the first count of each petition required proof that defendant
intended to steal and did steal.  “[W]e
may reasonably conclude these offenses fall within the same class, in that they
share the common characteristic of the wrongful taking of another’s
property.”  (Id. at p. 1075.)  In
addition, both petitions alleged the obstruction of a police officer.  While obstruction of a police officer may not
be of the same class as the theft-related offenses, the officer obstructions in
this case were manifestly connected together in their commission.  Minor twice ran from the officers seeking to
interrogate him regarding a petty theft and a burglary of the >same victims, perpetrated at the >same location, some two weeks
apart.  Finally, the evidence in each
petition would have been cross-admissible under Evidence Code section 1101,
subdivision (b) to show a common plan, motive, and intent.  “Cross-admissibility of evidence is sufficient . . . to deny
severance,” and thus to permit consolidation. 
(People v. Ochoa (2001) 26
Cal.4th 398, 423, abrogated on another point as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)

                        “[T]he
trial court correctly recognized the law’s preference for joinder and properly
exercised its discretion” in consolidating the eighth and ninth petitions.  (People
v. Manriquez (2005) 37 Cal.4th 547, 575.)

> 

>Substantial Evidence Supports the Finding that Minor Committed
Burglary

                        Minor’s
counsel suggests we review the sufficiency of the evidence to support the
burglary finding.  “Every person who
enters any house . . . . with intent to commit grand or petit larceny . . . is
guilty of burglary.”  (§ 459.)  Griffis testified that minor was in her home
without permission and ran out of the house with a backpack that appeared to be
full.  The backpack was never found,
having been abandoned by minor during the lengthy chase.  An inference of minor’s intent to steal is
easily drawn from minor’s admitted recent theft of property from the Griffis
backyard.  This evidence was sufficient
to support the finding of burglary, i.e., entry of the Griffis home with intent
to steal.

 

>Substantial Evidence Supports the Finding that Minor Obstructed a
Police Officer

                        Minor’s
counsel also suggests we review the sufficiency of the evidence to support the
two violations of section 148, subdivision (a)(1).  “Every person who willfully resists, delays,
or obstructs any . . . peace officer . . . in the discharge or attempt to
discharge any duty of his or her office or employment” is guilty of a
misdemeanor.”  (Ibid.)  Officers Shroyer and
Huss testified that on separate occasions each observed minor fleeing and
attempting to escape after being contacted by uniformed officers and being told
to stop.  “The actions of [minor]
(running and hiding) caused a delay in the performance of [the officers’]
duty,” and constituted sufficient evidence of a violation of section 148,
subdivision (a).  (People v. Allen (1980) 109 Cal.App.3d 981, 987.)

 

The Evidence Was Sufficient to
Establish Petty Theft

                        Minor’s
counsel suggests we determine whether the evidence was sufficient to establish
petty theft.  It clearly was.  Minor admitted to the detective that he took
the skateboard and the bicycle from the backyard of the Griffis residence.  Although he also claimed during the police
interview to have given the items to a third party for the purpose of having
them returned to their owner, the trier of fact was entitled to disbelieve
minor’s self serving statement, not made under oath.

 

>The Evidence Was Sufficient to Show the Presence of a
Non-accomplice During the Burglary

                        Finally,
minor’s counsel suggests we determine whether the evidence was sufficient to
find true the enhancement allegation under section 667.5, subdivision (c)(21),
viz, that a person other than an accomplice was present during the commission
of a residential burglary.  Counsel notes
that Griffis did not enter her residence until after minor’s initial entry. 
Apparently counsel is suggesting we determine whether it is arguable
that Griffis was not present “during the burglary” because the burglary was
complete upon minor’s initial entry. 
This argument has been rejected by the courts in other contexts.  For example, in People v. Montoya (1994) 7 Cal.4th 1027, our Supreme Court
considered whether defendant could be subjected to aider and abettor liability
where the evidence suggested he did not form the intent to assist the principal
with a burglary until after the direct perpetrator had initially entered the
residence.  The Montoya court was thus called upon to decide the “question of the >duration of the offense of burglary for
the purpose of establishing liability as an aider and abettor.”  (Id.
at p. 1039.)  The Court concluded
that “a person who, with the requisite knowledge and intent, aids the
perpetrator, may be found liable on a theory of aiding and abetting if he or
she formed the intent to commit, encourage, or facilitate the commission of a
burglary prior to the time the
perpetrator finally departed from the structure.”  (Id.
at pp. 1050-1051, italics added.)  In
reaching this result regarding the duration of a burglary, the court reasoned,
“‘“Burglary laws are based primarily upon a recognition of the dangers to
personal safety created by the usual burglary situation — the danger that the
intruder will harm the occupants in attempting to perpetrate the intended crime
or to escape and the danger that the occupants will in anger or panic react
violently to the invasion, thereby inviting more violence.”’”  (Id.
at p. 1042.)  Further, “It is manifest
that the increased danger to the personal safety of the occupant, and the
increased risk of loss or damage to his or her property contemplated by the
statutory proscription, do not terminate at the moment entry is accomplished,
but rather continue while the perpetrator remains inside the structure.  Certainly,
an absent occupant could return at any
moment and be faced with the danger created by the prior entry.”  (Id.
at p. 1043, italics added.)

                        In
People v. Alvarado (2001) 87
Cal.App.4th 178, the Court of Appeal reached an even broader conclusion when it
interpreted section 667.61, subdivision (e)(2), which prescribes enhanced
punishment for a rape committed “‘during the commission of a burglary.’”  (Alvarado,
at p. 183.)  There, the Court of Appeal
held that, for purposes of section 667.61, subdivision (e)(2), the statutory
phrase “‘during the commission of a burglary’ refers to that period of time
between the burglar’s initial entry with the requisite intent and the burglar’s
escape to a place of temporary safety.” 
(Alvarado, at p. 191.)

                        Here,
the increased risk to Griffis caused by minor’s unlawful presence in her home
was no less when she unexpectedly returned home and confronted minor, than it
would have been had she had been present at the very moment of his entry.  The evidence was sufficient to establish the
enhancement under section 667.5, subdivision (c)(21).

 

We Have Not Found an Arguable
Issue

                        Our
review of the entire record has not disclosed the existence of any arguable
issue.

 

DISPOSITION

 

                        The
judgment is affirmed.

 

 

                                                                                   

                                                                                    IKOLA,
J.

 

WE CONCUR:

 

 

 

BEDSWORTH, ACTING P. J.

 

 

 

FYBEL, J.