In re Andrew F.

Filed 11/1/07 In re Andrew F. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Andrew F. was continued as a ward under Welfare and Institutions Code section 602 after the juvenile court sustained a petition alleging he had committed the felonies of receiving stolen property and taking or driving a vehicle. (Pen. Code,  496, subd. (a); Veh. Code,  10851, subd. (a).) At the disposition hearing, he was placed in his mothers custody under the Family Preservation Unit. Appellant contends the evidence presented at the contested jurisdictional hearing was insufficient to support the true findings, and he argues that the case must be remanded so the juvenile court can expressly designate his wobbler offenses as misdemeanors or felonies. We agree with the later contention, but otherwise affirm the judgment.

FACTS

Georgia Wilcox parked her car in the driveway in front of her house after returning home from work one evening. She discovered it missing the following morning after she received a telephone call from a man who had found some of her papers and belongings scattered in his driveway. Wilcox did not know fourteen-year-old appellant and never consented to his driving or possessing her car.

Appellant was driving Wilcoxs car through Hayward a couple of days later when he almost struck a car driven by Tiffanie Tanjoco. Another boy was riding with appellant in the front passenger seat, and a girl was riding in the back. Tanjoco followed the car until it came to a stop, and she parked behind it so it could not pull away. Appellant got out and Tanjoco asked him whether he had a drivers license. Appellant said he did not and began wiping off the cars steering wheel with his shirt.

Tanjoco and the girl in appellants group began fighting. The neighbors came to Tanjocos aid and [t]he three kids that were in the car [appellant and his two friends] ran. Police later contacted appellant at his home, which was about a block away from where the car was parked.

Wilcox identified her car after it was recovered by the police. Its ignition, windows and license plate were intact, but the dashboard had been destroyed and wires were hanging down where the stereo had been ripped out of the console. Other property had been taken from the car.

Appellant testified that his friend John, whom he had known for two weeks, had loaned him the car so appellant could learn to drive with a stick shift. John had given appellant a key and told him the car belonged to his uncle. Appellant did not know Johns last name or his address, but had agreed to return the car to the Park Manor apartments the following day. Appellant denied wiping off the steering wheel when confronted by Tanjoco.

DISCUSSION

Sufficiency of the Evidence

The offense of receiving stolen property under Penal Code section 496 requires proof that (1) the property was stolen; (2) the defendant possessed the property; and (3) the defendant knew the property was stolen. (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.) The offense of taking or driving a vehicle under Vehicle Code section 10851 requires proof that the defendant (1) took or drove a vehicle; (2) without the consent of the owner; and (3) with the specific intent to permanently deprive the owner of title or possession. (People v. Green (1995) 34 Cal.App.4th 165, 180.) Appellant argues that the evidence was insufficient to support the courts true findings on these counts because there was no showing he knew the car was stolen or, consequently, had any intent to deprive Wilcox of its title or possession.

When sufficiency of the evidence is raised in a juvenile appeal, the same standards apply that govern review of criminal convictions generally. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) The appellate court must review the whole record most favorably to the judgment to determine whether there is substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) We may not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.)

It was undisputed at trial that appellant possessed a car that had been stolen from Wilcox two days earlier. A defendants possession of recently stolen property raises a strong inference that he or she knew the property was stolen and requires only slight corroboration. (People v. Anderson (1989) 210 Cal.App.3d 414, 421.) Appellants actions in wiping off the steering wheel when confronted by Tanjoco and in fleeing the scene supports the inference that he was trying to distance himself from the car and avoid detection. His claim that he borrowed the car from a friend who told him it belonged to an uncle was not plausible when he was a fourteen-year-old unlicensed driver who had known this friend for only two weeks and could not provide a last name or address. (See People v. Grant (2003) 113 Cal.App.4th 579, 596 [defendants false statement about how he obtained stolen property is sufficient to support finding he knew property was stolen].) Under the circumstances, the juvenile court was entitled to reject appellants version of events and could rationally conclude he knew the car was stolen while it was in his possession.

Appellant complains that while Tanjoco testified he wiped off the steering wheel, other evidence showed that the outer rim of the steering wheel was in fact covered in furry cloth. This circumstance does not render the evidence insufficient as a matter of law. Wilcox testified that the center portion of the steering wheel was not covered with this cloth, and the court could infer that appellant was wiping off the uncovered portions that might be susceptible to fingerprints.

Even if we disregard the steering wheel evidence, appellants flight from the scene and his unlikely story about borrowing the car supported a finding that he knew the car was stolen as required for a conviction of receiving stolen property under Penal Code section 496. And because the evidence supported a finding that appellant knew the car was stolen, the trial court could rationally infer that he intended to deprive its legal owner of its possession, as required by Vehicle Code section 10851. Reversal is not required.

Failure to Designate Wobbler Offense as Felony or Misdemeanor

Appellant contends the juvenile court erred by failing to declare his offenses to be either felonies or misdemeanors. We agree the case must be remanded to allow the court to make this determination.

Receiving stolen property under Penal Code section 496, subdivision (a) and taking or driving a vehicle under Vehicle Code section 10851, subdivision (a) are wobbler offenses punishable as either felonies or misdemeanors in the courts discretion. (Pen. Code,  17, subd. (b).) Welfare and Institutions Code section 702 provides that when a minor is found to have committed such an offense, the court shall declare the offense to be a misdemeanor or felony. The juvenile court in this case did not make such a declaration, although it set a felony-length maximum confinement time of five years four months.[1]

Welfare and Institutions Code section 702 is mandatory and requires an express declaration by the court. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207 (Manzy W.).) Its purpose is to provide a record from which the maximum term of physical confinement can be calculated and to ensure the trial court is aware of and actually exercises its discretion. (Ibid.)[2] Neither the pleadings, 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. (Id. at p. 1208.) The People concede that in this case, the juvenile court failed to comply with Welfare and Institutions Code section 702.

We turn now to whether the error can be deemed harmless. [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. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. 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. (Manzy W., supra, 14 Cal.4th at p. 1209.)

The People argue that remand is not required because in light of appellants prior juvenile adjudications (battery with serious bodily injury, accessory after the fact to a robbery, a probation violation for smoking marijuana), [i]t is all but inconceivable that a remand would result in the court declaring appellants latest offenses misdemeanors . . . . This is not the test. We can consider the courts error to be harmless only if the record establishes that notwithstanding the absence of an express declaration, the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony. (Manzy W., supra, 14 Cal.4th at p. 1210.) There is nothing in the record to affirmatively indicate the court was aware of its discretion,

DISPOSITION

The case is remanded to the juvenile court to declare whether appellants offenses are misdemeanors or felonies, as required by Welfare and Institutions Code section 702 and rules 5.780(e)(5) and 5.790(a)(1) of the California Rules of Court. In other respects, the jurisdictional and dispositional orders are affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

(A117044)

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[1]Welfare and Institutions Code section 726, subdivision (c) requires the juvenile court to set the maximum term of confinement [i]f the minor is removed from the physical custody of his or her parent . . . . Appellant was placed with his mother under the supervision of the probation department. Consequently, the maximum confinement time set by the court is of no legal effect. (In re Ali A. (2006) 139 Cal.4th 569, 573.)

[2] This requirement is also contained in the California Rules of Court. Rule 5.780(e)(5) of the California Rules of Court provides that at the jurisdictional hearing, the juvenile court must make a finding on 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. Rule 5.790(a)(1) of the California Rules of Court provides, 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 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.