In re Jonathan D.

Filed 9/5/08 In re Jonathan D. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Robert Ambrose, Referee. Affirmed as modified.

Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

Jonathan D. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 following the finding he possessed burglary tools as alleged in a petition filed August 21, 2007 (Pen. Code, 466) and his admission that he drove a vehicle without the owners permission as alleged in a petition filed October 23, 2007 (Veh. Code, 10851, subd. (a)). He was placed home on probation in the home of his mother. He contends there was insufficient evidence to support the finding he was in possession of burglars tools and that the court erred by setting a maximum term of confinement. For reasons stated in the opinion, we affirm the order of wardship but strike the maximum term of confinement.

FACTUAL AND PROCEDURAL SUMMARY

On December 16, 2006, at approximately 10:00 p.m., Los Angeles Police Officer Kevin Scott was in the area of the 2200 block of East 99th Place in Los Angeles when he saw appellant walking. Officer Scott exited his police car, walked toward appellant and asked him how old he was. Appellant stated he was 15 years old then tossed metal objects to his side and onto the sidewalk. When Officer Scott asked appellant what he had thrown, appellant said just a spoon. Officer Scotts partner recovered the items, and one, Peoples Exhibit 2, was a handle that appeared to be a spoon that was filed down. The other item, Peoples Exhibit 1, was a Honda key that . . . appeared to be filed down, also.

Officer Scott testified that during his more than 12 years as a police officer he has made numerous arrests and investigations for burglary and grand theft auto and that a large portion of them involved the use of shaved keys. A criminal, intending to steal or break into a car, can use a shaved or altered key. Someone intending to break into a Honda vehicle can grind down a Honda key until it is very smooth, then insert it [into] the ignition or the door lock, usually on older cars, jiggle it around without any damage to the vehicle. The Officer testified it was his opinion that Peoples Exhibit 1 was specifically ground down to break into a car. There is no other purpose for this key. Peoples Exhibit 2 is like a shaved key, but because it is longer because if you cant get leverage like with this key . . . , you can get better leverage with this shaved item. Officer Scott did not know who ground down the two objects found and was not investigating a particular burglary.

DISCUSSION

I

Appellant contends there was insufficient evidence to support a finding he possessed burglars tools because there was no evidence he intended to feloniously break into any vehicle or building using the items.

Penal Code section 466 provides, Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building, railroad car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. Any of the structures mentioned in [Penal Code] Section 459 shall be deemed to be a building within the meaning of this section.

It is not necessary to prove an intent to use the tools in a particular place, or for a special purpose. [A]n intent to break into a particular [vehicle] is not necessary. . . . The offense is complete when tools or other implements are procured with intent to use them for a burglarious purpose. [Citation.] (People v. Southard (2007) 152 Cal.App.4th 1079, 1088.)

The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] [Citations.] (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) This standard applies to cases based on circumstantial evidence. [Citation.] (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

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. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citation.] [Citations.] (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587.)

Here there was sufficient evidence to justify an inference that appellant possessed the filed key and spoon handle with the intent to use them feloniously. When the police officers approached appellant, he attempted to discard the items by tossing them to the ground, suggesting a consciousness of guilt and felonious intent. Additionally, Officer Scott testified that shaved Honda keys and filed or ground items such as a spoon handle are used to break into and steal vehicles. Additionally, he testified there was no other use for the shaved Honda key other than as a burglary tool. (See People v. Southard, supra, 152 Cal.App.4th at pp. 1090-1093.)

II

Appellant contends the juvenile court erred by setting a maximum term of confinement in that he was not removed from the physical custody of his parents.[1] His contention is well taken.

Welfare and Institutions Code section 726, subdivision (c) provides, If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare and Institutions Code] section 602, the 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.

By its express terms, Welfare and Institutions Code section 726, subdivision (c) only applies if a minor is removed from the physical custody of his or her parent or guardian. Appellant was not removed from the physical custody of his parents, there was no confinement, and the courts orders setting a maximum term of confinement is erroneous. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.) The maximum term of confinement in both orders, therefore, must be stricken.[2]

DISPOSITION

The theoretical maximum period of confinement in both minute orders is stricken and in all other respects the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1] Respondent observes that while appellant challenges the maximum term of confinement of three years with reference to the petition filed October 2007, he does not challenge the maximum term of confinement of six months with reference to the petition filed August 2007. We will treat appellants argument as applicable to both petitions.

[2] Respondent also observes that while the minute orders state a maximum term of physical confinement, there are no such orders reflected in the oral proceedings. To the extent the courts minute orders do not conform to the courts oral pronouncement, the minute orders must be corrected. People v.Mitchell (2001) 26 Cal.4th 181, 185.)