In re Randell B.

Filed 8/21/07 In re Randell B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Following a contested jurisdictional hearing, the juvenile court found that Randell B., a minor, committed first degree burglary (Pen. Code, 459, 460). On October 21, 2005, the juvenile court declared the minor a ward of the court and committed him to the Sacramento County Boys Ranch (SCBR) for

90 days, but stayed the commitment to January 9, 2006, at which time the minor was to be present before the court to determine whether it should continue the stay.

On November 4, 2005, the minor filed a notice of appeal.

On January 9, 2006, the minor failed to appear, the court considered the stay to have expired, issued a bench warrant for the minors arrest, and ordered that the minor be delivered forthwith to SCBR upon his arrest.

The minor contends (1) the evidence is insufficient to support the finding he committed burglary, (2) the trial court failed to make required findings for his removal from home,

(3) the trial court abused its discretion when it imposed a gang term as part of his probation, and (4) the trial court failed to award him the proper amount of custody credit.

We reject the minors first contention, but agree with him as

to the second. Consequently, we shall remand for a new disposition hearing, at which time the court can address the minors third and fourth claims if necessary.

FACTS

On May 25, 2005, at approximately 6:15 p.m., Ira Ross returned from work to her two-bedroom residence to find some of her living room furniture had been moved and her bedroom had been ransacked. A gun and several pieces of jewelry were missing. One open and three unopened checkbook boxes were on the floor of her bedroom under mounds of paper. The gun and the checkbook boxes had been hidden in an armoire by Rosss computer.

Latent fingerprints lifted from three of the checkbook boxes matched those of the minor.

Ross testified that she lived alone, that she did not know the minor and that she had never given him permission to be in her home. Rosss sister had lived with Ross two months prior to the burglary and her nephew, James, was permitted to visit, but only when the sister was present. Ross permitted James to use her computer, but he did not know that the gun and checkbooks were hidden in the armoire.

The minor did not testify.

DISCUSSION

I

The minor contends the evidence is insufficient to support the juvenile courts sustaining of the burglary charge.

We disagree.

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Green (1980) 27 Cal.3d 1, 55; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.)

Relying primarily on Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Borg) and Birt v. Superior Court (1973) 34 Cal.App.3d 934 (Birt), the minor argues that the evidence is insufficient because (1) there simply was no evidence presented (as opposed

to speculation) at the contested jurisdictional hearing to support an inference that the defendant touched the object during the commission of the crime, (2) [t]here was no evidence placing [him] at the scene of the crime on the day of the burglary, and (3) fingerprints by themselves are insufficient to sustain the charge.

According to the minor, the ruling and facts of Mikes v.Borg are directly on point. We disagree. In Borg, the victim was found dead in the basement of his fix-it shop and

the shop had been burglarized. Near the victims body were three chrome posts, which came from a disassembled turnstile unit purchased by the victim at a hardware stores going out of business sale approximately four months prior to his death.

One of the posts was determined to be the murder weapon. The defendants fingerprints, along with those of others, were found on the three chrome posts, and this was the only place in the shop where his fingerprints were found. Aside from defendants fingerprints, no other evidence linked him to the crime. (Mikes v. Borg, supra, 947 F.2d at pp. 356-357.)

In reversing the defendants murder conviction, the reviewing court observed: The prosecutions case rested exclusively on the theory that [the defendants] fingerprints were impressed on these objects during the commission of the crime. We have held that fingerprint evidence alone may under certain circumstances support a conviction. [Citation.]

However, in fingerprint-only cases in which the prosecutions theory is based on the premise that the defendant handled certain objects while committing the crime in question, the record must contain sufficient evidence from which the trier of fact could reasonably infer that the fingerprints were in fact impressed at that time and not at some earlier date. (Mikes v. Borg, supra, 947 F.2d at pp. 356-357, italics in Borg.)

The Borg court noted that fingerprints could last indefinitely, that the turnstile was a type ordinarily used in public places such as grocery or other commercial stores, that the posts had presumably been used for their ordinary purpose prior to their being offered for sale by the hardware store and were accessible to the general public, and concluded that, [t]he evidence in the record is wholly insufficient to preclude the reasonable possibility that [the defendants] fingerprints were placed on the posts during the period prior to [the victims] acquisition of them. (Mikes v. Borg, supra, 947 F.2d at pp. 358-359.)

We have no quarrel with the reasoning of Borg, its legal principle, or its conclusion. Borg is simply factually distinguishable from the instant case. Turnstiles are meant to be used by the public and, thus, are commonly found in public places, where they will be touched by the general public. Ones personal checkbook, on the other hand, is just that--personal. Checkbooks are not meant to be, and usually are not, accessible to the general public. Indeed, because of their potential for

forgery and the resulting loss at ones hands, checkbooks are kept where they are not accessible to the public, which, of course, is why Ross hid them.

The minor also cites several other cases wherein the defendants fingerprints found on objects at the scene of the crime were insufficient to sustain a conviction. These cases, like Borg, are distinguishable.

In People v. Trevino (1985) 39 Cal.3d 667, the defendants fingerprint was on a dresser drawer in the murder victims bedroom. However, since the defendant had been a guest in the victims home prior to the killing, and because the age of the fingerprint could not be determined, the trier of fact could only speculate as to how and when the print was made. (Id. at pp. 696-697.) Here, the minor had not been a guest in Rosss home, he was unknown to Ross, and there was no reasonably demonstrable showing that he had access to the checkbooks, facts which eliminated the possibility his print had been left prior to the burglary.

In People v. Johnson (1984) 158 Cal.App.3d 850 (Johnson) and People v. Jenkins (1979) 91 Cal.App.3d 579 (Jenkins), the issue was whether the defendants fingerprints on bottles found in residences where the defendants were or had been present was insufficient to show the defendants constructive possession of the contents of the bottles. The issue here is presence,

i.e., whether the fingerprints on the checkbook boxes is sufficient to show defendant was in Rosss home. Consequently,

neither Johnson nor Jenkins is on point.

Finally, in Birt v. Superior Court, supra, 34 Cal.App.3d 934, Rodney McNutt returned to his home at night and found his lights on and a rental van parked on his grass. Upon entering his home, McNutt discovered some of his possessions were missing and others were by the kitchen door. Inside the van, McNutt found two men who ran from the van and escaped. A sheriffs deputy examining the van found a cigarette lighter on the front passenger seat. On the lighter was a fingerprint of the female defendant. (Id. at pp. 936-937.)

In finding the evidence insufficient to hold the defendant to answer for the burglary of McNutts home, the reviewing court observed that the lighter was a readily moveable object, the lighter was not shown to have been taken from McNutts home, there was no evidence of the defendants fingerprints in the home or on any of the stolen items, and the van was a rental van available to the public. (Birt v. Superior Court, supra,

34 Cal.App.3d at p. 938.) The court concluded: At most, the presence of [the defendants] fingerprint on the lighter found on the front seat showed that, at some unknown time and place, she had been inside the van; but there was no direct or circumstantial evidence to indicate when and where that had

been. Only by guesswork, speculation, or conjecture can it be

inferred that [the defendant] was inside the van, or in the area at the time of the McNutt burglary. (Ibid.)

Again, the difference is that a lighter is an object generally carried on a person in public places and readily subject to being lost or touched by others. In contrast, the minors prints were found on objects which, although readily moveable, were not generally accessible to the public and were kept hidden in a home. Birt is not on point.

In sum, the evidence substantially supports the juvenile courts sustaining of the burglary against the minor, and none of the cases relied upon by the minor are on point.

II

The minor contends that remand for further proceedings is necessary because the juvenile court failed to make the findings required by Welfare and Institutions Code section 726, subdivision (a), when the juvenile court orders a minor removed from his home. We agree.

Welfare and Institutions Code section 726, subdivision (a) mandates that no ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts: (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor; (2) That the minor has been tried on probation while in custody and has failed to reform; (3) That

the welfare of the minor requires that custody be taken from the minors parent or guardian. (See also, Cal. Rules of Court, rule 5.790(d), formerly rule 1493(c).)

Here, on October 21, 2005, the juvenile court ordered the minor committed to the SCBR, but ordered the commitment stayed for 90 days. The court explained to the minor that while he would not be immediately removed from his home, he would be placed on 30 days of electronic monitoring and was to come back in 90 days to turn yourself into the boys ranch. However, if the court received a good report from the probation department regarding the minor doing real well for the 90 days, the court would vacate the commitment. To make sure the minor understood that the court considered him presently in SCBR, the court said, What you need to understand as of today is you are in the boys ranch and [y]ouve got to work your way out.

Since the courts order committing the minor to SCBR was essentially an order removing him from the physical custody of his mother, the court was required to make one of the removal findings required by Welfare and Institutions Code section 726, subdivision (a). Where the court fails to make the required finding, remand for that purpose is appropriate. (In re Kenneth H. (1983) 33 Cal.3d 616, 620-621; In re Robert H. (2002) 96 Cal.App.4th 1317, 1331; In re Jose H. (2000) 77 Cal.App.4th 1090, 1100.) Here, the court not only failed to make one of the findings required by Welfare and Institutions Code section 726, subdivision (a), but it expressly stated it will defer making any ruling or finding at this time and consider that in 90 days. Consequently, remand is required.

DISPOSITION

The order committing the minor to the Sacramento County Boys Ranch is vacated, and the matter is remanded to the juvenile court for further dispositional proceedings.

BLEASE , Acting P.J.

We concur:

BUTZ , J.

CANTIL-SAKAUYE , J.

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