In re K.S.

Filed 9/28/07 In re K.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Philip K. Mautino, Judge. Affirmed as modified.

Courtney M. Selan , 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, Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

K.S. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed a petty theft, a misdemeanor (Pen. Code,  484, subd. (a)). He contends: (1) there is insufficient evidence to sustain the finding he committed the theft; (2) leading questions were impermissibly used to support the finding; (3) the juvenile court abused its discretion when it rejected the recommendation for probation pursuant to Welfare and Institutions Code section 725, subdivision (a);[1](4) the court erred when it set a maximum period of confinement; and (5) one of the conditions of probation is unconstitutionally vague. For reasons stated in the opinion, we strike the maximum period of confinement and in all other respects affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

Evidence

On January 20, 2006, Erick M. was in his first period English class when appellant asked him, Who has an iPod? Erick responded that Patrick Y. had one. At some point during the class, Erick saw appellant unzip Patricks backpack, remove a calculator and place it on the floor. Later, while Erick was standing in front of his second period classroom, Patrick asked him where appellant was because Patrick believed appellant had taken his iPod. Erick told Patrick that he had not seen appellant with an iPod, but that he had seen appellant messing with [Patricks] backpack and take something out.

Juan R. was also in the English class that day and saw appellant unzip Patricks backpack, remove a calculator and put it on the floor. After class, Juan told Patrick that appellant had taken a calculator out of Patricks backpack. Patrick then searched his backpack and told Juan that his iPod was missing.

Patrick testified that prior to entering English class, he looked in his backpack for a pen and saw his calculator and iPod. During class, his backpack was on the floor behind him. Appellant was sitting directly behind him. After class, Juan told him that appellant had been messing around with [Patricks] backpack. Erick also told him that appellant was looking around in the backpack. Erick and Juan told him that appellant had taken Patricks calculator out of the backpack. Patrick discovered his iPod and calculator were missing from his backpack. He estimated the iPod was worth $225 and the calculator $20.

Patrick looked for appellant and found him a little over an hour later at the beginning of third period. Patrick asked appellant to show him his backpack and empty his pockets, which appellant did. Appellant said he did not steal anything. Patrick did not see any of his belongings.

Appellant testified in his own defense that he touched the backpack but did not take the iPod or calculator. He and Erick were just messing around, kicking the backpack. The calculator had been in an outside net pocket and fell out of the backpack. He picked up the calculator and put it on the table and [t]hat was it. He had no intention of keeping the calculator.

Disposition

In appellants probation report, the probation officer noted that appellant denied committing the theft, and that his mother supports the minors innocence because appellant had never been in trouble before. The probation officer also observed that appellants past academic performance leaves much room for improvement, and that appellant had left Lakewood High School and was currently attending Education Partnership High School. The probation officer considered a grant of formal probation, but recommended a grant of probation under section 725, subdivision (a), because the minor is amenable to being supervised in the community . . . . Among the probation conditions suggested were restitution, monitoring of his school performance, and 100 hours of community service.

At the disposition hearing, appellants counsel argued that appellant should be placed on probation without being adjudged a ward of the court pursuant to Welfare and Institutions Code 725. The recommendation was based on the fact that this was appellants first petition, he supposedly had excellent grades in school, and was well behaved in school and at home. The juvenile court rejected the recommendation and declared appellant a ward of the court pursuant to Welfare and Institutions Code section 602. It placed the care, custody and control of appellant under the supervision of the probation officer and permitted appellant to remain in the home of his parents. As conditions of probation, the court imposed, inter alia, restitution, 50 hours of community service, and an order that appellant not knowingly associate with anyone disapproved of by the probation officer or [his] parents.

DISCUSSION

I

Appellant contends there is insufficient evidence to sustain the petition. We disagree. 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 judgmentbelow 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.] The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible. [Citation.] The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witnesss testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.] (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

While appellant argues there are inconsistencies in the evidence and other possible interpretations of the evidence, we do not reassess the credibility of witnesses or reweigh the evidence. Viewed in the light applicable on appeal, the evidence showed that appellant asked Erick who had an iPod, was told Patrick had one, and was later observed by Erick and Juan taking a calculator from Patricks backpack. Shortly afterward, Patrick discovered his iPod and calculator were missing from his backpack, and they were never returned. Substantial evidence supports the finding that appellant took the iPod and calculator from Patricks backpack with the intent to permanently deprive him of the property. (See People v. Davis (1998) 19 Cal.4th 301, 305.)

II

Appellant contends leading questions were impermissibly used to establish a consistent story against his position. Because appellant failed to object to the questions, the claim is forfeited. (See People v. Williams (1997) 16 Cal.4th 635, 673.) In any event, our review of the record discloses that the questions were simply related to preliminary matters and directed the witnesses to the material issues. (See People v. Mason (1948) 86 Cal.App.2d 445, 456.) Further, even if we if we were to assume the questions were impermissibly leading and that appellant had not forfeited this claim, it is not reasonably probable the juvenile court would have reached a different finding if the questions had been asked in a different form. (People v. Williams, supra, 16 Cal.4th 635, 673.)

III

Appellant contends the trial court abused its discretion when it rejected the recommendation for probation pursuant to Welfare and Institutions Code section 725, subdivision (a).

A juvenile courts commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.] We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citation.] (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) Section 725, subdivision (a), permits the court to place a minor on probation for a period not to exceed six months, without adjudging the minor a ward of the court. Section 725.5 provides, In determining the judgment and order to be made in any case in which the minor is found to be a person described in [Welfare and Institutions Code] Section 602, the court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minors previous delinquent history.

We conclude that the juvenile court did not abuse its discretion in rejecting probation under section 725, subdivision (a). The theft, though classified as a misdemeanor, was not insignificant the stolen iPod itself was worth approximately $225. Further, although this incident was appellants first brush with the law, the court could reasonably conclude that a longer grant of probation than six months (the maximum permitted under section 725, subdivision (a)) was necessary to address appellants academic problems and ensure restitution to Patrick and performance of the required 50 hours of community service. Moreover, the court could also reasonably conclude that placing appellant under the care and supervision of the court was better suited to these ends than a more informal grant of probation.

IV

Appellant correctly observes the juvenile court erred in setting a maximum term of confinement. 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 order setting a maximum term of confinement is erroneous. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)

V

Appellant contends the probation condition that he not associate with anyone disapproved of by his parents or probation officer is unconstitutionally vague. Unlike the situation in In re Sheena K. (2007) 40 Cal.4th 875, 892, the juvenile court here imposed the condition that appellant not knowingly associate with anyone disapproved of by the probation officer or [his] parents. The condition included the knowledge requirement and requires no modification.

DISPOSITION

The maximum term of confinement is stricken and in all other respects the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P.J. MANELLA, J.

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[1] Welfare and Institutions Code section 725, subdivision (a) provides in pertinent part, If the court has found that the minor is a person described by Section 601 or 602, by reason of the commission of an offense other than any of the offenses set forth in Section 654.3, it may, without adjudging the minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months. . . .

All undesignated section references are to the Welfare and Institutions Code.