In re Frank B.

Filed 10/17/07 In re Frank B. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Juvenile Court of Los Angeles County, Martha Bellinger, Judge. Affirmed as modified.

Kiana Sloan-Hillier, 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, Kenneth N. Sokoler and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

The trial court sustained a petition under Welfare and Institutions Code section 602 against minor and appellant Frank B. The court found true allegations that Frank B. committed residential burglary and grand theft. On appeal, Frank B. makes two contentions. First, there is insufficient evidence to support the true findings as to burglary and grand theft. Second, a condition of probation that he stay away from places where known users congregate is vague and overbroad. We modify the condition of probation and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On December 9, 2005, Teresa Mejia and four of her five children left their home for vacation. Mejias daughter stayed home. The day after the Mejia family left for vacation, Mejias daughter called her mother to report suspicious circumstances at the house, which led her to spend a night away from home.

The Mejia family returned home on December 11. An Xbox, video camera, and DVD player were missing, and a safe was open. Items, including a shotgun, jewelry, and silver coins, were missing from the safe. Near the house, lying next to a case for the missing video camera, Teresa Mejia found a school identification card and bus pass belonging to Josh R. The Mejia family did not recognize Josh R. The value of the items taken was about $7,000.

Soon after returning home, Mejias son visited Raymond Q., a neighbor. Josh R. was at Raymond Q.s house. Teresa Mejia then met with Raymond Q.s mother. Raymond Q. gave Mejia the names of others who may or may not have been involved in taking the items from her home. Mejia got back several items taken from her home. Mejia called the police and gave them the names Raymond Q. gave to her.

Upon receiving that information, Deputy Sheriff German Perez went to Frank B.s home. Frank B. opened the door. Before Deputy Sheriff Perez could say anything, Frank B. said he was just about to turn himself in, and he asked, How did you know it was us? After Deputy Sheriff Perez read Frank B.s Miranda^[1]rights to him, he asked Frank B. why would he do something like that. Frank B. said we were bored.

II. Procedural background.

On February 15, 2006, the People filed a petition under Welfare and Institutions Code section 602. The petition alleged one count of first degree residential burglary (Pen. Code, 459) and one count of grand theft of personal property (Pen. Code, 487, subd. (a)).^[2] The court, sitting as trier of fact, sustained the petition on both counts.

On July 21, 2006, the court declared Frank B. to be a ward of the court, and placed him home on probation. The court declared count 1 for burglary to be a felony and set the maximum period of confinement at six years. The court did not impose additional time on count 2. Among the conditions of probation imposed, Frank B. was ordered to stay away from places where known users congregate.

DISCUSSION

I. Sufficiency of the evidence.

Frank B. contends that there is insufficient evidence to support sustaining the petition for burglary and for theft. We disagree.

Under a sufficiency of the evidence standard of review, we review the entire record in the light most favorable to the judgment to decide  whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We draw all reasonable inferences in support of the judgment. [Citation.] (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930; see also People v. Stanley (1995) 10 Cal.4th 764, 792-793.)

Burglary is committed when a person who enters any house, room, [or] apartment . . . with intent to commit grand or petit larceny or any felony[.] (Pen. Code, 459; see also People v. Montoya (1994) 7 Cal.4th 1027, 1041.) Grand theft is the taking of property exceeding a value of $400. (Pen. Code, 487, subd. (a).) With respect to burglary, the requisite intent is rarely demonstrated by direct proof, and as a result, [it] may be inferred from facts and circumstances. [Citation.] As a result, evidence such as theft of property from a dwelling may create a reasonable inference that there was intent to commit theft at the time of entry. [Citation.] (In re Leanna W. (2004) 120 Cal.App.4th 735, 741.)

Here, Frank B. argues there is no evidence that he entered the Mejia residence and that he entered the residence with an intent to steal. Rather, there is a mere suspicion he committed burglary and theft, but a mere suspicion cannot form a sufficient basis for an inference of fact. (In re Leanna W., supra, 120 Cal.App.4th at p. 741.) For example, in In re Leanna W., the minor entered her grandmothers home without permission and had a party at which alcohol was consumed, property was damaged, and items were stolen. Because there was no evidence of what the minor did at the partyi.e., that she drank the alcohol or damaged the propertythe Court of Appeal held that there was insufficient evidence the minor committed burglary or theft.

Frank B. argues that In re Leanna W. is similar because nothing connects him to the Mejia burglary. He makes much of the fact that Deputy Sheriff Perez never asked him specifically about the Mejia burglary and that Frank B. never mentioned the Mejia burglary specifically. On direct examination, Deputy Sheriff Perez testified:

Q. And after he told you that he was coming down to turn himself in, and after you advised him of your Miranda, did you ever tell him what you were there for?

A. No.

Q. And after advising him of his Miranda rights, did you ask him any questions regarding the burglary of the residence?

A. Yes.

Q. And specifically what did you ask him?

A. Why would you do something like that? [] . . . []

Q. . . . And in response to that, what did he say?

A. We were bored.

Q. And, now, did you ever discuss the burglary directly of the Mejias residence with him?

A. No.

Q. Did you ever tell him what burglary you were talking about, or did he refer to you?

A. He mainly is the one who referred.

Q. Did he tell you that they had burglarized the Mejias residence?

A. He did not.

Q. Did he tell you where the location of the residence . . . that was burglarized?

A. No.

Q. And so how did you know he was referring to the Mejias residence, the burglary of the Mejia residence?

A. Based on the statements by the victim, and the other subject. On cross-examination, Deputy Sheriff Perez said he assumed that Frank B. was discussing the burglary at the Mejias residence. In fact, Frank B. never mentioned Mejia by name and never said he went inside the home and never admitted involvement in the Mejia burglary specifically.

Notwithstanding the lack of such specific admissions, there is evidence from which Frank B.s entry into the house with the requisite intent to steal property can reasonably be inferred. Teresa Mejia testified that items were missing from her home. Her neighbors son, Raymond Q., confessed that he was involved in taking those items. Raymond Q. gave back some of the stolen property. Raymond Q. also named Frank B. as being involved. When Deputy Sheriff Perez went to Frank B.s home, Frank B. immediately said that he had been about to turn himself in and he asked how Perez found out. Perez asked Frank B.,  Why would you do something like that?  Frank B. said they were bored. From this evidence, the court could reasonably infer that Frank B. entered the Mejias home with a felonious intent.

II. The conditions of probation.

Condition of probation 21 ordered Frank B. to stay away from places where known users congregate. Frank B. contends that the condition must be modified to include a requirement that he stay away from places he knows drug users congregate.

Recently, our California Supreme Court held that a probation condition forbidding a juvenile defendant from associating with anyone disapproved of by probation was unconstitutionally vague, since it did not contain an express requirement that the defendant know the identity of those individuals of whom probation disapproved. (In re Sheena K. (2007) 40 Cal.4th 875, 891-892.) To pass constitutional muster, such a provision must state that the minor has knowledge of the person disapproved of by the authorities. (Id. at p. 892.) In holding that there must be a knowledge requirement, the court cited with approval People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090. Acuna involved a gang injunction prohibiting defendants from, among other things, associating with any other known VST . . . or VSL . . . member. (Id. at p. 1117.) Defendants argued that the prohibition was vague because it might be applied in a circumstance in which a defendant associated with someone known to the police, but not to the defendant, to be a gang member. The court said, We agree that in such a hypothetical case, the City would have to establish a defendants own knowledge of his associates gang membership to meet its burden of proving conduct in violation of the injunction. Far from being a classic instance of constitutional vagueness, however, we think the element of knowledge is fairly implied in the decree. To the extent that it might not be, we are confident that the trial court will . . . impose such a limiting construction . . . by inserting a knowledge requirement. . . . With that minor emendation, the text of [the] provision [ ] passes scrutiny under the vagueness doctrine. (Id. at pp. 1117-1118.)

Here, the condition orders Frank B. to stay away from places where known users congregate. Although under Acuna, a knowledge requirement on the part of Frank B. may be fairly implied in the condition of probation we will nevertheless modify the probation condition to expressly include a knowledge requirement.

DISPOSITION

Condition of probation 21 is modified to order Frank B. to stay away from places where persons whom you know to use illegal drugs or substances congregate. The judgment is affirmed as modified.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1]Miranda v. Arizona (1966) 384 U.S. 436.

^[2] The petition also alleged in count 1 that the burglary violated Penal Code section 462, subdivision (a).