In re Brendan B.
Filed 7/11/13 In re Brendan B. CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
In re
BRENDAN B., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
BRENDAN B.,
Defendant and Appellant.
A135980
(Mendocino
County
Super. Ct.
No. SCUKJDSQ 10-16152)
Appellant
Brendan B. was first declared a ward of the juvenile
court pursuant to Welfare and Institutions Code section 602 in April
2011 and was placed on probation with various conditions, including that he not
possess or consume marijuana. Since that
time, appellant has violated the terms and conditions of his probation on
numerous occasions. The instant appeal
stems from the seventh subsequent juvenile petition filed in April 2012,
alleging that then 16-year-old appellant violated conditions of his probation
(count one), committed burglary (Pen.
Code, § 459/460, subd. (b) [count two]), possessed stolen property (Pen.
Code, § 496, subd. (a) [count three]), and resisted a probation officer in
the course of his duties (Pen. Code, § 148, subd. (a)(1) [count
four]). Appellant admitted to resisting
arrest (count four). On May 14, 2012,
following a contested jurisdictional
hearing, the juvenile court found the remaining three counts true. On appeal, appellant contends there was
insufficient evidence to support the finding that he committed burglary. We affirm.
A. Petitioner’s
Case
1. The Burglary
About 3:00 a.m. on March 26,
2012,
Mary Valley, the manager of Moon Lady, a clothing boutique located at 100 South
Main Street in Willits, was summoned to the store. When she arrived, “the police were there and
glass [was] everywhere.†A display
window had been broken, and the broken glass landed “[o]n all the shelves, in
the clothes, on the floor.†Missing
items from the store included an expensive hemp jacket, pants, jeans, hats,
t-shirts, and Metal Mulisha
name="_ftnref2" title="">[2]
dirt bike clothing. Valley testified
that the hemp jacket cost $300 and “[a]ll the kids in town want [one].†Willits Police Officer Jeffrey Andrade
responded to the scene; it was obvious that a burglary had taken place, the
suspect, however was unknown.
2. The Investigation
On April 3, Officer Andrade,
along with Sergeant Anderson, responded to a residence on Redwood Avenue to
investigate a report that one of the residents, appellant’s sister, had stolen
a computer. Because the sister was on
probation, Officer Andrade searched her bedroom and the common areas of the
house. Upon learning that appellant was
also on probation, the officers searched his bedroom as well.
On the
dresser in appellant’s bedroom Sergeant Anderson found a black computer bag
containing a jacket. The jacket matched
a photograph in a catalogue of the stolen clothing given to Officer Andrade by
the owner of Moon Lady. Metal Mulisha
shirts with attached price tags were also in the bag. Two or three other shirts that had been worn
did not have any tags. Two hats were
found on the floor. The hats did not
have any tags, but one had a cardboard strip on the inside, which is something
typically found in new hats. On the bed,
Officer Andrade found a crowbar that had been wrapped in other clothing
unrelated to the burglary. The jeans
stolen from Moon Lady were not found in appellant’s room.
When Officer Andrade returned the clothing to Moon Lady,
the manager and the owner both identified the jacket. At that time, Officer Andrade noticed a piece
of glass on the jacket. The store
manager said that the jacket had been worn, explaining that it “didn’t smell
fresh and clean†but “smelled like cigarettes.â€
She also testified that all of the returned clothes had glass slivers on
them.
3. Appellant’s
Arrest
Mendocino County Deputy
Probation Officer Shaun Vipond, appellant’s probation officer in the spring of
2012, testified that appellant failed to check in with the officer on the last
Tuesday of March. When Officer Vipond
learned that appellant’s home had been searched and he was wanted in connection
with a burglary, the probation officer arranged for a pick-up order for his
arrest. Officer Vipond visited
appellant’s house twice in early April, but each time appellant was not
there. Officer Vipond spoke to
appellant’s mother on four occasions, each time she reported that she did not
know where appellant was.
Officer Vipond spotted
appellant on April 23 and a foot chase ensued.
As appellant tried to flee, he dropped the backpack he was
carrying. Eventually Officer Vipond was
able to apprehend appellant. Initially,
appellant denied that the backpack belonged to him. Officer Vipond, however, saw appellant
wearing the backpack and he picked it up and searched its contents. The backpack contained clothing, a glass
cutter, a hood with a mesh face mask capable of concealing the wearer’s face, a
bag of marijuana, a marijuana smoking pipe, two cigarette lighters, and one EBT
card belonging to appellant’s sister.
Appellant told Officer Vipond that he had found the
marijuana “under a bridge.†The glass
cutter, appellant said, belonged to his twin brother T.B. And, appellant said the clothing belonged to
his father.
Appellant testified that he was
at home all evening on March 26. He
stated that he and his brother T.B. had discovered the clothing in a trash bag
in an alley in Willits and they took it home.
According to appellant, T.B. hid the bag and its contents in his
(T.B.’s) closet. Appellant denied that
the clothing was in his room when he left for school on April 3, the day police
searched his room. Appellant explained
that the crowbar was his father’s, which he said he “just threw†on the
floor. The backpack he had when he was
arrested belonged to one of T.B.’s friends.
Appellant had no recollection of the glass cutter being in the backpack
when he received it. Appellant explained that he
used the hood and mask to scare his friends.
Appellant further explained that he decided to pack his father’s clothes
in the backpack so that he could disguise himself and avoid apprehension by his
parole officer. Appellant also cut his
hair.
Although he denied stealing the clothing, appellant said
he decided to flee rather than to talk to police because he “was dirty for
smoking marijuana.†Appellant stated
that he did not know how the
claimed that his brother frequently entered his room. Appellant denied that he wanted to wear the
stolen clothing, explaining that he did not wear Metal Mulisha because it is
“kind of white supremacist†featuring a “Gestapo helmet†on the skulls. Originally, appellant and his brother thought
about selling the clothing, but then appellant decided that his brother could
have it all.
Appellant admitted to trying on the hemp jacket, but
denied wearing the jacket. Appellant
said the jacket was too small for him.
Appellant denied that he was photographed wearing the jacket. He further denied knowing a girl named
T.H. However, when confronted with the
fact that he was friends with T.H. on Facebook, appellant admitted that he knew
the girl. Appellant further admitted
that the girl took a picture of him wearing the jacket while he was asleep on
the school bus. Appellant said he put on
the jacket because he was cold. The girl
posted this picture of appellant on Facebook because he was “drooling or
something and she thought it would be funny.â€
Appellant’s parents testified that appellant was home on
the evening of March 26 and the morning of March 27. The hood found in appellant’s bag was part of
a Halloween costume belonging to one of the parents. Appellant’s father owned a glass cutter that
he kept in the garage.
Appellant’s father testified that it would be difficult to
crawl through the windows in appellant’s room because of the configuration of
the furniture and the presence of shrubbery outside the room. Every night prior to going to bed,
appellant’s father locked the three doors to the house and checked on
appellant. Neither appellant nor his
brother had keys to the house. Both
parents were light sleepers and would usually hear any noises in the
house. Also, the family’s dogs would
bark if there was any type of disturbance.
Appellant’s parents never saw the clothing stolen from
Moon Lady in the house. According to
appellant’s father, neither appellant nor his brother would wear Metal Mulisha
clothing, explaining that his sons were pretty particular about what they wore
and the stolen clothing was too “ostentatious for their taste.â€
Appellant
contends there was insufficient evidence
to support the juvenile court’s true finding that he committed burglary because
there was no evidence that he entered the Moon Lady store.
An
appellant assumes a “heavy burden†when he challenges the sufficiency of the
evidence to support the findings. (In
re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.) In addressing such a challenge, we “consider
the evidence in a light most favorable to the judgment and presume the
existence of every fact the trier could reasonably deduce from the evidence in
support of the judgment. The test is
whether substantial evidence supports the decision, not whether the evidence
proves guilt beyond a reasonable doubt.â€
(People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People
v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26
Cal.3d 557, 576.) Our sole function is
to determine if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People
v. Moon (2005) 37 Cal.4th 1, 22; People v. Bolin (1998) 18 Cal.4th
297, 331; Taylor v. Stainer
(1994) 31 F.3d 907, 908-909.) The
standard of review is the same in cases where the prosecution relies primarily
on circumstantial evidence. (People
v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10
Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People
v. Bean (1988) 46 Cal.3d 919, 932.)
The California Supreme Court has held, “Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ †(People v. Bolin, supra, 18 Cal.4th at
p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; see also People
v. Hughes (2002) 27 Cal.4th 287, 370.) The Court of Appeal has held: “The
trier of fact, not the appellate court, must be convinced of the minor’s guilt,
and if the circumstances and reasonable inferences justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant reversal of
the judgment. [Citation.]†(In re James B. (2003) 109 Cal.App.4th
862, 872; see also People v. Bean, supra, 46 Cal.3d at pp. 932-933.)
Penal
Code section 459 provides, “Every person who enters any . . . shop,
warehouse, store, . . . or other building . . . with
intent to commit grand or petit larceny or any felony is guilty of
burglary.†“Possession of recently
stolen property is so incriminating that to warrant conviction there need only
be, in addition to possession, slight
corroboration in the form of statements or conduct of the defendant tending to
show his guilt.†(People v. McFarland
(1962) 58 Cal.2d 748, 754, italics added.)
Circumstances that have been held sufficient corroborative evidence when
coupled with possession include (a) flight; (b) false statements showing
consciousness of guilt; (c) false statements as to how the property came into
defendant’s possession; (d) assuming a false name and an inability to find the
person from whom defendant claimed to have received the property; (e) sale of
the property under a false name and at an inadequate price; (f) sale of the
property with marks of identity removed and failure to account for its possession;
(g) giving false testimony; and (h) an effort to throw away the stolen
property. (People v. Russell
(1932) 120 Cal.App. 622, 625, see also People v. Gregor (1956) 141
Cal.App.2d 711, 716-717 [burglary tools; renting apartment under false name].)
Here, there was sufficient
an explanation the court could reasonably deem false—appellant and his brother
“found†the clothing in an alley, appellant decided he did not want anything to
do with the clothing, so appellant’s brother stored the clothing in his
(appellant’s brother’s) room, yet on the day of the search the clothing
inexplicably was found in appellant’s room.
Although appellant initially denied wearing the clothing, there was a
photograph of appellant wearing the hemp jacket.
There is also evidence of
flight. After learning that the police
searched his room, appellant went into hiding for about 20 days, taking efforts
to disguise his appearance to avoid apprehension. Also, once spotted by his probation officer,
appellant gave chase and attempted to discard the backpack.
The trial court was not required to
believe appellant’s explanation that he was on the run for most of April because
he had violated the conditions of his probation by smoking marijuana. (See Evid. Code, § 312, subd. (b);
1206.) Nor was the court required to
believe appellant’s evasive explanation for his possession of the crow bar and
the glass cutter, either or both of these items could have provided the means
to enter the store through the glass window.
(See People v. Gregor, supra,
141 Cal.App.2d at p. 716.)
In sum, we conclude: “ ‘In a
prosecution for burglary the evidence on which a defendant is convicted may be
purely circumstantial and if substantial, as is in the present case, is
sufficient to support judgment of guilty.’
[Citations.]†(
367, 373.)
The
judgment is affirmed.
_________________________
REARDON,
J.
We concur:
_________________________
RUVOLO, P.J.
_________________________
HUMES, J.
All of the relevant events
occurred in 2012.
name="_ftn2" title="">[2] Metal Mulisha clothing features skulls
on “[e]verything.â€
