Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. FJ39362, Patricia Nieto, Referee.
Laini Millar Melnick, 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, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Carlos G. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed a first degree residential burglary. (Pen. Code, § 459.) He was placed home on probation. He contends there was insufficient evidence to sustain the adjudication and, in the alternative, that the burglary must be deemed to be second degree. For reasons stated in the opinion, we affirm the order of wardship.
FACTUAL AND PROCEDURAL SUMMARY
On July 19, 2006, at approximately 4:00 p.m., Andrea Romero returned to her home on East 49th Street in Los Angeles, which earlier that day had been locked, and noticed the back door was open and that a trash can had been moved. The screen on the door’s window also had been broken. Inside her home, she discovered her purse, which had been on the sofa, two cell phones, a camera, a walkie-talkie and a CD player were missing.
Ms. Romero heard the sound of the chain link gate in front of her house and saw appellant running from her property. Shortly thereafter, a man came to her home with her purse and her identification and called out her name. Ms. Romero noticed that some of her identification was missing and went to a restaurant approximately one block away and looked in the trash where her purse had been discarded. While she found nothing in the trash, she saw appellant and contacted the police. Appellant was thereafter arrested.
On cross-examination, Ms. Romero acknowledged she had told a private investigator that she first saw appellant when he was outside of her house on the sidewalk running past her house.
DISCUSSION
I
Appellant contends there was insufficient evidence to sustain the finding he committed the robbery. “ ‘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 defendant’s guilt beyond a reasonable doubt. “ ‘If the circumstances reasonably justify the trier of fact’s 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.)
Substantial evidence supports the finding that appellant burglarized Ms. Romero’s home. Ms. Romero testified that immediately after she discovered her house had been burglarized she heard the noise of a gate and saw appellant running from her property. While there may have been some confusion regarding her testimony as to whether she heard the noise of a door or a gate, Ms. Romero repeatedly testified that she saw appellant running from her property. Shortly thereafter, appellant was seen and arrested approximately one block from Ms. Romero’s home near a restaurant where her purse had been discarded. Taken together, this evidence was sufficient to support the trial court’s conclusion that appellant was the burglar.
II
Appellant contends the burglary must be deemed to be second degree because the juvenile court failed to specify the degree of the offense or to state it in the minute order. Appellant asserts that because burglary is an offense divided into two degrees pursuant to Penal Code section 460, the court was required to specify the degree as required by Penal Code section 1192.
Penal Code section 1192 provides, “Upon a plea of guilty, or upon conviction by the court without a jury, of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree. Upon the failure of the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”
The juvenile petition alleged “the crime of FIRST DEGREE RESIDENTIAL BURGLARY, in violation of PENAL CODE 459, a Felony, was committed by [appellant]. . . .” At the commencement of the adjudication, the juvenile court stated the matter was before it “for an adjudication on the petition . . . a violation of Penal Code section 459, first-degree residential burglary, as a felony.” Upon completion of the evidence, the court found, “that the petition, count 1, is found to be true beyond a reasonable doubt. The offense is a felony.”
Penal Code section 459 provides in pertinent part, “Every person who enters any house, room, apartment, tenement . . . or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not. . . .”
In People v. Mendoza (2000) 23 Cal.4th 896, the California Supreme Court held that where the crime proven could only have been first degree murder, Penal Code section 1157, containing language nearly identical to that of Penal Code section 1192, did not apply. Similarly, in People v. Sanchez (2002) 102 Cal.App.4th 1266, Division Six of this District held that “[w]hen the language of the charge can only be first degree murder, an accusatory pleading does not charge a crime ‘distinguished or divided into degrees’ and, therefore section 1192 does not apply.” (Id. at pp. 1269-1270.) In the present case, the language of the charge, “first degree residential burglary” could only be burglary in the first degree and the petition did not allege an offense that was distinguished or divided into degrees.
Even if we were to assume that the instant petition alleged an offense divided into degrees, we would find no error. Pursuant to California Rules of Court, rule 5.780, subdivision (e)(5) the juvenile court must make findings on “the degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult.” “[T]he requirement of a finding as to the degree of the crime can be satisfied by using a descriptive label as well as by a numerical degree.” (In re Andrew I. (1991) 230 Cal.App.3d 572, 581.) “In juvenile proceedings, the statutes and rule are met if, at the end of the jurisdiction hearing, or during the disposition hearing, the court makes a finding as to the degree of the crime either by numerical designation or a sufficiently clear description of the offense. [Citation.]” (In re Andrew I., supra, 230 Cal.App.3d 572, 581.)
Both the degree and the factual predicate for the finding of first degree burglary, namely, that this was a “residential burglary,” were expressly set forth in the charging document. When the court determined “that the petition, count 1, is found to be true beyond a reasonable doubt,” it necessarily incorporated that factual finding. (See People v. Price (1991) 1 Cal.4th 324, 387.) As the evidence demonstrated, this was a residential burglary, and a burglary of a residence may only be first degree.
While the court in In re Andrew I., supra, 230 Cal.App.3d 572, 581, declared that the fact that the petition alleged the minor burglarized “a dwelling house” could not be used to support a finding that he committed burglary in the first degree, it cited no case for this proposition.
In In re Andrew I., supra, 230 Cal.App.3d 572, 582-583, the Court of Appeal expressly disavowed the proposition earlier adopted in its prior decision in In re Dorothy B. (1986) 182 Cal.App.3d 509, that the juvenile court had discretion to reduce the degree of an offense when the evidence supports only the higher degree. On this record, there was no evidence appellant burglarized anything but a residence. Accordingly, the juvenile court could not, as a matter of law, have found the offense to be anything but first degree burglary.
In In re Kenneth H. (1983) 33 Cal.3d 616, where the issue was whether the juvenile court erred in failing to declare a burglary a felony or misdemeanor, our Supreme Court observed that the burglary was second degree for two independent reasons: first, the entry which was the basis of the charge had been during the daytime; second, as the juvenile court had failed to find the degree of burglary, the burglary was second degree as a matter of law. In that case, however, the petition only alleged a “burglary.” Similarly, in In re Eric J. (1979) 25 Cal.3d 522, 529 our Supreme Court commented that because the juvenile court failed to find the degree of the offense, it was deemed to be of the second degree, citing Penal Code section 1157. In that case, however, the burglary was of a skating rink and involved the theft of skates, not an offense which would be first-degree burglary as a matter of law.
DISPOSITION
The order of wardship is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
Penal Code section 460 provides, “(a) Every burglary of an inhabited dwelling house . . . or the inhabited portion of any other building, is burglary of the first degree. [¶] (b) All other kinds of burglary are of the second degree.”