Andrew I., In re

• Decision Date: 23 May 1991
• Docket Number: No. G009406,G009406
• Citation: 281 Cal.Rptr. 570,230 Cal.App.3d 572
• Court: California Court of Appeals
• Parties: In re ANDREW I., A Minor. The PEOPLE, Plaintiff and Respondent, v. ANDREW I., Defendant and Appellant.

Page 570

281 Cal.Rptr. 570

230 Cal.App.3d 572

In re ANDREW I., A Minor.

The PEOPLE, Plaintiff and Respondent, v. ANDREW I., Defendant and Appellant.

No. G009406.

Court of Appeal, Fourth District, Division 3, California.

May 23, 1991.

Certified for Partial Publication ^*.

Review Denied Aug. 15, 1990.

[230 Cal.App.3d 575] Rita Morales, under appointment by the Court of Appeal, for defendant and appellant.

Appellate Defenders and Patrick DuNah, as amicus curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., Rhonda L. Cartwright, and Pamela A. Ratner, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

MOORE, Associate Justice.

A petition was filed in the Los Angeles County Superior Court seeking to declare Andrew I. a ward of the court alleging he committed a burglary on September 18, 1989. (Welf. & Inst.Code, § 602; Pen.Code, § 459.) The court sustained the petition. The case was then transferred to Orange County where Andrew lived. (Welf. & Inst.Code, § 750.) At the disposition hearing, the court found Andrew had committed a residential burglary, committed him to the California Youth Authority for six years and ordered him to pay restitution to the victims. The probation department was directed to make a recommendation to the Youth Authority as to the amount of restitution owed.

Andrew appeals, contending (1) the evidence fails to support the finding he committed a burglary; (2) the trial court failed to specifically find the degree of the offense or whether the burglary was a felony or misdemeanor; and (3) it was an abuse of discretion to commit him to the California Youth Authority. Amicus curiae joins in the first two arguments and further contends the lower court erred by leaving the determination of the amount of restitution to the probation department. We affirm but remand for further proceedings.

FACTS

Andrew's juvenile record dates back to July of 1986, when he was 13 years old. He has run away from home numerous times. Prior to September 1989, he had misdemeanor convictions for theft, burglary and escape from juvenile hall all arising out of separate incidents.

On September 18, Andrew and his friend Scott H. were staying with Tom D. During the jurisdiction hearing, Scott's mother testified that on that date she was living with "[m]y two daughters, son, and my boyfriend." On cross-examination, the following occurred: "Q: When you state that your son lived in your home, what was his name? [p] A: Scott.... [p] [Defense counsel]: No further questions. [p] The witness: He was not living in the home. I did not state he was living at home. [p] Q: By [defense counsel]: It is just my recollection that the district attorney asked you who was living in the home and you mentioned you had a son living in the home. [p] A: Anthony.... [p] Q: There is another son? [p] A: Yes. I have two sons and two daughters. [p] Q: So the son living in the home is Anthony? [p] A: Anthony.... [p] Q: How long has Scott not been living in your home? [p] A: Uh--approximately about a week, two weeks before. [p] Q: Were his--was his clothing still in the home? [p] A: He had just left and never returned one day. [p] Q: Was his clothing in the home? [p] A: A few articles, yes. [p] Q: What did you mean, 'a few articles'? [p] A: He had some clothes there, but not all of his clothes, no."

Deputy Fatone, who interviewed Andrew after his arrest, testified Andrew told him "there was another friend that was staying ... at [Tom's] apartment and his name was Scott.... Scott had been having some trouble with his parents, his mother, primarily, and he had been accused of taking some jewelry, which Scott insisted that he did not, and so Scott decided to move out. He already been [sic] staying with [Tom], but his property, his clothing was at [his mother's] residence."

At Scott's request, Tom gave him a ride to his mother's residence to retrieve some of his clothes. Andrew went along with them. En route, the three agreed to steal some valuables which belonged to Scott's mother and her boyfriend. Before reaching the residence, they stopped in a park and inhaled typewriter correction fluid, commonly known as "white-out."

When they arrived at the house, Anthony, Scott's brother, was there watching television. Without disturbing him, they took several knives, guns and some stereo equipment.

Andrew was later arrested. After his arrest, Andrew admitted his participation in the crime.

DISCUSSION

I. Sufficiency of the Evidence

Both Andrew and amicus curiae contend the evidence fails to establish he illegally entered the victims' home. Andrew also argues his ingestion of "white out" precludes a finding he had the specific intent required to commit a burglary.

Where the juvenile court has sustained a petition, an attack on the sufficiency of the evidence to support that ruling is governed by the substantial evidence rule. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809, 103 Cal.Rptr. 425, 500 P.2d 1.) "The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The court must view the entire record in the light most favorable to the judgment (order) to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the minor guilty beyond a reasonable doubt." (In re Oscar R. (1984) 161 Cal.App.3d 770, 773, 207 Cal.Rptr. 789.)

"Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Evid.Code, § 411.) "If the trier of fact has believed the testimony ... this court cannot substitute its evaluation of the credibility of the witness unless there is either a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions. [Citations.]" (People v. Swanson (1962) 204 Cal.App.2d 169, 173, 22 Cal.Rptr. 178.)

Andrew and amicus curiae argue there was no illegal entry of the victims' residence because Scott lived there and invited Andrew and Tom inside knowing they intended to commit theft. Since Penal Code section 459 "protects against intruders into indoor areas, not persons committing crimes in their own homes," one cannot be convicted of burglary when he or she has an unconditional possessory right to enter the property. (People v. Gauze (1975) 15 Cal.3d 709, 714, 716, 125 Cal.Rptr. 773, 542 P.2d 1365.) Nonetheless, it is not necessary that a defendant's entry constitute a trespass to support a burglary conviction. "The law after Gauze is that one may be convicted of burglary even if he [or she] enters with consent, provided he [or she] does not have an unconditional possessory right to enter." (People v. Pendleton (1979) 25 Cal.3d 371, 382, 158 Cal.Rptr. 343, 599 P.2d 649.) Here, Andrew clearly had no possessory interest in or right to enter the victims' residence. The mere fact Scott invited him inside is not, alone, sufficient to preclude a burglary conviction.

Citing People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478, 253 Cal.Rptr. 316 and People v. Thomas (1977) 74 Cal.App.3d 320, 141 Cal.Rptr. 340, Andrew and amicus curiae argue Scott's possessory interest in the residence and his admission of Andrew and Tom knowing they intended to commit a theft shows there was no illegal entry. In Granillo, the defendant entered an apartment leased by an undercover police officer posing as a fence with the intention of selling stolen property. The Court of Appeal held no burglary occurred since the officer had an unconditional possessory interest in the premises and invited the defendant to enter with full knowledge he intended to commit a felony. (People v. Superior Court (Granillo), supra, 205 Cal.App.3d at pp. 1484-1485, 253 Cal.Rptr. 316.) In Thomas, the defendant claimed the alleged victim, a television store owner, was a fence and asked him to break in and remove certain designated items. The trial court instructed the jury the defendant was guilty of burglary if he broke into the store to either commit a theft or receive stolen property. On appeal, the conviction was reversed because "[c]learly an entry into the possessor's premises for the purpose of carrying out the possessor's instructions is not burglary." (People v. Thomas, supra, 74 Cal.App.3d at p. 323, 141 Cal.Rptr. 340.)

In both cases, no issue existed with respect to the possessor's control of the premises. Here, the evidence established Scott did not have an unconditional possessory interest in his mother's residence. Scott had left home one or two weeks before the crime occurred. In fact, Scott's alleged original purpose in returning to the residence was to pick up clothes he had left behind.

Neither did Scott acquire a possessory interest simply because his mother had an obligation to support him. "The parental obligation to provide for necessaries does not imply a possessory right in the parental residence. The obligation to provide for necessaries need not be fulfilled by providing such items in kind, [citation]. Financial support is all that is required by law. No possessory right in a parental residence is implied by this duty of financial support." (In re Richard M. (1988) 205 Cal.App.3d 7, 15, 252 Cal.Rptr. 36.) ¹

Furthermore, even if Scott had implied permission to enter his mother's home, Andrew would still be guilty of burglary. "[O]ne who enters a room or building with intent to commit larceny is guilty of burglary even though express or implied permission to enter has been given to him personally or as a member of the public." (People v. Deptula (1962) 58 Cal.2d 225, 228, 23 Cal.Rptr. 366, 373 P.2d 430; see also People v. Garrow (1955) 130 Cal.App.2d...