Charles G., In re

• Decision Date: 17 July 1979
• Citation: 156 Cal.Rptr. 832,95 Cal.App.3d 62
• Parties: In re CHARLES G., a Person Coming Under the Juvenile Court Law. Albert M. LEDDY, District Attorney, Plaintiff and Respondent, v. CHARLES G., Defendant and Appellant. Civ. 4248.
• Court: California Court of Appeals Court of Appeals

Page 832

156 Cal.Rptr. 832

95 Cal.App.3d 62

In re CHARLES G., a Person Coming Under the Juvenile Court Law.

Albert M. LEDDY, District Attorney, Plaintiff and Respondent, v. CHARLES G., Defendant and Appellant.

Civ. 4248.

Court of Appeal, Fifth District, California.

July 17, 1979.

Hearing Denied Sept. 12, 1979.

Barry F. Nix, Fresno, for defendant and appellant

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller, Karen S. Russo and Thomas D. McCrackin, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

HOPPER, Associate Justice.

The juvenile court found true a supplemental petition that alleged appellant (hereinafter Charles) came within Welfare and Institutions Code section 602 in that he had committed burglary of an automobile.

A summary of the facts discloses: On the morning of March 31, 1978, campus supervisor Pat Hopkins and school security agent William Patterson were patrolling the south high school campus for students who were not in class. Approaching a parking area, the men happened upon two students, Charles and one Elroy Miller. Miller was standing two to three feet from the passenger door of a pickup truck which belonged to Robert Lathrop. When Patterson asked Miller to explain his presence, Charles' head raised up, and he was observed on the front seat inside of the truck. When Patterson asked Charles what he was doing inside the truck, Charles exited and ran a short distance before complying with Patterson's order to halt. After Charles was advised of Miranda rights, he steadfastly denied that he had been inside the truck and explained that he had run because he had known that Patterson was after him.

Later, after Miller and Charles had been sent to the office, Patterson contacted the truck's owner Lathrop. When they examined the pickup, they found no signs of forced entry. On the ground nearby they did find three tools which had previously been inside the glove compartment. Lathrop testified that he had driven the pickup to school that morning and parked it in the parking lot. He added that to the best of his knowledge the vehicle was then locked, in accordance with his normal practice.

Charles appeals contending (1) that the substantial evidence rule violates federal due process and (2) that there was no substantial evidence to sustain a finding that the vehicle allegedly burglarized was locked. We consider each of those contentions in order.

In People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321 (applied to juvenile cases in In re Roderick P. (1972) 7 Cal.3d 801, 809-810, 103 Cal.Rptr. 425, 500 P.2d 1) our Supreme Court established the substantial evidence rule as the test on appeal. As an intermediate appellate court, we are bound by the decisions of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937). Consequently, we reject the contention that the substantial evidence rule violates federal due process (cf. conc. opn. of Elkington, J. in People v. Blum (1973) 35 Cal.App.3d 515, 110 Cal.Rptr. 833).

An essential element of burglary of an automobile set forth in Penal Code section 459 is that the vehicle must be locked. In the instant case the victim testified on direct examination as follows:

"Q. When you left the truck, was it locked?

"A. To the best of my knowledge, yes.

"Q. Is it normal practice for you to lock your vehicle?

"A. Yes, it is."

Cross-examination of the victim elicited the following:

"Q. Mr. Lathrop, you don't remember exactly locking the door on that particular day, do you?

"A. Well, let me put it this way. I lock it every day. To the best of my knowledge, it was locked. Now, did I personally, you know

"Q. You don't remember? Did you talk to Mr. Patterson about this after he came and told you your car had been broken into?

"A. I walked up between classes, yes.

"Q. Isn't it true that you told him that you were not sure whether or not your car was locked?

"A. I might have told him that, yes; at the time I might have, yes.

"Q. Why would you have told him that at that time? Don't you lock it?

"A. Well, because he probably asked me like you, 'Did you lock it?' (P) Well, To the best of my knowledge, yes, but, you know, maybe I didn't, but I make it a habit of locking my car because I realize that there are a lot of thefts, and I don't leave anything open." (Emphasis added.)

Subsequently Patterson testified that on the date of the offense the victim told him that he (the victim) was not sure whether or not he had locked the vehicle.

Essentially, Charles asserts that testimony that one normally locks his doors is insufficient to support a finding that the doors were in fact locked, particularly in light of the absence of signs of forced entry and because no burglar tools were found in the possession of Charles. We disagree.

Evidence Code section 1105 provides:

"Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom."

The victim's testimony as to habit was clearly admissible under Evidence Code section 1105. ¹

From that circumstantial evidence of habit, and reasonable inferences therefrom, the judge could have properly concluded beyond a reasonable doubt that the truck was locked and remained locked until Charles entered. There was substantial evidence to establish this necessary element of the corpus. We are unaware of any statutory or judicial requirement of corroboration of habit testimony. There is no evidence in the record, one way or the other, as to either (1) the extent of examination of the vehicle and by whom for signs of forced entry or (2) the extent of a search, if any, of Charles and, if there be one, by whom and whether or not burglar tools were on or in his possession. ² In reviewing the conclusions of the trier of fact, we must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Vann, (1974)12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824; People v. Redmond,supra, 71 Cal.2d 745, 756, 79 Cal.Rptr. 529, 457 P.2d 321.) 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. (People v. Bynum (1971) 4 Cal.3d 589, 599, 94 Cal.Rptr. 241, 483 P.2d 1193, overruled on different grounds in People v. Williams (1976) 16 Cal.3d 663, 669, 128 Cal.Rptr. 888, 547 P.2d 1000.) We must make all reasonable inferences to support the findings of the juvenile court and we must review the record in the light most favorable to the juvenile court order. (In re Robert P. (1976)61 Cal.App.3d 310, 315, 132 Cal.Rptr. 5.) Viewing the evidence in accordance with the rules governing us, we conclude that there was substantial evidence. ³ We make no inferences whatsoever from the lack of evidence of forced entry or lack of burglar tools. Nor do we engage in a weighing process in the manner of a trial court. Additionally, we note that neither forced entry in the usual sense of the word nor use of burglar tools are elements of automobile burglary. The manner in which Lathrop testified was indicative of someone who was trying to be truthful. The strength or weakness of a witness often depends on that witness' tone of voice and demeanor. We cannot say that Lathrop did not inspire confidence in the trial court and convince that trial court. The use of language such as "to the best of (his) knowledge" is far from being conjectural. Lathrop's statement is an honest answer by a conscientious witness. In fact, a more positive answer might in many situations be suspect. There was such evidence as reasonably inspires confidence and is of solid value, i. e., substantial evidence, if believed, to establish the locked condition of the vehicle. The trial judge was at liberty to believe or disbelieve the circumstantial evidence and to weigh the habit evidence along with all other evidence, if any, in the case. In California the corpus delicti may be established entirely by circumstantial evidence. (1 Witkin, Cal.Crimes (1963) Elements of Crime, § 91, pp. 87-88; 21 Cal.Jur.3d, Criminal Law, § 2529, p. 304.) Resolution of credibility and of any inconsistencies was for the trial judge. We are not a reseeing court. A reasonable trier of fact could have found that the prosecution sustained its burden of proving the allegations of the petition true beyond a reasonable doubt. (People v. Bassett (1968) 69 Cal.2d 122, 138-139, 70 Cal.Rptr. 193, 443 P.2d 777.)

The judgment is affirmed.

GEO. A. BROWN, P. J., concurs.

FRANSON, Associate Justice, dissenting.

I respectfully dissent. In my view, habit evidence Standing alone does not constitute substantial evidence to support a criminal conviction. It is too tenuous; no reasonable trier of fact would find a defendant guilty beyond all reasonable doubt solely on the basis of such evidence.

The key element of the crime of auto burglary is that the doors of the vehicle be locked at the time of the entry. (Pen.Code, § 459.) This means that absent direct evidence that the doors were locked there must be some evidence of a forced entry into the vehicle to satisfy the prosecution's burden of proof. (People v. Toomes (1957) 148 Cal.App.2d 465, 306 P.2d 953; People v. Massie (1966) 241 Cal.App.2d 812, 51 Cal.Rptr. 18; cf. People v. Malcolm (1975) 47 Cal.App.3d 217, 120 Cal.Rptr. 667.) In the present case, the only evidence that the vehicle's doors were locked is the owner's testimony that, although he could not recall whether he had locked the doors on this particular occasion, he made "a habit of locking (his) car" and that it was his "normal practice"...