In re James B.

• Decision Date: 12 June 2003
• Docket Number: No. E031974.,E031974.
• Citation: 135 Cal.Rptr.2d 457,109 Cal.App.4th 862
• Court: California Court of Appeals Court of Appeals
• Parties: In re JAMES B, a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. James B, Defendant and Appellant.

135 Cal.Rptr.2d 457 109 Cal.App.4th 862 In re JAMES B, a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent,
v.
James B, Defendant and Appellant. No. E031974. Court of Appeal, Fourth District, Division 2. June 12, 2003. Review Denied Sept. 10, 2003.^*

[135 Cal.Rptr.2d 459]

[109 Cal.App.4th 865]

Debra R. Torres-Reyes, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

[109 Cal.App.4th 866]

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela A. Ratner Sobeck, Supervising Deputy Attorney General, David Delgado-Rucci and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P.J.

On May 1, 2002, James B. (minor), a 12 year old, was charged in a Welfare and Institutions Code section 602 second amended petition with assault with a deadly weapon (Pen.Code, § 245 subd. (a)(1); count 1), petty theft (Pen.Code, § 484, subd. (a); count 2), and second degree burglary (Pen.Code, § 459; count 3). At the jurisdictional hearing on May 22, 2002, counts 1 and 2 were dismissed and count 3 was found to be true.

On June 24, 2002, minor was declared a ward of the court and placed on probation in the custody of his grandmother. Further, the court found that the maximum period for physical confinement would be one year. A Penal Code section 17, subdivision (b) motion to reduce the conviction to a misdemeanor was granted.

Minor now appeals, contending that: (1) he did not violate Penal Code section 459 because the evidence showed the vehicle was not locked for the purpose of automobile burglary, (2) he did not know right from wrong, and (3) that the court erred in determining jurisdiction.

FACTS

On April 30, 2002, Daniel Goehring (Goehring) parked his Chrysler PT Cruiser in the parking lot of Arrowhead Credit Union. Goehring locked the doors of the vehicle and opened the windows for ventilation. Although he usually opens the windows a couple of inches, the driver's window was open about one inch and the passenger window about three inches.

135 Cal.Rptr.2d 460

Mr. Ruben Morales was in the parking lot at an ATM machine. Mr. Morales saw minor close the door of Goehring's vehicle and walk away. He called the police after he saw minor return to the vehicle and open the door.

Deputy Sheriff Cory Emon (Emon) responded and arrested minor at the scene. The passenger window of Goehring's vehicle was down three to four inches, but Emon could not reach his hand through the opening. Minor told Emon, however, that he had reached through the window opening, unlocked

109 Cal.App.4th 867

the door, and had taken a cell phone from the interior of the car. Minor also told Emon that he did not want to lie anymore. Emon asked minor where the cell phone was and minor took the deputy to a bush where minor retrieved the phone.

Emon asked minor whether he knew the difference between doing what is right and what is wrong. Minor said, "A little bit." When asked for an example of something that is right to do, minor said, "Being nice." In response to a request for an example of something that was wrong to do, minor answered, "Run from the police." Minor also told Emon that his parents punish him for doing something they have taught him is wrong.

LOCKED VEHICLE

Minor first contends that there is insufficient evidence to convict him of burglary, arguing that the vehicle was not locked within the meaning of Penal Code section 459. Because a window of the vehicle was partially open, minor claims that the vehicle should not be considered locked and that a burglary of an unlocked vehicle could not occur without a show of force. We disagree.

Section 459 of the Penal Code defines burglary to include entering a vehicle "when the doors are locked ... with intent to commit grand or petit larceny...." The element of "locked doors" has occasionally been a subject of appellate cases. (People v. Allen (2001) 86 Cal.App.4th 909, 103 Cal.Rptr.2d 626 [gaining access to a vehicle's trunk by opening an unlocked passenger door and lifting a trunk latch was not considered entering a locked vehicle]; In re Young K. (1996) 49 Cal.App.4th 861, 57 Cal.Rptr.2d 12 [entering headlamp housings of a vehicle to steal the headlamps is not a burglary, even if the vehicle is locked]; In re Lamont R. (1988) 200 Cal. App.3d 244, 245 Cal.Rptr. 870 [chains wrapped and hooked across a trailer door were not sufficient to consider the vehicle locked because they were simply unhooked without using force or breaking a seal]; People v. Woods (1980) 112 Cal.App.3d 226, 169 Cal.Rptr. 179 [reaching into a vehicle with a window open five and onehalf inches and removing items was not a burglary even though the doors were locked]; People v. Malcolm (1975) 47 Cal. App.3d 217, 120 Cal.Rptr. 667 [entering a vehicle by opening a wind wing with a broken latch, reaching in and unlocking doors, was considered entering a locked vehicle]; People v. Blalock (1971) 20 Cal. App.3d 1078, 98 Cal.Rptr. 231 [forcible entry into a locked trunk was sufficient for burglary whether or not the passenger doors were locked]; People v. Massie (1966) 241 Cal.App.2d 812, 51 Cal.Rptr. 18 [a semitrailer was considered locked when the doors were secured by a metal clip that

109 Cal.App.4th 868

required breaking a seal in order to open the door]; People v. Toomes (1957) 148 Cal.App.2d 465, 306 P.2d 953 [entering a locked trunk for the purpose of theft, when all other doors were also locked, satisfied the elements of burglary]; People v. Burns (1952) 114 Cal.App.2d 566, 250 P.2d 619 [even though window was broken, without testimony or other evidence that

135 Cal.Rptr.2d 461

the vehicle had been locked, there cannot be a finding of burglary].)

The common law element of breaking has never been an essential element of statutory burglary in California. (People v. Allen, supra, 86 Cal.App.4th at p. 914, 103 Cal.Rptr.2d 626.) Burglary from a vehicle is the lone exception, requiring that the doors of a vehicle be locked. (Pen.Code, § 459.) Yet, "neither forced entry in the usual sense of the word nor use of burglar tools are elements of automobile burglary." (In re Charles G. (1979) 95 Cal.App.3d 62, 67, 156 Cal.Rptr. 832.) The key element of auto burglary is that the doors be locked. In In re Charles G., the court considered the vehicle locked based upon testimony that the owner's habit was to lock his car, even though there were no signs of forced entry. (Id. at pp. 65, 66-68, 156 Cal.Rptr. 832.) In Burns, on the other hand, there was evidence of forced entry (broken glass), but no evidence that the car had been locked; therefore there was no burglary. (People v. Burns, supra, 114 Cal.App.2d at p. 570, 250 P.2d 619.)

The requirement of locking as an element of vehicular burglary has been interpreted to mean "that where a defendant 'used no pressure,' `broke no seal,' and `disengaged no mechanism that could reasonably be called a lock,' he is not guilty of auto burglary. [Citations.]" (In re Young K, supra, 49 Cal.App.4th at p. 864, 57 Cal.Rptr.2d 12.) Therefore, "because auto burglary can be committed only by entering a locked vehicle without the owner's consent, it is only accomplished by altering the vehicle's physical condition; at worst, by smashing a window, at best, by illegally unlocking it. These...