People v. F.M. (In re F.M.)
| Decision Date | 13 August 2019 |
| Docket Number | F076992 |
| Parties | In re F.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. F.M., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION*
APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.
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In January 2017, former minor F.M., then 16 years old, was working as a cashier at a fast food restaurant. D.T., also then a minor and a friend of F.M.'s, entered the restaurant in disguise, demanded the money from F.M.'s cash register, and departed with $181.99 in cash.
A juvenile petition was subsequently filed pursuant to section 602 of the Welfare and Institutions Code alleging F.M. committed conspiracy to commit petty theft (Pen. Code, §§ 182, subd. (a)(1), 484, subd. (a))1 (count 1) and petty theft (§ 484, subd. (a)) (count 2). The People later amended the petition to allege F.M. committed conspiracy to commit attempted robbery (§§ 182, subd. (a)(1), 664/211) (count 1), attempted second degree robbery (§§ 664/211) (count 2), conspiracy to commit commercial burglary (§§ 182, subd. (a)(1), 459) (count 3), commercial burglary (§ 459) (count 4), conspiracy to commit theft (§§ 182, subd. (a)(1), 484) (count 5), and petty theft (§ 484, subd. (a)) (count 6).
F.M. denied the allegations and the matter proceeded to a contested jurisdictional hearing. After resting their case, the People moved to amend count 1 to conspiracy to commit robbery. The juvenile court thereafter found count 3 (conspiracy to commit commercial burglary) true, but found the other five counts not true. The court declared F.M. a ward of the court and placed him on probation subject to various terms and conditions.
On appeal, F.M. claims the court's true finding on the conspiracy to commit commercial burglary allegation is not supported by substantial evidence that he conspired to take property exceeding $950. The People argue that the juvenile court's finding is supported by substantial evidence but, if we disagree, they request we modify the finding to the lesser included offense of conspiracy to commit shoplifting. (§ 459.5.) In reply,F.M. contends that conspiracy to commit shoplifting is not a lesser included offense of conspiracy to commit burglary. He also contends that reducing the finding to conspiracy to commit shoplifting would violate his right to due process given that the juvenile court found the allegation of conspiracy to commit theft not true.
We conclude the finding that F.M. conspired to commit commercial burglary is unsupported by substantial evidence as to the element of value and, because conspiracy to commit shoplifting is not a lesser included offense, the finding may not be modified on review. (§§ 1181, subd. 6, 1260.) The finding on count 3, conspiracy to commit commercial burglary, is therefore reversed.
F.M. was a cashier at a fast food restaurant, a position he held for two or three months preceding the crime. One evening, shortly after he started his shift, an individual, later identified as D.T., approached F.M.'s register. D.T. was wearing a black, curly-haired wig and round glasses with rainbow-like reflective lenses. D.T.'s unusual appearance caught the attention of the employee who was assisting with filling orders, and she testified she had seen him in the restaurant at the same time the previous day, at which time he entered wearing the wig and glasses, sat at a table and watched the employees work.
After D.T. ordered a drink, F.M. turned to the employee assisting, who then left to fill the order. When she returned, D.T. was gone and F.M. said, "I think I got robbed." She responded, F.M. was quiet in response and the employee informed the shift manager. F.M. did not mention a gun.
F.M. subsequently stated that the man in the wig and glasses displayed a gun that was in his pants and demanded the money from F.M.'s register. F.M. handed over the money and the man left. The restaurant's surveillance cameras were not working at thetime, but the crime occurred during the dinner rush and no one other than F.M. reported seeing a gun despite the presence of many customers.
At the time of the crime, each cash drawer held $150 at the beginning of a shift. The cash limit for each register was approximately $250. When the limit was reached, the register would automatically notify the cashier that a cash drop was necessary and no further orders could be rung up on the register until the manager made a cash drop. F.M. was at the beginning of his shift at the time of the crime and, after he reported being robbed, the shift manager took his cash drawer to the back office. All of the bills were gone, but coins remained. Staff determined that $181.99 had been stolen.
The district manager came to the restaurant after learning of the crime and, after speaking with F.M., allowed him to leave for the day, although F.M. did not appear upset. The district manager and another employee also overheard F.M. on the phone. F.M. was talking to a friend, and he laughed and joked about being robbed. He asked to be picked up, telling his friend that he did not want to go home.
Fairly quickly, law enforcement identified F.M.'s friend, D.T., as the individual in the wig and glasses who came into the restaurant. The round, rainbow-lensed glasses and an airsoft pellet gun were recovered from D.T.'s house and although the wig was not located, D.T.'s father confirmed D.T. had such a wig. Police located black, curly hairs on the floor of D.T.'s room that appeared to be synthetic.
In addition, there was evidence that F.M. and D.T were together at F.M.'s house prior to F.M.'s shift at the restaurant, and D.T. picked F.M. up nearby after the robbery. They then attended a party, shortly before which F.M. received a text message regarding $100 in acid, which F.M. requested be delivered to the address where the party was being held.
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.) This standard, applicable to adults in criminal court, also applies to a juvenile court's findings of fact. (In re B.M. (2018) 6 Cal.5th 528, 536; In re Gary H. (2016) 244 Cal.App.4th 1463, 1477.)
(People v. Johnson (2013) 57 Cal.4th 250, 257, quoting People v. Morante (1999) 20 Cal.4th 403, 416.)
Burglary, the target offense of the conspiracy in this case, "consists of an act—unlawful entry—accompanied by the 'intent to commit grand or petit larceny or any felony.'" (People v. Montoya (1994) 7 Cal.4th 1027, 1041, quoting § 459, fn. omitted.) As to entry with larcenous intent, the burglary statute is limited by section 459.5, subdivision (a), which was added to the Penal Code pursuant to Proposition 47. Effective November 5, 2014, the statute provides: (§ 459.5, subd. (a), italics added.) "A defendant must be charged only with shoplifting when the statute applies" and, in subdivision (b), the statute "expressly prohibits alternate charging ...." (People v. Gonzales (2017) 2 Cal.5th 858, 876.)
"A felony burglary charge [may] legitimately lie if there [is] proof of entry with intent to commit a nontheft felony or an intent to commit a theft of other property exceeding the shoplifting limit" (People v. Gonzales, supra, 2 Cal.5th at p. 877) and,...
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