IN RE: BRIAN G. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

A petition filed pursuant to Welfare and Institutions Code section 602 charged Brian G. with committing the offenses of second degree burglary of an automobile (Pen.Code, § 459; ¹  count 1), receiving stolen property (§ 496, subd. (a);  count 2) and grand theft of personal property (§ 487, subd. (a);  count 3).   The court found count 1 true, found count 3 true as reduced by the court, dismissed count 2, and made a dispositional order which was entered in the minutes.   Two days later, the court reopened the hearing, dismissed count 3, reinstated count 2, found count 2 true, and made a new dispositional order.   Brian contends that double jeopardy principles barred the court from reinstating the dismissed count.   We agree and reverse the true finding on the receiving stolen property charge.

BACKGROUND

Prosecution Evidence

On February 8, 2009, at approximately 11:30 a.m., Adrian Monterrosas Rojas parked his Honda SUV on Amalia Avenue near Saint Alfonso Church.   He locked the vehicle, set the car alarm, and went into the church.

At approximately 11:30 a.m. the same morning, Helen Rivera and her boyfriend were driving slowly on Amalia Avenue looking for a parking space when she saw two young males running down the street holding what appeared to be car speakers and amplifiers.   Her boyfriend turned the car around and, as they travelled in the opposite direction, Rivera saw a SUV that appeared to have been broken into.   A window of the SUV was broken, glass was on the ground, and the rear hatchback window was open.   Rivera watched as the boys hid the speakers and amplifier in some bushes near a school and then run off in opposite directions.   Rivera called 911.

Also on February 8, 2009, Lorena Paredes drove to Saint Alfonso Church on Amalia Avenue to attend the 11:30 a.m. mass.   When she parked her car she heard a noise that sounded like a bang and heard a car alarm.   Three to five seconds later she saw two young men running from the SUV parked next to her car holding “a lot of equipment.”   She noticed that the back window of the SUV was open and called 911.   At the 911 operator's request, Paredes followed the two boys in her car and watched them place the stereo equipment into some bushes near a school and then run off in opposite directions.   She later saw one of the boys return to where the equipment was hidden.   Police arrived, and detained Brian, whom, in a field show up, Paredes identified as one of the two boys she saw running with the stereo equipment.

Rojas returned to his SUV approximately an hour later to find it surrounded by police officers.   The passenger side window was broken.   Two speakers and an amplifier were missing from the rear of the SUV. Police recovered his stereo equipment from the bushes where Brian and his cohort had left it and returned the equipment to Rojas the same day.

Rojas testified that he thought his stereo equipment was worth approximately $500, and acknowledged, that because of his nervousness, he told police at the scene that the speakers cost $100 and that the amplifier cost $150.   He agreed, however, that the replacement value of the two speakers and amplifier was probably closer to $350.   Rojas testified that he spent $120 to replace the window and clean up the glass.

Police detained Brian and transported him to the station where he waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and provided a statement.   In his written statement Brian G. said:  “I wa[s] walking down Sixth Street.   I saw a friend Didds taking things out of the car.   He called me and told me to take it out of the car.   He gave me his speaker to hold on to ․ and ran.   I ran when I heard the alarm go off.   That's when I decided to leave the things on the floor.   When I got to the corner, that's when I seen the police and got caught.”

Motion to Reduce the Charged Crimes to Misdemeanors

At the close of the prosecution's case defense counsel argued that all three counts should be reduced to misdemeanors, and further argued that the evidence failed to show the stolen equipment was worth more than $400, a required element of grand theft.²  The court agreed that the evidence failed on the value element, and thus granted the defense request to reduce the theft charge to a misdemeanor.   The court denied the request to reduce the two other charges to misdemeanors.

Brian's Testimony

Brian, then age 14, testified in his own defense.   On February 8, 2009, he was walking to a store when he saw an acquaintance he knew as Didds who called him over and asked to borrow his cell phone.   Didds asked Brian to hold his speaker while he used the cell phone.   Just then a car alarm went off and the two boys took off running.   When Brian realized that Didds had probably stolen the speaker, Brian dropped the speaker and left the area.   When he returned to the area to retrieve his cell phone from Didds police detained him.

Adjudication and Disposition

On June 24, 2009, after hearing the evidence discussed above, the juvenile court found the petition's allegations of burglary and the reduced theft charge true and accordingly sustained counts 1 and 3 of the petition.   The court declared the burglary offense (count 1) to be a felony and the theft offense (count 3) to be a misdemeanor.   The court dismissed the receiving stolen property charge (count 2) to avoid the prohibition against dual convictions for receipt and theft of the same stolen property. (§ 496, subd. (a).) ³

The court then proceeded to disposition, declared Brian a ward of the juvenile court, granted him probation, ordered him to serve five days in juvenile hall, and thereafter to be released to his mother's custody.   The court's orders were entered into the minutes and filed the same day.

Modification Hearing

Two days later, on June 26, 2009, the court recalled the case and modified the adjudication and disposition orders it had entered on June 24, 2009.   Apparently, the court and counsel had had informal discussions regarding whether the court had properly sustained the grand theft allegation (count 3) despite having found insufficient evidence that an element of the charge had been established.   At the hearing, the court and counsel discussed whether grand theft was a so-called “wobbler” offense and whether, because the prosecution had failed to prove sufficient value of the property, the court had correctly reduced the offense to a misdemeanor.   The parties also discussed, as an alternative, the court finding the offense to be petty theft, a lesser included offense of grand theft.   Following these discussions, the court dismissed the theft offense (count 3), reinstated the previously dismissed receiving stolen property offense (count 2), found it to be true, declared it to be a felony, repeated the dispositional orders made on June 24, and set a maximum term of confinement at three years and eight months.

DISCUSSION

Brian contends that by rehearing the matter and reinstating the previously dismissed count the juvenile court violated the prohibition against double jeopardy found in both the federal and state constitutions.   We agree.

“In proceedings before the juvenile court juveniles are entitled to constitutional protections against twice being placed in jeopardy for the same offense.  (U.S. Const., Amends.   V, XIV;  Cal. Const., art.   I, § 13․”  (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375.)  “Jeopardy attaches in a juvenile delinquency proceeding ‘when the first witness is sworn at the adjudicatory phase of the jurisdictional hearing.’  (In re Abdul Y. (1982) 130 Cal.App.3d 847, 855-856].)   Thereafter, a juvenile cannot be retried unless there is a mistrial.  (T.P.B. v. Superior Court (1977) 66 Cal.App.3d 881, 884.)”  (In re Pedro C. (1989) 215 Cal.App.3d 174, 180.)

“[T]he risk to which the term jeopardy refers is that traditionally associated with ‘actions intended to authorize criminal punishment to vindicate public justice.’  [Citation.]  Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens-psychological, physical, and financial-on a person charged.   The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once ‘for the same offense.’  [Citations.]”  (Breed v. Jones (1975) 421 U.S. 519, 529-530 [applying double jeopardy principles to bar a second evidentiary hearing when a juvenile is transferred to the superior court for trial after a fitness hearing on the same charges].)

In support of these principles, courts have consistently held that double jeopardy bars reopening proceedings once a judgment has been entered.   The Supreme Court's decision in Richard M. v. Superior Court, supra, 4 Cal.3d 370 illustrates this principle.   In Richard M., a petition charged the juvenile with grand theft of a motorcycle.   Because the probation officer expected an uncontested hearing, he did not arrange for any witnesses to be present in court.   The court examined the juvenile without swearing him in.   He admitted committing the theft but described how he had been forced to take the motorcycle against his will by an older boy who had threatened him with a knife.  (Id. at pp. 373-374.)   His parents, also unsworn, explained why they believed their son's version of the events.   At the conclusion of the hearing, the court stated that it was not convinced beyond a reasonable doubt of the juvenile's guilt.   The probation officer requested a week's continuance to bring in the owner of the motorcycle as a witness.   The court denied the continuance, found the allegations of theft not sustained, and dismissed the petition.  (Id. at p. 374.)   A new petition was filed with identical allegations.   In response, the juvenile filed a motion to dismiss on double jeopardy grounds.   The court denied the motion, stating that it had acted precipitously in refusing a continuance, and set a date for a second jurisdictional hearing.   The juvenile sought a writ of prohibition.  (Id. at p. 375.)

On review, the Supreme Court held that the juvenile court's determination that it had acted precipitously came “too late” (Richard M. v. Superior Court, supra, 4 Cal.3d at p. 377) because its earlier dismissal was “a final order, based upon a finding of insufficiency of the evidence, after a hearing on the merits.”  (Id. at p. 378, fns. omitted.)   The Richard M. Court explained that the “dismissal was equivalent to an acquittal.   Jeopardy attached and further hearing on the same act and offense by the same minor is barred by the constitutional protections against double jeopardy.   The juvenile was exposed to a finding that he be made a ward of the court as sought by the People.   He should not be exposed a second time because of procedural errors for which he was not responsible and because the People's case was inadequately presented.”  (Id. at p. 378.)

The decision in Richard M. controls.   Dismissal of count 2 at the conclusion of the first hearing was tantamount to an acquittal of the charge of receiving stolen property.  (Richard M. v. Superior Court, supra, 4 Cal.3d at p. 378 [dismissal based on insufficiency of the evidence was the equivalent to an acquittal to which jeopardy attached];  In re James M. (1973) 9 Cal.3d 517, 520 [true finding of nonexistent lesser offense operated as an implied acquittal of the charged offense];  In re Anthony H. (1982) 138 Cal.App.3d 159, 164[“[a] dismissal of an allegation in a juvenile court hearing on the basis of insufficient evidence should have the same effect as an acquittal for the purpose of double jeopardy analysis”].)

The dismissal of count 2 became final no later than upon entry of the dismissal and disposition into the court's minutes.   Once entered, it became a final order.⁴  (Code Civ. Proc., § 581d [order of dismissal is effective for all purposes when entered];  Code of Civ. Proc., § 664 [when trial is by the court the judgment is effective when entered by the clerk];  cf.  In re Anthony H., supra, 138 Cal.App.3d at pp. 165-166 [the continued adjudication hearing did not subject the minor to double jeopardy because the juvenile court's initial dismissal order was merely an interim ruling, effectively vacated in open court, and not entered in the minutes on that date];  In re Stephen P. (1983) 145 Cal.App.3d 123, 134 [juvenile was not subjected to double jeopardy because the court vacated its erroneous order of dismissal during the adjudication hearing, before reaching disposition, and long before entry of the minute order].)

Although, unlike Richard M., the prosecution did not file a new petition alleging the dismissed stolen property charge, the court's resurrection of the dismissed count on its own motion was nonetheless a successive, and second prosecution, for the same offense.   Reinstatement of the dismissed charge, however, was barred by the constitutional protections against double jeopardy which prevented Brian from being twice exposed to a true finding on the receiving stolen property charge.  (Richard M. v. Superior Court, supra, 4 Cal.3d at p. 378 [notwithstanding the juvenile's admissions, he “should not be exposed a second time because of procedural errors for which he was not responsible and because the People's case was inadequately presented”].)

DISPOSITION

The June 26, 2009 order finding true the charge in count 2 of receiving stolen property is reversed and the cause is remanded to the juvenile court with directions to dismiss count 2, modify its disposition order as may be necessary, and to forward a copy of the corrected orders to the Department of Corrections and Rehabilitation, Juvenile Justice Division.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Further unmarked statutory references are to this Code..  FN1. Further unmarked statutory references are to this Code.

FN2. Section 487, subdivision (a) specifies that grand theft is theft committed “[w]hen the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400) except” in other circumstances inapplicable here..  FN2. Section 487, subdivision (a) specifies that grand theft is theft committed “[w]hen the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400) except” in other circumstances inapplicable here.

FN3. Section 496, subdivision (a) provides:  “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year․“A principal in the actual theft of the property may be convicted pursuant to this section.   However, no person may be convicted both pursuant to this section and of the theft of the same property.”  (Italics added;  see also, People v. Ceja (May 17, 2010, S157932) _ Cal.4th _;  People v. Jaramillo (1976) 16 Cal.3d 752, 757 [stating the common law rule that it is a “fundamental principle that one may not be convicted of stealing and of receiving the same property”].).  FN3. Section 496, subdivision (a) provides:  “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year․“A principal in the actual theft of the property may be convicted pursuant to this section.   However, no person may be convicted both pursuant to this section and of the theft of the same property.”  (Italics added;  see also, People v. Ceja (May 17, 2010, S157932) _ Cal.4th _;  People v. Jaramillo (1976) 16 Cal.3d 752, 757 [stating the common law rule that it is a “fundamental principle that one may not be convicted of stealing and of receiving the same property”].)

FN4. Because the parties stipulated that the referee would sit as a temporary juvenile court judge, the referee's orders became “final in the same manner as orders made by a judge.”  (Welf. & Inst.Code, § 250;  In re Perrone C. (1979) 26 Cal.3d 49, 57 [by stipulation of the parties full judicial powers can be conferred on a qualified referee in juvenile proceedings].).  FN4. Because the parties stipulated that the referee would sit as a temporary juvenile court judge, the referee's orders became “final in the same manner as orders made by a judge.”  (Welf. & Inst.Code, § 250;  In re Perrone C. (1979) 26 Cal.3d 49, 57 [by stipulation of the parties full judicial powers can be conferred on a qualified referee in juvenile proceedings].)

MALLANO, P. J. JOHNSON, J.