IN RE: LARRY R. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Appellant Larry R. appeals from an order of the juvenile court in which he was found to be a ward of the court as described in Welfare and Institutions Code section 602.   He was charged with first degree burglary (Pen.Code, § 459) in a petition filed on March 10, 2010.   He was charged with petty theft (id., § 484, subd. (a)) and giving false information to a police officer (id., 148.9, subd. (a)) in a petition filed on July 19, 2010.

At the adjudication hearing on July 19, 2010, on the March 10 petition, the juvenile court found the allegation of the petition true.   On November 15, 2010, appellant admitted the charge in count 1 of the July 19 petition, and the juvenile court dismissed count 2 of the petition on the prosecutor's motion.

At the disposition hearing on December 9, 2010, the juvenile court declared appellant a ward of the court pursuant to Welfare and Institutions Code section 602, placed him home on probation, with numerous conditions.   The court orally set the maximum term of confinement at six years two months, but the maximum term of confinement was not set forth in the minute order.

Appellant contends there was insufficient evidence to support the finding that he committed a first degree burglary.   He also asserts that the juvenile court erred by not determining his predisposition credits.   We disagree and affirm the court's order.

FACTS

Prosecution

On Sunday, January 10, 2010, at 2:45 a.m., Phyllis Collier (Collier) was asleep in her home in Los Angeles.   Prior to going to sleep, she had locked all the doors and closed all the windows.   No one else was in the house with her.

Collier woke up and saw appellant in her bedroom.   Appellant was a friend of Collier's grandson, Charles.   Appellant had been to the residence before but had not been given permission to be there that morning.   Charles was not home when appellant came over.   When Collier saw appellant, he was trying to get her briefcase.   When Collier asked appellant what he was doing in the house, he stated, “Where's Charles?”   Collier told appellant to leave and he ran out of the room, kicked down the back door, and ran out of the house.   Collier called the police.   She noticed that the window panes and screen had been removed from one of the windows.

Collier found her purse and contents dumped on Charles's bed.   Her cell phone was missing and a fruit juice had been taken from the kitchen.   When law enforcement arrived, Collier gave Los Angeles County Deputy Sheriff John Holm a description of appellant.   Appellant was found about ten blocks away.   Collier identified appellant at a field show-up.   The police recovered a cell phone and a frozen fruit juice, both belonging to Collier.

After being advised of his Miranda ¹ rights, appellant initially told Deputy Holm the cell phone was his, but he later admitted he had taken it from Collier's room.   He also admitted taking the fruit juice from the freezer.

Defense

Appellant went to Collier's house on January 10, 2010, to see Charles.   He and Charles had been friends for about three years and during that time he had gone to Collier's house “frequently.”   Appellant went to the house because he had been at a party and asked Charles if he wanted to go.   Charles texted him around 12:30 a.m. and told him that he wanted to go to the party and to meet him at Collier's house.

When appellant arrived at Collier's house, he rang the doorbell, but no one answered.   The front door was unlocked and appellant walked in and went to Collier's room.   He shook Collier's bed, but Collier did not wake up.   He left the room and got a juice.   Collier had allowed appellant to take food from her house in the past.   Appellant went back to Collier's room, shook the bed and Collier woke up and asked what he was doing in the house.   He left when Collier told him to leave.

Appellant took the phone from Collier's purse in her bedroom before Collier woke up.   Appellant used Collier's cell phone to call Charles, but Charles did not answer.   He forgot he had it.   Appellant took the phone because “that just popped into [his] mind.”   Appellant also knew that Charles had his own bedroom in the house and knew where it was.

Appellant testified that January 10 was the first time he did not see the screen on the window.   He had seen Charles enter the house through the window “a hundred times.”

DISCUSSION

Sufficiency of the Evidence to Support the First Degree Burglary Finding

In reviewing a claim of insufficient evidence to sustain a finding of guilt, our role is a limited one.  (People v. Smith (2005) 37 Cal.4th 733, 738.)   The test to determine sufficiency of the evidence is whether, on the entire record, there is substantial evidence from which a rational trier of fact could find defendant guilty beyond a reasonable doubt.  “ ‘ “On appeal, we must view the evidence in the light most favorable to the [prevailing party] and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  [Citation.]” ’  [Citations.]”  (Id. at p. 739.)

Substantial evidence is that which is reasonable, credible and of solid value.  (People v. Bradford (1997) 15 Cal.4th 1229, 1329.)   The uncorroborated testimony of even one witness may provide substantial evidence, “unless the testimony is physically impossible or inherently improbable.”   (People v. Scott (1978) 21 Cal.3d 284, 296.)   We do not reweigh the evidence, in that questions of credibility and the weight to be given the evidence are matters exclusively within the province of the trier of fact.   The same standard governs the sufficiency of the evidence in adult criminal cases and juvenile cases.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206;  People v. Ceja (1993) 4 Cal.4th 1134, 1139.)

Burglary involves the act of unlawful entry accompanied by the specific “intent to commit grand or petit larceny or any felony.”  (Pen.Code, § 459;  People v. Montoya (1994) 7 Cal.4th 1027, 1041.)  “One may [be] liable for burglary upon entry with the requisite intent ․, regardless of whether the felony or theft [actually] committed is different from that [originally] contemplated ․, or whether any felony or theft actually is committed.”   (Montoya, supra, at pp. 1041–1042.)

Appellant initially contends that there was insufficient evidence to support the juvenile court's finding he committed a burglary because no evidence was introduced establishing that he entered the home with the intent to commit a felony.   We disagree.

In order to constitute a burglary, the defendant must intend to commit the theft or felony at the time of entry.  (People v. Holt (1997) 15 Cal.4th 619, 669.)   The existence of the requisite intent is rarely shown by direct proof, but may be inferred from fact and circumstances.  (Ibid.) Evidence of theft of property following entry may create a reasonable inference that the intent to steal existed at the moment of entry.  (In re Leanna W. (2004) 120 Cal.App.4th 735, 741.)

Appellant admitted that he took Collier's cell phone and a fruit juice from her freezer.   After the incident, Collier discovered that a screen and glass panes had been removed from a window in her house.   The time of the entry is also relevant.   Appellant entered the locked residence around 3:00 a.m., without Collier's permission.   Even though appellant knew where the bedroom belonging to Charles was located, he went to Collier's room.   When confronted, appellant ran away.

Appellant's story about being in the house to meet Charles was not believable based upon the facts.   The juvenile court is to determine the credibility of the witnesses.  (People v. Swanson (1962) 204 Cal.App.2d 169, 173.)   The juvenile court found Collier's testimony to be more credible than appellant's and stated:  “[I]t's not logical that you walk an hour or an hour and a half to somebody's house that you know is not home and that you just happen to find a door open and that you go in looking for that person.”

Substantial evidence supports the finding of the juvenile court that appellant entered the residence with the intent of committing a theft or a felony.

Failure to Determine Appellant's Predisposition Credits

Appellant contends that the juvenile court erred when it failed to determine his predisposition credits.   We disagree.

Welfare and Institutions Code section 726, subdivision (c), provides that if a “minor is removed from the physical custody of his ․ parent or guardian,” he or she “may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult․”

At the end of the disposition hearing, the juvenile court asked appellant's counsel if she had determined appellant's credits.   She responded, “Your honor, I can come back with that number.   I actually don't have my file with me.”   Appellant's counsel never provided the court with a number, and the court never declared the number of credits to which appellant was entitled.

It is not necessary to determine the predisposition credits in the instant case because appellant was placed home on probation.  (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)   At a later date, if appellant is removed from his guardian's custody, the court would then be required to determine the appropriate credits and maximum term of confinement.  (Id. at pp. 573–574.)

DISPOSITION

The order is affirmed.

We concur:

FOOTNOTES

FN1. Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]..  FN1. Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].

PERLUSS, P.J. ZELON, J.