Filed 4/15/14 In re W.C. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


In re W.C.,                                                                      B248109

a Person Coming Under the Juvenile Court Law.                                    (Los Angeles County
                                                                                  Super. Ct. No. FJ50302)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

W.C.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County,
Tamara Hall, Judge. Reversed in part and affirmed in part.
         Mary Bernstein, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and
Respondent.
                                  INTRODUCTION
      Appellant W.C., a minor, appeals from the order of the juvenile court
finding that he committed residential burglary (Pen. Code, § 459)1 and grand theft
(§ 487, subd. (a)), and sustaining a petition under Welfare and Institutions Code
section 602 (section 602). He contends that there is no substantial evidence for the
finding that he committed theft. He further contends that the juvenile court erred
in setting a maximum confinement time because he was not removed from his
parent’s physical custody.
      We reverse the finding sustaining count 2, because substantial evidence did
not support the finding that appellant committed theft of a laptop. We order the
maximum term of confinement to be stricken. In all other respects, the order of
wardship is affirmed.


               FACTUAL AND PROCEDURAL BACKGROUND
August 13, 2012 Section 602 Petition
      On August 13, 2012, the Los Angeles County District Attorney filed a
section 602 petition alleging that on April 27, 2012, appellant committed one count
of residential burglary (count 1) and one count of grand theft of personal property
(count 2), both felonies. With respect to count 2, the petition alleged that appellant
“did unlawfully take money and personal property of a value exceeding Nine
Hundred Fifty Dollars ($950), to wit, LAPTOP, XBOX, GAME, HEADPHONES,
the property of Oscar Barrera.”




1
       All subsequent undesignated references are to the Penal Code, unless otherwise
specified.

                                           2
Evidence at Hearing
      At a February 26, 2013 hearing, Oscar Barrera testified that he left his
apartment at approximately 9:00 a.m. on April 27, 2012, and returned home later
that day between 1:00 and 3:00 p.m. As he pulled into the driveway, he saw his
upstairs neighbor, whom he knew as “Ju-Ju,” running up the stairs at the back of
the apartment building. Those stairs are next to Barrera’s first-floor bedroom
window, and lead to Ju-Ju’s upstairs apartment. Barrera stated that his doors and
windows were locked when he left that morning.
      When Barrera walked into his bedroom, he noticed that his Xbox game
console was missing. As he looked around, he discovered that his laptop and
headphones were also gone. Barrera testified that he paid approximately $400 for
the Xbox game console, $600 for the laptop, and $250 for the “Beats” headphones.
      Barrera called the police and then went upstairs to Ju-Ju’s apartment and
talked to his mother and father. Thirty minutes later, Ju-Ju returned the laptop and
headphones to him. Later that week, his Xbox was returned by another suspect
whom Barrera could not identify except to state that he did not see the person who
returned any of those items in court.
      Los Angeles Police Department Officer Al Navarro and his partner
responded to Barrera’s call reporting a burglary. Barrera pointed out to Officer
Navarro that his bedroom window was partially open and the screen was off, and
Officer Navarro concluded that the window was the likely point of entry for the
burglars.
      Ju-Ju told the police that appellant had been involved in the theft and
provided appellant’s address. Officer Navarro and his partner then went to
appellant’s home, arrested him, and transported him to the police station for
questioning. Appellant admitted that he and two of his friends, Ju-Ju and Dorian,

                                         3
were standing outside Ju-Ju’s apartment, near some stairs next to a neighbor’s
window. They noticed that the window was unlocked. One of his friends came up
with the idea to go inside and take items. They opened the window, and all three
boys crawled inside the apartment; each took an item and put it in his own
backpack, and then they left together. Appellant stated he took an Xbox and some
headphones. As they walked down the street, Ju-Ju got a call from one of his
parents; he gave the item he had taken to Dorian for safekeeping, and at that point
the three boys split up and went to their respective homes. None of the stolen
items was recovered from appellant.


Trial Court’s Findings
      The juvenile court found that appellant “admitted that he and his friends
went inside, they all took items.” The court noted that appellant “was able to
express which items he took; in particular, it was the laptop.” The court amended
count 2 of the petition by interlineation by striking the words “Xbox,” “game,” and
“headphones,” finding that those items did not “pertain” to appellant, and that “the
property that remains as to the minor is the laptop.” Thus, the count 2 grand theft
allegation, as sustained in the amended petition, stated that appellant had
unlawfully taken a laptop, with a value exceeding $950. The court also sustained
count 1 alleging residential burglary, and declared appellant a ward of the court.
      At the disposition hearing, the court noted that appellant had been found to
have committed another first degree residential burglary offense on April 30, 2012
(three days after the offense in the instant case), and a May 2, 2012 petition based
on that offense was sustained by another court. For that offense, appellant was
placed home on probation.



                                          4
       The court in the instant case ordered the conditions of probation in the
previous case to remain in full force and effect, and set a maximum confinement
time for eight years, eight months. No predisposition credits were awarded.
       Appellant appeals from the juvenile court’s order.


                                     DISCUSSION
    I. Insufficient Evidence Supported Finding That Appellant Stole Laptop
       Although the juvenile court found that appellant had taken a laptop from
Barrera’s apartment, and not an Xbox, games, and headphones, in fact, Officer
Navarro testified that appellant admitted he took an Xbox and some headphones,
not a laptop, and no other evidence was presented that appellant personally took
the laptop. Appellant thus contends there was insufficient evidence to sustain the
charge of grand theft in count 2, which, as amended by the court, was based solely
on the theft of the laptop.2
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task
is to review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is, 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. Rodriguez (1999)
20 Cal.4th 1, 11.) “A reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient substantial evidence
to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th
327, 357; see People v. Bolin (1998) 18 Cal.4th 297, 331.) These principles are

2
       Appellant does not challenge the sufficiency of evidence to support count 1, for
residential burglary, or the court’s finding that appellant was a ward of the court under
section 602.

                                             5
equally applicable to a review on appeal of the sufficiency of the evidence in a
juvenile proceeding in which the minor is alleged to have violated a criminal
statute. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
      The Attorney General contends that sufficient evidence was presented that,
at a minimum, appellant aided and abetted the theft of the laptop, even if he did not
personally take that item and instead personally took the Xbox and headphones
while one of his friends removed the laptop from Barrera’s apartment. Under
section 31, “‘[a]ll persons concerned in the commission of a crime, . . . whether
they directly commit the act constituting the offense, or aid and abet in its
commission, . . . are principals in any crime so committed.’ . . . [Citation.]” (§ 31;
see People v. Delgado (2013) 56 Cal.4th 480, 486.) Therefore, the Attorney
General asserts, appellant was properly found to have committed the theft of the
laptop as an aider and abettor.3
      However, appellant counters that the juvenile court “foreclosed a finding of
grand theft on an aiding and abetting theory” by striking the reference to the Xbox,
games, and headphones because they did not “pertain” to appellant and by ruling
that appellant committed theft based solely on the finding that appellant personally
took the laptop. Appellant contends that by specifically finding that appellant
personally stole the laptop, the court necessarily found that appellant did not assist
or aid another in taking it, and therefore we may not affirm the juvenile court’s
finding on the theft charge on an alternative aiding and abetting theory.


3
        Although the section 602 petition did not reference an aiding and abetting theory
of liability for the theft, “[i]n California one may be convicted of aiding and abetting
without the accusatory pleading reciting the aiding and abetting theory so long as
defendant is charged in that pleading as a principal to the substantive offense and thus
receives notice of the charge against him.” (People v. Greenberg (1980) 111 Cal.App.3d
181, 188.)

                                            6
       Although appellant does not cite any supporting authority for his position,
his argument is well-taken, and finds support in People v. Guiton (1993) 4 Cal.4th
1116 (Guiton), which arose in the context of a jury trial leading to a criminal
conviction that could have been based either on a theory of liability that was
supported by substantial evidence, or a theory that was not supported. The
particular issue the Supreme Court considered was whether a conviction for the
“sale or transportation of cocaine” (Health & Saf. Code, § 11352), could be upheld
when the jury was permitted to convict the defendant of that offense on either of
two grounds—that he sold or transported the cocaine—but there was insufficient
evidence to support a finding that he sold cocaine. (Guiton, supra, 4 Cal.4th at p.
1120.) The court concluded that “[a]n appellate court necessarily operates on the
assumption that the jury has acted reasonably, unless the record indicates
otherwise. [¶] . . . Thus, if there are two possible grounds for the jury’s verdict,
one unreasonable and the other reasonable, we will assume, absent a contrary
indication in the record, that the jury based its verdict on the reasonable ground.”
(Id. at p. 1127.) Where, however, there is “an affirmative indication in the record
that the verdict actually did rest on the inadequate ground,” reversal is required
even if a valid alternative ground for the verdict remains.4 (Guiton, supra, 4
Cal.4th at p. 1129; see id. at p. 1130 [“[T]he appellate court should affirm the
judgment unless a review of the entire record affirmatively demonstrates a
reasonable probability that the jury in fact found the defendant guilty solely on the
unsupported theory.”]; accord People v. Perez (2005) 35 Cal.4th 1219, 1233.)


4
        On the other hand, if the inadequacy in one of the grounds presented to the jury is
legal, not merely factual, that is, when the facts do not state a crime under the applicable
statute, reversal is required, “absent a basis in the record to find that the verdict was
actually based on a valid ground.” (Guiton, supra, 4 Cal.4th at p. 1129.)

                                              7
       Here, the juvenile court, not a jury, was the factfinder, but we do not believe
that distinction materially affects the analysis. The general rule is that “‘[a]fter
conviction all intendments are in favor of the judgment and a verdict will not be set
aside unless the record clearly shows that upon no hypothesis whatsoever is there
sufficient evidence to support it.’ [Citation.]” (People v. Gonzales (1970) 4
Cal.App.3d 593, 602.) In this case the court’s statements on the record, in finding
that appellant had committed theft, leave no room for doubt that the court based its
finding on the unsupported theory that appellant personally stole the laptop. Even
if substantial evidence supported a finding of guilt on an aiding and abetting
theory, we cannot ignore the affirmative indications in the record that the court did
not rely on this theory. Because the theory on which the court actually relied, that
appellant personally stole the laptop, is not supported by substantial evidence, we
reverse the court’s finding that appellant is guilty of theft.5


    II. Maximum Confinement Time
       Appellant correctly argues that the juvenile court erred in setting a maximum
term of confinement for his disposition of home on probation. Welfare and
Institutions Code section 726, subdivision (d) provides: “If the minor is removed
from the physical custody of his or her parent or guardian as the result of an order
of wardship made pursuant to Section 602, the order shall specify that the minor
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 convicted of the



5
      Because we find that the juvenile court erred in finding the theft offense true, we
need not consider appellant’s alternative argument that he should have been found to
have committed only petty theft, not grand theft.

                                             8
offense or offenses which brought or continued the minor under the jurisdiction of
the juvenile court.”
      By its express terms, Welfare and Institutions Code section 726, subdivision
(d) applies only if a minor is removed from the physical custody of his or her
parent or guardian. Appellant was not removed from the physical custody of his
parent, there was no confinement, and the order setting a maximum term of
confinement is erroneous. (In re P.A. (2012) 211 Cal.App.4th 23, 30; In re Ali A.
(2006) 139 Cal.App.4th 569, 573.) Therefore, we order stricken the maximum
term of confinement. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541; see In
re A.C. (2014) 224 Cal.App.4th 590, 592 [“[W]here a juvenile court’s order
includes a maximum confinement term for a minor who is not removed from
parental custody, the remedy is to strike the term.”])6




6
      Because we order the maximum term of confinement to be stricken, we need not
consider appellant’s alternative arguments that the term of confinement was
miscalculated or that the court should have awarded more pre-disposition credit.
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                                  DISPOSITION
             The order of the juvenile court sustaining a true finding as to count 2
is reversed, and the theoretical maximum term of confinement is stricken. In all
other respects the order of wardship is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             MANELLA, J.




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