Filed 3/22/16 In re A.S. CA6
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                           SIXTH APPELLATE DISTRICT

In re A.S., a Person Coming Under the                                        H042302
Juvenile Court Law.                                                         (Santa Clara County
                                                                             Super. Ct. No. JV41065)

THE PEOPLE,

          Plaintiff and Respondent,

          v.

A.S.,

          Defendant and Appellant.


          A.S. (the minor) appeals an order of the juvenile court in which she was found to
have committed, among other offenses, felony burglary of a vehicle (Pen. Code, §§ 459,
460, subd. (b)),1 arguing there is not substantial evidence to support the court’s finding
that the allegations were true.
          We agree the evidence presented at the jurisdictional hearing was insufficient to
support a finding that the minor had the necessary intent to commit a theft or other felony
when she entered the victim’s vehicle. Consequently, we will reverse the judgment.
I.        FACTUAL AND PROCEDURAL BACKGROUND
          A.         Section 602 petition
          On January 29, 2015, the People filed a petition under Welfare and Institutions
Code section 602, subdivision (a), alleging that the minor committed felony assault by

          1
              Unspecified statutory references are to the Penal Code.
means of force likely to produce great bodily injury against Stefanie Tator (§ 245,
subd. (a)(4), count 1); felony burglary of a vehicle (§§ 459, 460, subd. (b), count 2); and
misdemeanor battery of Timothy Tator (§§ 242, 243, subd. (a), count 3).
         B.     Jurisdictional hearing2
                1.     People’s case
                       a.     Stefanie Tator
         On January 28, 2015, at approximately 2:00 a.m., Stefanie was walking her dog
before leaving for her 3:00 a.m. work shift. She heard a noise and decided to walk
toward the garages near her four-plex to investigate because there had been some recent
break-ins at a neighbor’s garage. Stefanie did not notice anything unusual, so she started
to make her way back to the street. As she turned, she saw someone sit up in the driver’s
seat of her car, which was parked outside the garages. Stefanie started walking toward
her car and saw “three other heads pop[] up; one in the passenger seat, and two in the
rear.”
         As she got to her car, Stefanie grabbed the driver’s side door handle, but the car
was locked. She told the people inside, “Get out of my car.” None of them responded,
but instead looked at her, smiling. Stefanie repeated herself, five or six times, more and
more loudly, until finally, a girl got out of the backseat on the driver’s side. The girl
“said something like, we’re just trying to get warm” then leaned inside the car to pick up
“a backpack or bag or something of her stuff.” Stefanie told the girl to leave with her
friends or she would call the police. The girl did not respond.
         The driver’s side door opened and Stefanie saw a young man sitting behind the
wheel. She said, “Get out of my f’ing car.” The man said, “Why?” and Stefanie replied,


         2
         Our recitation of the evidence introduced at the jurisdictional hearing is limited
to that bearing directly on the charge of vehicle burglary (count 2) since that is the only
charge she has challenged in this appeal. We have either omitted or mention only briefly
the testimony relating to the other two charges brought against the minor.
                                               2
“Because it’s my f’ing car; right?” He stepped out of the car and stood behind the girl
who first got out. The other two people in the car, one of whom was a girl,3 got out as
well and walked around to the driver’s side of the car. Stefanie again told them to leave
and she would not call the police. She repeated herself several times, but they made no
attempt to leave.
       Stefanie tapped the first girl who had gotten out of the car on the shoulder and told
her to “walk away[, and] make it easy on yourselves.” The second girl who got out of the
car came up to Stefanie and said, “Don’t hit my sister.” Someone—Stefanie did not see
who—hit her in the face, knocking off her glasses. Stefanie began to walk around them
to get back to her home, saying, “[I]f that’s what you want, then I’m just going to walk
away and call the cops.” She saw her husband, Timothy, standing at the front door so she
called out to him to call the police because “Somebody is trying to steal our car.”
       Stefanie testified somebody in the group started throwing things at her. She
recognized items from her glove box, such as a small pair of binoculars, some CDs and
cell phone chargers, fly past her head. She heard her husband yell, “Are you throwing
stuff at my wife?” and she turned around to see one of the girls had followed her.
       Stefanie said she told the girl she would hold her until the police arrived and
grabbed the sleeve of her sweatshirt. She said “Now we’re going to sit down until the
police gets [sic] here” and forced her to sit on the curb. As Stefanie began to turn and sit
down next to the girl, someone punched her in the face, splitting her lip. She could not
see who hit her. Stefanie stood up and “they” started hitting her in the head from behind,
anywhere from 20 to 40 times. She felt it was more than one person hitting her, and
Stefanie began screaming for help, trying to protect herself from the blows.
       Someone pulled the hood of her coat over her head and pushed her, face first,
against a nearby fence. The blows continued until Stefanie heard a female scream,

       3
       Stefanie said she could not tell the sex of the second person during their
encounter.
                                             3
“I’m going to scratch your eyes out” and someone began clawing at her eyes with their
fingers. Her attacker clawed at her eyes two or three times before someone pulled the
attacker away. One of her neighbors guided Stefanie inside her house.
                    b.     Timothy Tator
       Timothy woke up a little after 2:00 a.m. on January 28, 2015, when he heard what
sounded like women screaming outside his home. He put some pants on and went
downstairs, noticing that Stefanie and the dog were gone. The sounds were coming from
behind the house, so he went out the front door and, recognizing Stefanie was one of
those he could hear screaming, ran around the back.
       Timothy saw Stefanie and their dog, facing two other people. One of the two
people threw something at Stefanie’s face. He chased after the two people, and as he
rounded the corner to an alley, he saw a total of four people running away from him. He
caught the slowest of the four, a young girl, and grabbed her around her neck. He asked
her why she was throwing things at his wife, and she said, “It wasn’t me.” He let her go
and apologized.
       Two other girls, one of whom was the minor, ran back to Timothy, yelling at him
to “Let her go.” The minor punched Timothy in the face. Timothy ran back toward his
house to get his phone and call the police. One of the girls swung her backpack toward
him, which he managed to kick out of her grasp. Thinking there would be identification
inside the backpack, Timothy grabbed it off the ground and brought it into the house with
him.
       Timothy had to search for his phone, so perhaps three minutes elapsed before he
could go back outside. He ran back toward the alley and saw the minor and the other two
girls attacking his wife, punching and kicking her as she was trapped against a fence. He
grabbed the girl who was holding onto the hood of Stefanie’s jacket and threw her off.
Suddenly, he heard a man’s voice behind him say, “What’s up, nigger?” The man threw


                                            4
a punch at his head, but Timothy ducked and grabbed the man’s legs, tackling him and
pinning him to the ground.
       Timothy’s neighbor came running up, holding a can of OC spray,4 and told
Timothy to let the man go. Timothy told his neighbor, “Okay, but don’t let him go,” and
got off him. The man ran off down the alley. Timothy looked around and saw that the
three girls were gone as well.
       Timothy said that the items that were thrown at Stefanie came from her car’s glove
box.
                     c.      San Jose Police Officer Marco Monzon
       Monzon was dispatched in response to a report of a disturbance at the complex
where the Tators lived. On arrival, he spoke to some witnesses and tried to find out if
any surveillance cameras were in the area that might have recorded some of the events.
Monzon searched the Tators’ car and said “[m]iscellaneous items were kind of tossed
around. The glove box and the center console were both open.” He could not recall if
any of the car’s doors were open when he first approached it, but the right rear passenger
window was rolled down. Neither the ignition nor the door locks showed any signs of
tampering.
       In the rear passenger seat, Monzon discovered a black backpack with the word
“Savage” written on it. He searched the backpack, but none of the items inside it
belonged to the Tators.




       4
        The neighbor, Michael Hutchens, testified for the defense and clarified that this
was “trainer” OC spray, with pressurized water, rather than pepper spray.
                                            5
              2.     Defense case5
       The minor testified she was at friend’s house with her younger sister on the
evening of January 28, 2015. The three of them left the house around 6:00 p.m. and went
out to a park. At some point, the three girls were joined by the minor’s (male) cousin and
they ended up on Judith Street where another friend lived.
       The minor had hoped to stay overnight at this friend’s house, but the group had to
leave around midnight. Around 1:30 or almost 2:00 a.m., they noticed a car outside a
garage with a window down. She unlocked the door and they got in. The minor only
wanted to get warm and sleep until morning. She denied entering the car in order to steal
its contents and denied taking anything from the car at any time.
       She and her friends were in the car “for a while” before a woman (Stefanie) came
out and angrily said, “Get out of my car.” At first, the minor was frightened and did not
say anything, but when Stefanie said, “Get the F out of my car,” the minor opened her
door and got out. Her friends got out of the car too.
       Stefanie told the minor and her friends to leave, but they told her they would not
leave the apartments. Stefanie got mad and started cursing at them. The minor threw a
water bottle at her, then she and her friends ran away. However, Stefanie managed to
catch the minor’s sister and had her in a chokehold. The minor and the other two went
back to help her. The minor told Stefanie to let her sister go, but she said no. The minor
grabbed Stefanie’s hand and struggled with her for a couple minutes, when Stefanie’s
husband (Timothy) came running out asking, “Why are you on my wife?”
       The minor and her companions started running away again, but Timothy was able
to catch the minor’s sister and put her in a chokehold. The minor came back to help her


       5
         The defense also called Michael Hutchens to testify, but his testimony related
only to the altercations he witnessed between the Tators and the minor and her
companions. None of his testimony was relevant to the auto burglary charge which is the
only issue the minor raises on appeal.
                                             6
sister. She pushed Timothy, who got angry and they started throwing punches at each
other. Timothy hit her five or six times, knocking her down twice. She denied ever
hitting Stefanie or jumping on her back, though she said Stefanie bit her on the finger
when the minor was trying to free her sister from the chokehold.
       She stopped fighting with Timothy, and she and her sister and friend all ran off. A
short time later, she saw that her sister had been caught by someone and placed in
handcuffs. The minor thought “it was done for her” so she left. A police car drove past
her and her friend, and she was stopped and handcuffed.
              3.      Jurisdictional findings and disposition
       On March 23, 2015, the juvenile court found true the allegations in the petition as
to all three counts. As to the burglary allegation, the trial court stated, “Count 2 is a little
more difficult for me. But as I think it through, the sequence seems to be that everybody
gets out of the car, Stefanie says, ‘Leave, so I won’t have to call the cops,’ and something
starts flying, and somebody throws something at her. And that something, I think, is
from inside the car. They are things from inside the car. How did they have those things
if they didn’t take them with them and already have it on them when they—when they
got out of the car? [¶] . . . So I think circumstantially the evidence is there for count 2.”
       On April 21, 2015, the juvenile court declared the minor a ward of the court,
released her to her father’s custody under the supervision of probation, with standard
terms and conditions, and further ordered that she be subject to electronic monitoring for
45 days.
II.    DISCUSSION
       A.     Sufficiency of the evidence to support burglary allegations
       The minor argues there was insufficient evidence presented to show she
committed auto burglary, specifically that she had the necessary felonious intent at the
time she entered Stefanie’s car.


                                               7
              1.      Standard of review
       “ ‘To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Wallace (2008) 44 Cal.4th 1032, 1077, quoting People v. Kipp
(2001) 26 Cal.4th 1100, 1128.) “ ‘ “If the circumstances reasonably justify the trier of
fact’s findings, the opinion of the reviewing court that the circumstances might also be
reasonably reconciled with a contrary finding does not warrant a reversal of the
judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 933, quoting People v. Hillery
(1965) 62 Cal.2d 692, 702.) “The standard of review is the same when the prosecution
relies mainly on circumstantial evidence.” (People v. Valdez (2004) 32 Cal.4th 73, 104.)
              2.      Legal principles regarding burglary
       Section 459 provides in pertinent part: “Every person who enters any . . . vehicle
as defined by the Vehicle Code, when the doors are locked, . . . with intent to commit
grand or petit larceny or any felony is guilty of burglary.” The crime of burglary has two
elements: (1) unlawful entry; accompanied by (2) the intent to commit theft (either
felony or misdemeanor) or any other felony. (§§ 459, 490a; People v. Montoya (1994) 7
Cal.4th 1027, 1041 & fn. 8 (Montoya).) The intent to commit the underlying theft or
felony must exist at the time of entry. (People v. Holt (1997) 15 Cal.4th 619, 699.)
However, “[o]ne may be liable for burglary upon entry with the requisite intent to
commit a felony or a theft . . . , regardless of whether . . . any felony or theft actually is
committed.” (Montoya, supra, at pp. 1041-1042.)
       “The intention with which an accused [unlawfully] enters . . . is a question of fact
and where the circumstances of a particular case and the conduct of the accused
reasonably indicate his [or her] purpose in doing so is to commit a [theft] or any felony[,]
a verdict of guilty of the crime of burglary will not be disturbed on appeal.” (People v.
                                                8
Kittrelle (1951) 102 Cal.App.2d 149, 156.) Intent is rarely susceptible of direct proof,
and therefore it may be inferred from all the facts and circumstances disclosed by the
evidence. (People v. Matson (1974) 13 Cal.3d 35, 41.) “[I]n showing that a defendant
entered . . . with felonious intent, the [prosecution] can rely upon reasonable inferences
drawn ‘from all of the facts and circumstances disclosed by the evidence,’ since felonious
intent is rarely proven through direct evidence.” (In re Anthony M. (1981) 116
Cal.App.3d 491, 501.) “Where the facts and circumstances of a particular case and the
conduct of the defendant reasonably indicate his purpose in entering the premises is to
commit larceny or any felony, the conviction may not be disturbed on appeal.” (People
v. Nunley (1985) 168 Cal.App.3d 225, 232.)
              3.     Analysis
       On appeal, the minor does not dispute that she and her companions unlawfully
entered Stefanie’s vehicle; instead, she challenges only the sufficiency of the evidence to
support the intent element of the crime.
       Our prior opinion in In re Leanna W. (2004) 120 Cal.App.4th 735 (Leanna W.), is
instructive. There, we reversed the juvenile court’s jurisdictional finding because there
was insufficient evidence that Leanna had the specific intent to commit theft. Leanna
was charged with burglary for entering her grandmother’s house without permission
while her grandmother was out of town and throwing herself a going-away party,
entertaining up to 40 guests aged 15 to 20 years old. (Id. at p. 739.) During the party, in
addition to damaging the premises in various ways, the guests used grandmother’s
utilities and drank her alcohol, ordered pay-per-view content from the grandmother’s
DirecTV account, and took cash and jewelry from the home. (Id. at pp. 738-740.) We
found the evidence insufficient to support a finding of intent to commit burglary because
there was no evidence that Leanna—as opposed to one or more of her 30 or 40 guests—
actually used the utilities, drank alcohol, placed orders with the cable providers, or stole


                                              9
jewelry and money, or that Leanna entered the house with the intent to do any of those
things. (Id. at pp. 742-743.)
       Similarly, the evidence here showed that Stefanie came outside around 2:00 a.m.
to discover the minor and three others sitting in her car. She confronted them and they
(eventually) exited her vehicle. After Stefanie was struck in the face, she headed away
from the group toward her home in order to call the police. As she did so, various objects
flew past her head, and she recognized these objects as things that had been located in her
car’s glove box and center console.
       The juvenile court reasoned that the minor and her companions had to be in
possession of the items thrown at Stefanie when they got out of her car, but in so
reasoning, it ignored the possibility that the four had sufficient time to reenter the car in
order to find things to throw. Stefanie never saw who threw the items at her. Stefanie’s
back was turned to the group as she walked back toward her house and thus could not see
if they were rifling through her vehicle for ammunition or pulled the items from their
pockets, backpacks or purses before throwing them at her. There was no testimony that
the objects flew at her all at once as opposed to serially. Timothy testified he saw one of
the four throw something at his wife, but he did not say that he saw the thrower pull the
object from a pocket or backpack or purse prior to throwing it. There was no testimony
as to which of the four threw any items from the car at Stefanie, nor was there testimony
that the thrower(s) had possession of any of these objects prior to exiting the car.
       Furthermore, there was no testimony that any of the items taken from the car and
thrown at Stefanie were, at any time, in the minor’s possession. The only object she
admitted throwing was a water bottle which did not come from Stefanie’s vehicle. Just as
in Leanna W., there was no evidence that the minor—as opposed to her three
companions—was the one who took the items from Stefanie’s vehicle, or that she entered
the vehicle with the intent to commit a theft or other felony. (Leanna W., supra, 120
Cal.App.4th at pp. 742-743.)
                                              10
       In sum, there is not substantial evidence to support a finding that the minor
committed burglary of Stefanie’s vehicle, specifically that the minor had the necessary
intent to commit a theft or other felony at the time she unlawfully entered the vehicle.
The juvenile court erred in finding the allegation of burglary true.
III.   DISPOSITION
       The dispositional order is reversed. The matter is remanded to the juvenile court
with directions to enter a new order striking the true finding as to the Penal Code
sections 459 and 460, subdivision (b) allegation in count 2 of the petition filed under
section 602 of the Welfare and Institutions Code. The true findings as to the Penal Code
section 245, subdivision (a)(4) allegation in count 1 and the Penal Code sections 242 and
243, subdivision (a) allegation in count 3 are to be reinstated. The juvenile court is to
conduct a new dispositional hearing at which it shall recalculate the maximum time of
confinement.




                                             11
                             Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Márquez, J.




The People v. A.S.
H042302
