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In Re V.S., A Person Coming Under the Juvenile Court Law. v. V.S

COURT OF APPEAL, FOURTH APPELLATE DISTRICT STATE OF CALIFORNIA DIVISION ONE


December 1, 2010

IN RE V.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
V.S., DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza and George W. Clark, Judges. (Super. Ct. No. J223-384)

The opinion of the court was delivered by: Huffman, Acting P. J.

In re V.S.

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Reversed with directions.

Following an adjudication hearing, the juvenile court made a true finding that V.S. (the minor) knowingly received or withheld stolen property (Pen. Code,*fn1 § 496, subd. (a)). The court denied the minor's request to reduce the offense to a misdemeanor and placed the minor on probation.

The minor appeals contending there is insufficient evidence to support the true finding and that the court abused its discretion in denying his request to reduce the offense to a misdemeanor. We will find the evidence insufficient to support the true finding. In light of that conclusion it is not necessary to address the remaining contention.

FACTS AND PROCEDURAL BACKGROUND

V.S. was originally charged with vandalism with damage under $400 (§ 594, subds. (a) and (b)(2)(A), count 1), throwing a substance at a vehicle on a highway (Veh. Code, § 23110, subd. (a), count 2), and knowingly receiving or withholding stolen property (§ 496, subd. (a), count 3). After the presentation of the prosecution's case at the adjudication hearing, the court dismissed counts 1 and 2 for lack of sufficient evidence.*fn2 The court made a true finding on count 3.

The charge of violating section 496, subdivision (a), arose from the theft of a bicycle belonging to Bryan Sanchez. The theft took place at around 11:00 p.m. on July 5, 2009 at a Walgreen's store in the city of Chula Vista. Sanchez had parked his bicycle outside the store. After a few minutes he observed someone wearing a white or grey shirt take the bike. When he next observed the bike he thought there may have been three people then around the bike.

Sanchez stopped Chula Vista Police Officer Steve Szymczak and reported the theft of his bike. Not long after he contacted the officer, Sanchez was notified that police had likely found the bike. Sanchez and his mother returned to the area where the police were located.

Sanchez identified the bike as his. He also stated that the person with the white shirt was probably the one he had seen taking the bike. Sanchez did not identify V.S. as the thief.

Szymczak testified that after his contact with Sanchez he encountered three boys with a bike that matched the description of the one stolen from Sanchez. One boy was riding the bike and another was seated on the handlebars. V.S. was riding a skateboard next to the bike. One of the two other boys owned the skateboard.

V.S. told the officer that he had met one of his friends who told him the friend had taken the bike. When a person, who V.S. thought might be the owner of the bike, called to them, V.S. started running. When he was stopped by police V.S. was riding the skateboard that belonged to a friend, Castro-Gonzalez.

The officer did not testify to the identity of the alleged thief nor did he identify the owner of the skateboard. There was no testimony as to whether Castro-Gonzales was one of the three boys involved with the bike. There was no evidence that V.S. had touched the bike.

DISCUSSION

V.S. contends the evidence is insufficient to support a finding that he knowingly possessed or withheld stolen property. He specifically argued the evidence does not support a finding that he aided or abetted the thief in withholding the bike from its owner. Our review of the record leads us to conclude the evidence does not support a true finding on this offense, either as a principal or as an aider and abettor. Accordingly, we will reverse the true finding with directions to dismiss the petition.

When we review a claim of insufficiency of the evidence we examine the entire record, drawing all reasonable inferences in support of the trial court decision. We do not make credibility decisions or undertake to weigh the evidence. The question we must decide is whether, under the proper standard of review, there is sufficient substantial evidence from which a reasonable trier of fact could find each element of the offense beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.)

Although this case arises from a juvenile court finding, the burden of proof is the same as that used in adult criminal proceedings. That is, the prosecution must prove each element of each offense beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 368; In re Jose R. (1982) 137 Cal.App.3d 269, 275.)

In order to convict a person of knowingly receiving or withholding stolen property the prosecution must show that the person actually received stolen property or aided in concealing or withholding that property. (People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336; CALCRIM No. 1750.) Mere presence at the scene is not enough to establish knowing possession. (People v. Myles (1975) 50 Cal.App.3d 423, 428-429.)

In order to prove a person aided or abetted another in possessing stolen property it must be established that such person knew the property was stolen and intended to aid another in either receiving or withholding the property and that the person, by words or deeds in fact aided the perpetrator in either receiving or withholding the property. (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1501-1502.) Aiding and abetting requires some affirmative act. Mere presence is not enough. (People v. Weber (1948) 84 Cal.App.2d 126, 130.)

Applying the appropriate standards to the record in this case demonstrates the evidence is entirely insufficient to support a true finding. Drawing all reasonable inferences in favor of the true finding, the facts show that V.S was aware that an unidentified friend took the bike. It also shows that whoever the thief might have been, it was not V.S. And, while the evidence shows that the thief was one of the boys on the bike when stopped, it does not establish the identity of that person.

What then is the basis of the finding of culpability in this case? The court and the prosecution relied on the fact that V.S was riding a skateboard next to the bike. The skateboard belonged to Castro-Gonzalez, whoever that person might be. The court, however concluded that the skateboard belonged to the thief and that by riding on the skateboard, V.S. facilitated the thief in withholding the property. Apparently the court's theory was that the thief needed someone to ride the skateboard so that he could ride the bike. The fatal weakness of that analysis is that there is no evidence as to who the thief was in this case. Nor is there any evidence that the skateboard belonged to the thief, let alone that the thief needed V.S. to ride the skateboard.

In short, the evidence merely shows that V.S. was with someone he knew to be a thief. There is absolutely no evidence in this record that V.S. did anything, by either word or deed, to assist the thief in withholding the stolen property. As is well established, mere presence, even with knowledge of another person's crime, is not enough to support liability as an aider and abettor.

Since the evidence presented in the juvenile court is insufficient to support the true finding on the only count remaining in the position, we reverse the finding with directions to dismiss the petition.

DISPOSITION

The true finding on count 3 of the petition is reversed. The juvenile court is directed to dismiss the petition.

WE CONCUR: McDONALD, J. AARON, J.


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