California Court of Appeals, Fourth District, Third Division
In re E.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
E.P., Defendant and Appellant.
from a judgment of the Superior Court of Orange County, No.
16DL0229 Lewis W. Clapp, Judge. Reversed in part and affirmed
Gambale, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal and Michael Pulos, Deputy
Attorneys General, for Plaintiff and Respondent.
ARONSON, ACTING P. J.
juvenile court found minor E.P. committed second degree
burglary (Pen. Code, §§ 459, 460, subd. (b) [count
1]; all statutory references are to the Penal Code unless
noted), possession of graffiti tools (§ 594.2, subd. (a)
[count 2]), receiving stolen property (§ 496, subd. (a)
[counts 4-6]), and illegal possession of an alcoholic
beverage (Bus. & Prof. Code, § 25662, subd. (a)
[count 7]). E.P. contends we must reverse the burglary
finding (count 1) because the evidence shows he committed the
new crime defined by the Legislature as shoplifting, but not
burglary. He further asserts we must reverse the findings he
received stolen property (counts 4-6) because he cannot be
convicted of both shoplifting and receiving the same
property. We agree and therefore reverse the findings on
these counts, and affirm count 2.
and Procedural Background
ICE is a public ice hockey facility with two
professional-sized ice rinks and a shop. Between the ice
rinks are offices, referee locker rooms, and locker rooms for
the players, who must pay to use the rink.
December 22, 2015, between 10:00 and 11:00 p.m., a hockey
referee working a game spotted E.P. and a companion lingering
around the locker rooms. The pair walked in and out of the
locker rooms several times.
players reported items missing from the locker room. One
player stated someone had stolen his keys, cell phone, and
wallet from his jacket, which he had placed on a locker room
bench. A second player reported his pants, wallet, keys, and
phone were missing from the bag he left in the locker room. A
third player stated someone had taken his wallet, containing
credit cards, an amusement park annual pass, and his cell
phone from the pants he left on a locker room shelf.
police officers responded promptly and detained three youths,
including E.P., outside a closed fast food restaurant about a
block and a half from the rink. E.P. consented to a search,
and officers discovered the property stolen from the locker
Olmedo arrested E.P., advised him of his Miranda
rights and questioned him about the thefts. E.P. admitted
possessing the spray paint can officers also found in his
possession, explaining he was a tagger, but he initially
denied involvement in the thefts. During a later
conversation, E.P. admitted he went inside the facility to
watch hockey with another “kid” he could not
identify. This youth took “stuff” from the locker
room and ran out the back of the facility. E.P. eventually
admitted stealing a wallet, cell phones, a jersey, an alcohol
bottle, and credit cards from the locker room.
August 2016, the juvenile court sustained the allegations of
the petition. In rejecting E.P.'s challenge to the
burglary charge, the court concluded the ice rink's
locker rooms were not part of the commercial establishment
and the crime of shoplifting required the offender to steal
from the business, not from private ...