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In re E.P

California Court of Appeals, Fourth District, Third Division

May 24, 2018

In re E.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
v.
E.P., Defendant and Appellant.

          Appeal from a judgment of the Superior Court of Orange County, No. 16DL0229 Lewis W. Clapp, Judge. Reversed in part and affirmed in part.

          Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier 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.

          OPINION

          ARONSON, ACTING P. J.

         The 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.

         I

         Factual and Procedural Background

         Anaheim 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.

         On 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.

         Three 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.

         Anaheim 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 room.

         Officer 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.

         In 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 ...


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