NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A110992

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1 Filed 7/27/06 In re Kevin A. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR In re KEVIN A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KEVIN A., Defendant and Appellant. A (Humboldt County Super. Ct. No. JV050051) A Del Norte County juvenile petition filed in February 2005 asserting that appellant Kevin A. came within the provisions of Welfare and Institutions Code section 602 alleged second degree burglary of a vehicle, receiving stolen property, misdemeanor possession of methamphetamine, and reckless driving. Appellant admitted the possession count and the matter proceeded to a contested hearing on the remaining allegations, which the court sustained. As appellant was a resident of Humboldt County, the court transferred the case to that county for disposition. The court declared appellant a ward and placed him on probation, with the maximum time of confinement set at four years, four months and 25 days. This appeal followed. We reverse the judgment as to the reckless driving, burglary and receiving stolen property counts and affirm as to the possession count. 1

2 I. FACTUAL BACKGROUND On the afternoon of February 3, 2005, Carl Lafazio locked his truck and went surfing at Endert s Beach. Returning to his truck around 4:00 p.m., Lafazio saw a man later identified as David Stone inside the truck trying to pry out the amplifier. Lafazio described the intruder as wearing a green baseball cap, green sweatshirt and blue jeans. He had curly, blondish hair, down to the collarbone. Lafazio s truck window was shattered. He yelled at Stone, who took off running, dropping Lafazio s wallet in the process. Stone ran to a white Jeep Cherokee. Someone standing outside the Jeep opened the door for Stone. They both jumped in and the Jeep took off. Lafazio thought there were two, maybe three, others in the Jeep with Stone. The driver sped to a dead-end road, did a big old burnout and came back around, swerving at Lafazio and two of his friends. All the while items were dropping out of the Jeep. According to Lafazio, the driver was a male with short black hair who had like a hood pulled up over his head and you know, he was going so fast when he came by it was really hard to pinpoint.... [ ]... [ ]... [The defendant is] similar to him. You know, short hair. I don t know if he had a hood on or what, but.... [ ]... [ ]... I can t completely be one hundred percent sure.... Further, the driver s hair looked dark and like he had a hood on. So I can t really, you know, say if it was if he was a brunette or what, but it looked like he had a hood pulled up, you know, but it looked like it was black up here. [ ]... [ ]... I thought I could see a little hairline right here. Lafazio was positive that Stone was not the driver. Stone initially jumped into the back of the Jeep. And, unless they switched, he was not driving when the Jeep turned around. Shawn Eckart was also at the beach at the time and saw someone flee from Lafazio s car to the Jeep. Eckart pursued the Jeep. During the chase stuff was falling from the Jeep onto the road. The Jeep got stuck in a ditch. Eckart saw two people in the Jeep. He could not identify either one, but said the driver looked 2

3 really calm for whatever he was doing. [ ]... [ ]... Looked really focused. He was in a zone. Eckart thought the driver had a hat but I don t know. I couldn t say that for sure. Del Norte County Sheriff Sergeant Gene McManus arrived at the scene. A checkbook in the name of Leslie Michael was on the ground next to the Jeep. She was the victim of a vehicle theft earlier that day. Numerous other items of property were in the Jeep. Lafazio later identified a cell phone charger, some cash, a knife and other items that belonged to him. The Jeep was registered to Stone. Sergeant McManus broadcast Stone s description over the air. Stone was located nearby; Lafazio identified him. Stone provided a description of the other people in the vehicle. Appellant, Justin Potter and Devin Anderson-Spannus were found an hour or so later by an off-duty ranger. Potter had almost a shaved head and did not resemble appellant except for being Caucasian. Anderson-Spannus is a female. Sergeant McManus asked these individuals if they knew Stone and whether they had been in the vehicle with him during the chase. They did, and they had. McManus arrested appellant, Potter and Anderson-Spannus. Appellant admitted being present when Stone broke into the truck, but denied taking any part in the actual theft. All four had been together since the previous day, gambling, and consuming methamphetamine. Appellant was present when Stone stole items from two or three separate cars but insisted that he was not involved in those thefts. He expressed discomfort at being present during the thefts. However, he did not want to leave the vehicle because he was afraid to call his father to pick him up. Defense Appellant testified that he was in the Jeep when Stone committed the burglaries but was never behind the wheel. He had smoked a lot of methamphetamine that day and was pretty messed up. After the first theft, appellant and Potter tried hitchhiking home for a couple hours because they did not want to deal with the stuff [Stone] was dealing in. Stone went to the casino again 3

4 and eventually picked them up and headed for the beach where the Lafazio incident occurred. At the Endert s Beach parking lot appellant was sitting in the back of the car on the right side. Stone was driving the whole time. Anderson-Spannus was in the front passenger seat and Potter was in the left rear seat. He did not think anyone else got out of the Jeep when Stone exited at Endert s Beach, although someone [m]ight have stretched or something. He was not aware that when Stone ran back, someone was standing outside and opened the door for him. II. DISCUSSION A. Sufficiency of Evidence Appellant challenges the sufficiency of the evidence to sustain the reckless driving, receiving stolen property and burglary allegations. This challenge is valid. 1. Reckless Driving The prosecutor argued that appellant was the only one who matches the description of the driver as male with dark hair, pointing out that Potter had a shaved head and Stone had blond curly hair. The court credited the testimony of Mr. Lafazio that Mr. Stone was not the driver and I do find beyond a reasonable doubt... that indeed the driver was this minor Kevin A[]. Appellant contests his conviction for reckless driving, arguing that there was insufficient evidence that he was the driver. The standard of review is as familiar as a common nursery rhyme: In resolving claims involving the insufficiency of evidence, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (People v. Marshall (1997) 15 Cal.4th 1, 34.) The supporting evidence must be substantial, that is, evidence that reasonably inspires confidence and is of solid value. [Citations.] (Ibid.) This same standard applies in juvenile proceedings. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605.) 4

5 The evidence with respect to identifying the minor as the driver of Stone s vehicle does not withstand substantial evidence scrutiny. Lafazio was not sure that the minor was the driver. He was not sure if the driver had a hood, or what color was his hair. He thought he saw a little hairline. At one point he said he thought the driver had short black hair, but later was not even sure the driver was a brunette. The speed of the vehicle made it difficult to pinpoint the suspect s characteristics. Eckart could not identify the driver. His only observation was that the driver may have been wearing a hat and appeared focused. Stone, the owner of the vehicle, was wearing a hat. Given the speed of the vehicle, the time a late afternoon winter day and the possibility that the driver had a hood, a person with a shaved head could not be ruled out. Nor could a female, given there was no description of her. Lafazio s testimony that Stone was not the driver was based on the fact that Lafazio stated Stone jumped into the back of the Jeep on the right passenger side. According to Lafazio, Stone could not have been driving when the vehicle came back unless they switched down there at the house. Based on the above we conclude the evidence was insufficient to sustain the reckless driving count of the petition. 2. Receipt of Stolen Property To sustain a stolen property count, the People must prove that (1) the property was stolen; (2) the defendant knew the property was stolen; and (3) the defendant had possession of it. (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.) Possession may be actual or constructive. [I]t is sufficient if the defendant acquires a measure of control or dominion over the stolen property. However, mere presence near the stolen property in and of itself is insufficient evidence of possession to sustain a conviction for receiving stolen property. (Ibid.) People v. Myles (1975) 50 Cal.App.3d 423 is helpful. There, the defendant was a passenger in a vehicle owned and driven by another. At one point the vehicle stopped and one of the two opened the trunk, looked inside and shut it. Several others were in the same location looking 5

6 into the trunk. It contained two stolen television sets. The reviewing court concluded that these facts were insufficient to establish possession. Mere access or proximity to stolen goods is not sufficient to infer possession; dominion and control must be shown. (Id. at p. 429.) With the reversal of the reckless driving count, we have no substantial evidence that appellant was driving the vehicle. It belonged to Stone, the adult. Although appellant admitted to being in the car when Stone broke into Lafazio s truck, and when Stone committed another theft, appellant said he was not involved in any of the thieving. He was messed up on methamphetamine. There was no evidence that he exercised dominion and control over the property and thus this count must also fail. Nor was there any evidence that appellant encouraged or assisted in promoting Stone s activities, so as to sustain an aiding and abetting theory. 3. Aiding and Abetting the Burglary The court found appellant to be an aider and abettor of the burglary. [T]he weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) To reiterate, with no substantial evidence to support a finding that appellant was the driver, where is there substantial evidence of any act of aiding and abetting the commission of Stone s burglaries? There is none. 6

7 III. DISPOSITION We affirm the judgment as to misdemeanor possession of methamphetamine, reverse as to the other counts, and remand for a new dispositional hearing. In light of this disposition, we need not address appellant s remaining contentions. Reardon, J. We concur: Ruvolo, P.J. Rivera, J. 7