People v. Christopher S.

Opinion

FEINERMAN, P. J.

Christopher S. appeals from an adjudication of the juvenile court, declaring him a ward of the court (Welf. & Inst. Code, § 602) and placing him in the custody of the California Youth Authority for a period not to exceed three years. The trial court’s order was based upon a finding that the appellant had received stolen property (Pen. Code, § 496). Appellant was given 48 days credit for the time he was detained prior to adjudication.

[622]

Appellant contends that the court sentenced him on an offense with which he was not charged and which could not be considered a lesser included offense of the offense charged. Alternatively, appellant contends that even if receipt of stolen property could be deemed a lesser included offense of the theft-related burglary charged, there was insufficient evidence to support the court’s finding.

Background

On December 24, 1984, Lee Burton Davidson (Davidson) was arrested and taken to county jail. When he returned home two weeks later, Davidson found several items missing from his house, including a portable floor safe, a Sharp 13-inch television set, two chain saws, a turntable, a cassette player, a clock radio, a telephone answering machine, a shotgun and at least two containers of pennies.

On December 25,. 1984, appellant’s mother saw appellant’s brother, Gregory (Greg), open the back door of their home for Greg’s friend David, who was carrying a Sharp 13-inch color T.V. Later that evening, Greg went to the home of a neighbor, Vernon Burt (Burt), to borrow a blowtorch. Around this same period of time, appellant and his brother borrowed other tools from Burt, including a drill, a hacksaw, and a sledgehammer.

Burt asked appellant, “What are you trying to do, are you trying to bust the safe open, or something” and appellant responded that he was. While standing near the fence which separated his own backyard from that of appellant’s, Burt saw appellant and another boy breaking into a safe with Burt’s sledgehammer.

Burt saw the boys remove some papers and two plastic glasses of pennies from the safe. Among the papers was a pink slip which Burt asked appellant to bring to him. On the pink slip were the name and address of Davidson, from whose home the safe had been stolen. The home in which appellant lived was about seven or eight houses away from that of Davidson’s.