In Re DCL

82 Cal.App.3d 123 (1978) 147 Cal. Rptr. 54 In re D.C.L., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent,

v.

D.C.L., Defendant and Appellant.

Docket No. 43067. Court of Appeals of California, First District, Division Four.

June 26, 1978. [124] COUNSEL

Thomas V. Roland for Defendant and Appellant.

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Timothy A. Reardon and Herbert F. Wilkinson, Deputy Attorneys General, for Plaintiff and Respondent.

[125] OPINION

CHRISTIAN, J.

D.C.L. appeals from an order by which he was made subject to the supervision of the probation department after the juvenile court found him to be a person coming within Welfare and Institutions Code section 602, in that he trespassed upon residential property in violation of Penal Code section 602.5.[1]

A neighbor of Steven George called the police to report that he had seen two juveniles, strangers to the neighborhood, go up a private driveway in the direction of George's property. When the police arrived, they saw appellant, accompanied by an associate, come out of a shed associated with the George property; appellant was carrying a kite model. When appellant saw the officers, he quickly went back into the shed and put back the kite. A distinctive knife which the owner had stored in a box had been removed from the box and left on a countertop. In the hearing of a police officer, appellant remarked to his companion, "This is no big deal; ... the judge will probably just drop this down to another trespassing."

Wardship was sought upon an allegation that appellant had committed burglary. The court, however, declared, "I'm not going to make a finding of burglary" and instead found a trespass, in violation of Penal Code section 602, subdivision (l). At a later session the court indicated that it felt the finding would not withstand attack on appeal. (1), (2) The court then made a finding under Penal Code section 602.5, despite the fact that defense counsel pointed out that the shed which appellant had entered was not a "dwelling house, apartment, or other such place" within the meaning of the statute.