California Court of Appeal May 23, 2016 No. D068381Unpublished
Filed 5/23/16 In re Jacob H. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JACOB H., a Person Coming Under the Juvenile Court Law. D068381 THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. JCM236886)
v.
JACOB H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Robert J.
Trentacosta, Judge. Affirmed.
Amada L. Fates, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
In this juvenile delinquency case, a petition was filed in the juvenile court alleging
Jacob H. (the Minor) violated Penal Code1 section 496, subdivision (a) (receiving stolen
property in an amount less than $950), a misdemeanor. At the jurisdictional hearing, the
Minor admitted the allegations in the petition. At that time the court stated "that the
maximum time in custody based upon this admission is one year."
During the jurisdictional hearing, defense counsel asked the court: "I am asking
the court in the interest of justice to set the maximum term of confinement at six months,
given that the maximum currently allowed for receiving stolen property is one year and
post Prop 47 the actual theft offense itself would be a six month maximum." The court
denied the request without comment.
Notably missing in the defense counsel's comments is any reference to equal
protection. It is also problematic that counsel made the "comment" at the jurisdictional
hearing and did not make any further requests weeks later at the dispositional hearing
where any punishment or restrictions would be decided. As a result, we have no record
to illuminate any similarities or differences that may allegedly exist between someone
convicted of petty theft and one who was found to have received stolen property of less
than $950 in value.
We believe it was the Minor's responsibility to raise the issue of equal protection
in the juvenile court and that failing to do so constituted a forfeiture of the issue on
appeal. (People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14.)
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Although we find the issue has been forfeited, we will discuss the merits of the
Minor's claim.
C. No Maximum Term Has Been Set
To the extent this equal protection challenge is an as-applied challenge, we note no
maximum term has actually been set. The remarks of the court at the jurisdictional
hearing were in the context of informing the Minor of the potential consequences of the
admission. The court did not set a maximum term at that stage.
At the dispositional hearing the court did not remove the Minor from his parents'
custody, nor did the court impose any confinement. Instead the court ordered home
placement and probation, subject to various conditions. Thus, the court was not required
to set a maximum term at jurisdiction and to the extent the court attempted to do so, it
was a legal nullity. (In re P.A. (2012) 211 Cal.App.4th 23, 30; In re Ali A. (2006) 139
Cal.App.4th 569, 571.)
We think there remains a facial challenge to the statutory differences within the
claims the Minor makes here. Accordingly, we will proceed to discuss the merits of the
equal protection contention.
D. Analysis
The Minor concedes he is not proceeding as a member of a protected classification
and thus strict scrutiny is not required. He also concedes the standard for evaluating
differences where similarly situated persons are treated differently is the rational
relationship test.
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He does contend that persons who commit petty theft and persons who commit
misdemeanor receiving are similarly situated. He has not offered any proof that such
offenders are similar, other than in the value of the property involved. The Minor has
offered no studies or case law comparisons of the relative culpability of the thief versus
the "fence," other than his bare assertion that such is the case. Therefore, we have
nothing from which we could draw a conclusion that the statutory schemes for theft and
receiving stolen property do not bear any rational relationship to a legitimate state
interest. Nor do we have any basis to conclude the different offenders are similarly
situated. All we have in this record is the factual circumstances of the Minor's offense.
To the extent the facts of this case illustrate anything it is that the Minor was not similarly
situated to the thieves.
It appears from our scant record that the Minor received a number of stolen wallets
from two other students, who were the actual thieves. These involved thefts by at least
two people, from a number of victims over a period of several months. The Minor
constructed a scheme to use a fraudulent account and false address in order to profit from
the stolen goods supplied to him by the thieves. Experience suggests, and the record does
not refute, that persons who act as "fences" may receive goods from multiple thieves over
time. We cannot say that in all cases, or in this case that the thieves and receivers are
similarly situated or that the statutes lack a rational relationship to a legitimate state
interest. The Minor has not carried his burden to demonstrate a violation of state or
federal principles of equal protection. (People v. Hofsheier, supra, 37 Cal.4th at
p. 1200.)
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DISPOSITION
The dispositional order of the juvenile court is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
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AI Brief
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Holding. The court held that the minor forfeited his equal protection challenge by failing to raise it in the trial court, that the issue was not ripe for review because no maximum term of confinement had been imposed, and that the minor failed to meet his burden of showing that the statutory sentencing difference between petty theft and receiving stolen property lacks a rational basis.
Issues
Whether the one-year maximum punishment for misdemeanor receiving stolen property violates equal protection principles compared to the six-month maximum for petty theft.
Whether the minor forfeited his equal protection claim by failing to raise it in the juvenile court.
Whether the equal protection claim is ripe for review when no maximum term of confinement was actually imposed.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“First, we will find the issue forfeited for failure to raise it in the trial court.”
“Next, the issue is not ripe for review because the court at the jurisdiction hearing did not impose any term.”
“The Minor has not carried his burden to demonstrate a violation of state or federal principles of equal protection.”