Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. FJ38209, Rudolph A. Diaz, Judge.
Judith Vitek, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Jose L., a minor, appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 by reason of his having committed two acts of grand theft person (Pen. Code, § 487, subd. (c), counts 1 & 2) and making a criminal threat (Pen. Code, § 422, count 3). The juvenile court placed appellant on home probation with a maximum term of confinement of four years four months, imposing as a condition of probation that appellant not receive school grades of “F,” “D,” or “U.” Appellant contends that (1) the findings that he committed two acts of grand theft person must be reversed because they are unsupported by sufficient evidence of an intent to steal, (2) the finding that he made a criminal threat must be reversed because it is unsupported by evidence of sustained fear, (3) the trial court abused its discretion in imposing as a condition of probation that appellant not receive school grades of “F,” “D” or “U,” and (4) the juvenile court erred in setting a maximum term of confinement.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Counts 1 and 2 were initially alleged as second degree robbery (Pen. Code, § 211) but were amended to grand theft person. The juvenile court also dismissed an allegation that appellant used a knife within the meaning of Penal Code section 12022, subdivision (b)(1).
We modify and affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
Twelve-year-old Jesse G., appellant and appellant’s brother, Jaime, were friends, often playing at each others houses. Sometimes Jesse lent video games to appellant, although Jesse’s mother became angry when he did.
In December 2005, Jesse’s and appellant’s relationship changed when Jesse accused appellant of stealing one of Jesse’s video games. Jesse told his mother, who went to appellant’s house to retrieve it. Afterwards, Jesse could no longer go to appellant’s house.
In January or February 2006, after the incident with the stolen video game, appellant began acting differently towards Jesse. Five or six times at school, he told Jesse to “‘[l]et [him] have some money’” and that he would beat Jesse up if he did not. Believing appellant was serious, Jesse would give him $1, even though Jesse did not owe him money. On one occasion, when Jesse refused to pay, appellant socked him softly on the arm. The other times, appellant simply walked away. Jesse did not complain to his mother or authorities when appellant was making the demands for money.
According to Jesse, appellant made these requests “in a nice way.”
Jesse testified that he did owe Jamie $1.
March 1, 2006 was Jesse’s birthday. As was the custom at his school, he was greeted, teased, and punched by everyone. Appellant approached him and asked formoney, displayed a knife and told Jesse that he was going to “shank him.” No one else saw the knife. Jesse was “scared” but had no money. Appellant put the knife back in his pocket and walked away.
Before the knife incident, appellant told Jesse that when appellant graduated from eighth grade, he was going to leave someone behind to beat up Jesse.
Jesse did not immediately tell his mother about appellant’s conduct because he feared appellant would beat him up if he “snitched.” But Jesse reported the knife incident the next day because he saw appellant and other boys throw a stink bomb and eggs at Jesse’s house. Jesse spoke with police, and thereafter stopped playing with appellant.
Jesse gave conflicting testimony regarding when he stopped playing with appellant. While testifying that he could not go to appellant’s house after the alleged theft of his video game, he also testified that he continued playing with appellant and going to his house until June 2006, which was after appellant’s demands for money and the alleged knife incident. He later attempted to clarify his testimony, stating that when he said he played with appellant until June, that was before the knife incident.
Roger G., a friend of both Jesse and appellant, testified that Jesse and appellant were friends, that he was unaware of anything occurring to adversely affect their relationship, and that he never saw them acting unfriendly towards each other. Appellant told Roger that Jesse owed him money, and Roger heard appellant ask Jesse for money Jaime had lent Jesse, and heard Jesse say he did not have it. On that occasion, appellant gave Jesse a light tap. Roger did not know if appellant was fooling around, but Jesse acted scared. He never saw Jesse give appellant money.
Jesse told Roger that appellant pulled out a knife and said, “I’m going to shank you.” Roger never saw appellant with a knife. While Roger never heard appellant say anything that he thought was a threat to Jesse, he did hear appellant tell Jesse, “I’ll ask somebody to get you back.” Roger told police that he heard that appellant had socked Jesse, bruising him, but denied seeing him do it. Roger also told police that appellant stole from Jesse’s house.
Los Angeles Police Officer Lisa Goveron investigated the allegations against appellant. On March 6, 2006, she interviewed Jesse. He told her that for several months after his mother retrieved property appellant had stolen, appellant and another boy approached him at school and demanded money, threatening to beat him if he did not pay. Jesse also said he did not immediately report the knife incident because appellant threatened to make things worse if he snitched.
Officer Goveron also interviewed Roger. He stated that he was with Jesse several times over a period of several weeks, when appellant and another boy approached and asked him for money. They threatened that if Jesse did not give them money, they would hit him. Jesse was frightened. Roger also said that he saw appellant approach Jesse with a knife.
The defense’s evidence
Appellant testified on his own behalf. Jesse was his good friend. He played with Jesse at each of their homes. He denied taking a video game from Jesse, but said that Jesse lent him his CD player. When accused of stealing it by Jesse’s mother, appellant told her that Jesse had lent it to him.
Appellant loaned Jesse money at school and asked for it back. Jesse only repaid appellant $2 on one occasion. When Jesse did not pay appellant, appellant would walk away or playfully touch Jesse’s cheek. Appellant denied ever displaying a knife to Jesse, owning a knife, or telling Jesse he was going to leave someone behind to beat up Jesse when appellant went to eighth grade.
Appellant testified to conflict between his family and Jesse’s. He said that his parents were upset that Jesse was spending too much time at their home and that Jesse’s mother was giving appellant and his brother rides to school without permission. Jesse stopped coming to appellant’s home a week before he reported appellant to the police.
Appellant’s stepfather corroborated appellant’s testimony about the stepfather’s conflicts with Jesse’s mother. In December 2005, he confronted her about giving his stepsons rides to school. She nonetheless continued until the stepfather threatened to call the police, at the end of January 2006.
All of appellant’s immediate family members testified that he did not have a knife. Jaime testified that Jesse had lent appellant the CD player and that Jaime lent Jesse money, but Jesse never lent money to Jaime.
DISCUSSION
I. Sufficiency of evidence
The juvenile court found to be true the allegations in counts 1 and 2 that appellant had committed grand theft person and in count 3 that he had made a criminal threat.
A. Contentions
Appellant contends that there is insufficient evidence to support these findings. He argues that there was no evidence he had the intent to steal without a good faith claim of right to permanently deprive the owner of possession. The evidence only showed that he and Jesse were acting like “adolescent boys fooling around and talking tough to each other” and that he was only seeking to recover money previously lent. He further argues that there is no evidence Jesse was in sustained fear from any threat. Jesse did not report the threat to “shank him” until the day after it was made, and only after boys threw eggs and a stink bomb at his house. Further, he continued to play with appellant after the incident.
B. Standard of review
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Catlin (2001) 26 Cal.4th 81, 139.)
C. Grand theft person
Appellant focuses on the evidence favorable to his claim that he did not intend to steal. We are of course bound by the above-stated principles to focus on whether there is sufficient evidence to support the juvenile court’s findings. Viewing the evidence with this prospective, we find it sufficient to support the finding that appellant intended to steal.
Grand theft from the person requires the taking and asportation of the property of another from his person with felonious intent. (People v. La Rocca (1945) 68 Cal.App.2d 652, 656.) The mental element of the offense is the intent to steal or deprive the owner of the owner’s property. (People v. Campbell (1976) 63 Cal.App.3d 599, 615; People v. Kageler (1973) 32 Cal.App.3d 738, 744; People v. Cuccia (2002) 97 Cal.App.4th 785, 796.) Because the intent to steal is peculiarly within the knowledge of the perpetrator, it must usually be determined by circumstantial evidence. (See People v. Cole (1985) 165 Cal.App.3d 41, 48.)
In December 2005, Jesse accused appellant of stealing his video game. Jesse’s mother retrieved the game from appellant’s house. It was only after this incident that appellant began demanding money from Jesse and threatening to beat him up if he did not pay. When Jesse did not give appellant money, appellant lightly tapped Jesse on the arm or tapped his cheek. Given this chronology, the court could reasonably infer that appellant’s demands and threats to take Jesse’s money were in retaliation for Jesse accusing him of theft. Jesse testified that he gave appellant money in response to appellant’s demands and threats and that he did not owe appellant any money. Roger observed that Jesse was afraid of appellant. These facts support the juvenile court’s finding that appellant sought to wrongfully deprive Jesse of Jesse’s property.
D. Criminal threat
To sustain a finding that appellant made a criminal threat, the prosecution must establish that: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat, regardless of whether appellant intended to carry it out; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety or that of his family. (Pen. Code, § 422; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.)
Penal Code section 422 provides in part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
Neither section 422 nor the cases interpreting it have devised a litmus test of what constitutes “‘sustained fear.’” It has been generally described in an analytically unhelpful manner, as a period of time “that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1138.) As little as 15 minutes of fear is “‘sustained fear.’” (People v. Allen, supra, at p. 1156.)
The sustained fear required for the offense contains two components, one subjective and one objective. The victim must actually be in sustained fear for his or his family’s safety, and that fear must be reasonable under the circumstances. (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.) A victim’s knowledge of a defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear. (People v. Allen, supra, 33 Cal.App.4th at p. 1156.)
On March 1, 2006, appellant approached Jesse, holding a knife and threatening to “shank” him. Jesse stated that this “scared” him. Roger testified that Jesse cried when he told Roger about the knife threat. His fear was reasonable under the circumstances. The threat was of serious injury. Displaying the knife demonstrated appellant’s capability of following through on his threat. Moreover, this threat came on the heels of weeks of threats of physical force if Jesse did not give appellant money. Roger heard that appellant socked Jesse, bruising him, and Jesse said that appellant had hit him in the arm on one occasion, albeit “softly.” This demonstrated appellant’s intent to follow through on his threats. This prior history of threats and hostile physical contact with Jesse supports an inference that Jesse was in sustained fear. (See In re Ernesto H. (2004) 125 Cal.App.4th 298, 312; People v. Allen, supra, 33 Cal.App.4th at p. 1156 ; see also People v. Zavala (2005) 130 Cal.App.4th 758, 770.) The frequency of appellant’s threats to hurt Jesse issued over an extended period of time, appellant’s prior hostile physical contact with Jesse and the serious nature of the threat to shank Jesse, all suggest that Jesse subjectively experienced fear that was more than fleeting.
Appellant argues that Jesse’s delay in going to the police until the next day reflects that he was not in sustained fear. Quite to the contrary, an inference at least equally plausible is that Jesse went to the police the next day because he continued to be fearful. His delay may have only been the result of the fear that appellant would make things worse for him if he “snitched.”
II. Validity of probation condition
When the juvenile court placed appellant on home probation, it imposed the condition that he not receive any “F,” “D,” or “U” grades at school. Appellant did not object to this condition.
Appellant contends that imposition of this condition was an abuse of discretion. He argues that there was no evidence that appellant was capable of maintaining that grade average. Respondent contends that this claim has been forfeited. We agree with respondent.
In People v. Welch (1993) 5 Cal.4th 228 (Welch) the California Supreme Court applied the forfeiture doctrine to challenged conditions of probation. There, the defendant was sentenced to probation on the terms and conditions in the probation report. The defendant did not object to the conditions. On appeal, he argued that the conditions were improper on Bushman/Lent grounds and that his failure to object in the trial court did not preclude appellate review because the type of error constituted an “‘unauthorized sentence,’” entered “‘in excess of jurisdiction’” and thus could be raised at any time. (Welch, supra, at p. 235.) The Supreme Court held that the failure to timely challenge the reasonableness of a probation condition on Bushman/Lent grounds forfeited the claim on appeal because a timely objection discouraged imposition of invalid conditions and reduced costly appeals brought on that basis. (Welch, supra, at p. 235; see also In re Sheena K. (2007) 40 Cal.4th 875, 882.) It excluded from this general forfeiture rule claims challenging probation conditions involving “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.” (Welch, supra, at p. 235.) Thus, Welch dealt with unreasonable and inappropriate conditions that should not have been imposed because they failed to relate to the defendant’s offense, did not relate to future criminality and regulated non-criminal conduct.
People v. Lent (1975) 15 Cal.3d 481, 486 and In re Bushman (1970) 1 Cal.3d 767, disapproved of in People v. Lent at page 486, footnote 1, each found the same three requirements for a probation condition to be invalid: (1) it must have no relationship to the crime of which the offender was convicted, (2) it must relate to conduct which is not in itself criminal, and (3) it must require or forbid conduct which is not reasonably related to future criminality. Lent however disapproved of Bushman’s use of the disjunctive, “or,” between the three conditions and instead used the conjunctive, “and.” In other words, Lent mandates that all three requirements be met for a probation condition to be invalid.
We conclude that the claim appellant raises here is controlled by Welch and is the type of claim most suitable for resolution by the trial court. It is because this claim was not raised in the trial court that the record is sparse, making an assessment of the challenged condition difficult.
Relying on In re Juan G. (2003) 112 Cal.App.4th 1 (Juan G.), appellant argues that that case “held that, in spite of the fact that there was no objection to the probation condition that the juvenile maintain a B grade average in school, the lower court abused its discretion where there was no evidence the minor was capable of doing so.” But Juan G. did not address the question of whether the claim had been forfeited, instead stating that “[n]otwithstanding respondent’s claim of waiver, we agree with appellant.” (Id. at p. 6.)
Although this claim has been forfeited on appeal, appellant may possibly be able to raise it again at a probation violation hearing regarding the challenged condition. While we do not resolve this question with regard to the present matter, we note that a probationer is not limited to denying or defending against a charged probation violation, even where violation is proven or admitted, because the probationer has a due process right to explain mitigating circumstances and argue that the ends of justice do not warrant revocation. (People v. Coleman (1975) 13 Cal.3d 867, 873.)
Even if this claim had been preserved for appeal, we would reject it. While the record is scant, we conclude that the challenged condition is not unreasonable. A juvenile court is vested with broad discretion to impose appropriate probation conditions. (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82, disapproved on other grounds in In re Jamie P. (2006) 40 Cal.4th 128.) Its exercise of this discretion will only be overturned for manifest abuse. (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)
Appellant claims that there was no evidence that he was capable of meeting the academic standard set forth by the juvenile court in the challenged condition. Juan G., upon which appellant relies for this proposition is distinguishable. There, the juvenile court imposed a condition that the minor maintain a B average. In finding that the trial court abused its discretion in imposing that condition, the Court of Appeal noted that “[t]he record shows compliance with that requirement is beyond appellant’s capacity.” Thus, there was “no evidence appellant has more than average abilities or could otherwise be reasonably expected to achieve more than overall satisfactory or ‘passing’ grades. As such, the probation condition imposed here bears no relationship to appellant’s present or future criminality, was not narrowly drawn to serve the interests of public safety or rehabilitation, and was not specifically tailored to appellant’s individual circumstances.” (Juan G., supra, 112 Cal.App.4th at p. 7.)
In the matter before us, on the other hand, the juvenile court imposed a condition that appellant merely not receive failing grades. Thus, the academic achievement bar was minimally set. Further, there was no evidence that this standard was beyond appellant’s capacity. While some of the grades on his last report card were unsatisfactory, the probation report stated that “[a]ccording to [appellant’s] past teacher counselor Norma Cantu, the minor’s academic strength in math is above average. Minor was not a disciplinary problem and followed classroom rules.” Appellant’s parents informed the probation officer that his academic achievement was “marginally satisfactory.” Despite some of his prior grades being unsatisfactory, there was no evidence that appellant had any learning disabilities that would prevent him from succeeding or lacked the capability to do so if he exerted the effort.
III. Maximum term of confinement
At the disposition hearing, the juvenile court ordered appellant home on probation. It set a maximum term of confinement of four years four months. Appellant filed a motion requesting the juvenile court to strike this language pursuant to In re Ali A. (2006) 139 Cal.App.4th 569 (Ali A.) which was denied.
Appellant contends that the minute orders should be corrected to delete any reference to the maximum term of confinement. He argues that that term is only appropriate when the appellant is removed from parental custody as set forth in section 726, subdivision (c). Respondent contends that while the juvenile court was not required to set a maximum term of confinement, such a term does not prejudice appellant because it has no legal effect and does not require reversal or remand.
Section 726, subdivision (c) provides, in pertinent part, “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [¶] As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code . . . .”
In Ali A., supra, 139 Cal.App.4th 569, the minor was placed in the custody of his parents under the supervision of a probation officer, and the juvenile court set the maximum confinement term at three years, the upper term for the offense. The minor contended that the juvenile court failed to exercise its discretion in setting the maximum term of physical confinement pursuant to section 731, subdivision (b), because that section permits the juvenile court to set the maximum term of confinement at less than the highest of the three statutory terms for the offense. The reviewing court rejected the minor’s contention, observing that this provision of section 731, subdivision (b) applies only to commitments to the California Youth Authority. (Ali A., supra, at pp. 572-573.)
Section 731, subdivision (b), as modified effective January 1, 2004, provides, in pertinent part, that “[a] minor committed to the Department of the Youth Authority . . . may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court . . . .”
The Court of Appeal continued, “Given that the juvenile court did not commit the minor to the CYA, one may well ask why the [juvenile] court’s dispositional order included a maximum term of confinement.” (Ali A., supra, 139 Cal.App.4th at p. 573.) The court concluded that since the minor had not been committed to the CYA or removed from the custody of his parents, and therefore neither section 731, subdivision (b) nor section 726, subdivision (c) was applicable, the juvenile court had no discretion—or was not required—to set a maximum term of confinement. (Ali A., supra, at pp. 571, 573.)
The Ali A. court simply affirmed the order of probation, finding that the maximum term of confinement contained in the dispositional order was “of no legal effect” until such time as the minor violated probation, a section 777 hearing was held, and the court modified the current disposition and removed him from his parents’ custody, at which time the juvenile court would have to set and/or declare a maximum term of confinement in accordance with section 726, subdivision (c) and, if applicable, section 731, subdivision (b). (Ali A., supra, 139 Cal.App.4th at pp. 573-574.) Concluding that the minor was “not prejudiced by the presence of [the maximum confinement] term,” the court held that there was “no basis for reversal or remand in this case.” (Id. at p. 574.) In this regard, the court noted, “The minor suggests that if this maximum term of confinement is not stricken and he is later committed to the CYA, the judge responsible for that disposition may believe he or she is required to impose the three-year maximum term contained in the present order. We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect.” (Id. at p. 574, fn. 2.)
We agree with appellant that the maximum term of confinement must be stricken. While, as the Ali A. court observed, no remand or reversal is required, appellant is entitled to a dispositional order that accurately reflects the punishment imposed upon her at the time of the dispositional hearing. Not only is the setting of a maximum term of confinement not required where, as here, a minor is not removed from the physical custody of his or her parents, but, should future proceedings result in a commitment to the Division of Juvenile Facilities, the maximum term of confinement gratuitously set at the time probation is granted may not be the term ultimately imposed. (§ 731, subd. (b).) As such, we believe the better practice is to strike the order setting a maximum term of confinement.
DISPOSITION
The order of wardship is modified by striking the order setting a three-year maximum term of confinement. In all other respects, the order of wardship is affirmed. The juvenile court is directed to correct the minute order of the disposition hearing accordingly.
We concur: ASHMANN-GERST, J., CHAVEZ, J.