Opinion
G057016
11-13-2019
In re JONATHON L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JONATHON L., Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18DL1423) OPINION Appeal from an order of the Superior Court of Orange County, Bradley S. Erdosi, Judge. Affirmed in part, reversed in part, and remanded. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
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Jonathon L. (Jonathon) appeals from an order of the juvenile court following a true finding on two counts of second degree robbery. The juvenile court imposed 12 gang terms as part of his probation, including a gang registration requirement. Jonathon argues the registration requirement may only be imposed if the current offense was related to gang activity. Because we conclude the court did not enter a specific finding as to whether the robbery offenses were gang related, we reverse the gang registration condition and remand for further proceedings.
I
FACTS
Underlying Facts
The facts of the robberies are not disputed here, and therefore we need not go into much detail. Two similar robberies occurred on the evening of December 3, 2017, both involving three male robbers and a fourth accomplice driving a car.
At approximately 9:18 p.m., a young man was confronted by three males while he was walking alone, wearing headphones and listening to music on his mobile phone. One of the men said something to the victim, but he could not hear what was said over his music. Someone hit the victim in the face and pushed him to the ground, and his phone was stolen. As the three males left, the victim followed and saw the car they had entered. He noted the last three digits of the license plate, which he was able to report to police.
Approximately 45 minutes later, at around 10:00 p.m., a group of three males approached another man and a similar incident took place. One of the assailants showed the victim a knife and demanded his property. The victim handed over a mobile phone, pocketknife, and wallet, before all three males ran to a car and drove away. This incident was witnessed by two women driving nearby.
Shortly thereafter, a police officer saw a vehicle's license plate with the same last three digits that had been reported by the first victim. The license plate also had a piece of tape covering the first digit, which the officer found suspicious. The officer conducted a traffic stop. Jonathon was in the backseat, and when he was asked to identify himself, he gave a false name. Officers found the stolen property and a knife in the car. Jonathon and his companions were arrested.
Procedural History
The Orange County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 on September 12, 2018, alleging that Jonathon committed two counts of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) At the time, Jonathon was already on juvenile probation for two prior offenses: vandalism in June 2016 and robbery in May 2017.
Subsequent statutory references are to the Penal Code.
At a pretrial hearing in September 2018, the court reviewed a report from Jonathon's probation officer, indicating his progress on probation was "increasingly poor." He was missing school, and "gang indicia" had been found in his room. The probation officer had found a notebook "which had 'Hard Times' gang graffiti and other gang indicia such as [Jonathon's] moniker 'Looney' inside said notebook." The probation officer's report further stated that Jonathon was being supervised by the probation department's gang suppression unit, "as he is a documented 'My Crew Kills'/'Hard Times' criminal street gang member." Jonathon's mother reported that he only associated with gang members, but his "gang involvement has gotten worse," along with his substance abuse and other behavioral problems.
At the conclusion of a contested hearing, the juvenile court found both robbery counts true. At a subsequent disposition and probation violation hearing, Jonathon admitted a number of probation violations. Among these were his admissions that he committed the instant robberies and associated with three "Hard Times" criminal street gang members on the date of the robberies after being directed not to do so. The admissions, however, were separate, and do not explicitly admit Jonathon committed the robberies with the gang members. He also admitted an act of vandalism in September 2018, which, according to his probation officer, consisted of painting his gang monikers on a wall while in the company of a "'My Crew Kills' (MCK)/'Hard Times' criminal street gang associate."
At the disposition hearing, the court deemed both offenses felonies. The court ordered Jonathon continued as a ward of the court and imposed a commitment term for the robberies and the probation violations.
With respect to probation terms, the probation officer recommended imposing numerous gang terms and conditions on Jonathon, including a requirement to register pursuant to section 186.30. Jonathon's counsel objected to imposing any gang terms: "My objection would be to the potential gang terms that the court has indicated be part of his disposition."
The court imposed the gang terms over counsel's objection, stating: "[T]he the reason the court is imposing gang terms at this time is with respect to the vandalism, . . . as well as his prior affiliations and progress on probation. [¶] It's clear to this court that he's a member or associate of the 'Hard Times' criminal street gang, and his activities and behavior in the past [have] involved acting with other gang members or associating with other gang members. And at this time the court does believe that gang terms are appropriate . . . ."
Jonathon now appeals, arguing only the registration condition was improperly imposed.
II
DISCUSSION
Forfeiture
The Attorney General argues Jonathon forfeited any objection to the gang registration condition by failing to object to that condition specifically. Jonathon argues that his general objection preserved the issue for appeal and that a more specific objection would have been futile, given that the court had already apparently decided the issue. Because this is not a question raised for the first time on appeal, we exercise our discretion to consider the issue on its merits. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Demirdjian (2006) 144 Cal.App.4th 10, 14.)
The Gang Registration Condition
Section 186.30 created a gang registration requirement that applies, as relevant here, to "[a]ny crime that the court finds is gang related at the time of sentencing or disposition."
The Attorney General argues "substantial evidence supported the juvenile court's implied finding that appellant's crimes were gang related." (Italics added.) That is the crux of the problem. The Attorney General does not cite any authority for the proposition that this court may imply a finding that the robberies were gang related in the absence of a specific finding by the juvenile court. While it is clear the court thoughtfully and deliberately imposed the gang conditions as a whole, it is not apparent from the record that the court considered the particular requirements of section 186.30. Simply put, there is no finding by the juvenile court that the robberies were gang related.
Accordingly, we reverse the gang registration probation condition and remand for the court to enter a finding on this issue into the record.
III
DISPOSITION
The gang registration condition included in the juvenile court's disposition order is reversed, and the matter remanded for further proceedings consistent with this opinion. The remainder of the disposition order is affirmed.
MOORE, ACTING P. J. WE CONCUR: THOMPSON, J. DUNNING, J.
Retired Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------