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In re Alex S.

California Court of Appeals, First District, Fifth Division
Feb 8, 2011
No. A127867 (Cal. Ct. App. Feb. 8, 2011)

Opinion


In re ALEX S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALEX S., Defendant and Appellant. A127867 California Court of Appeal, First District, Fifth Division February 8, 2011

NOT TO BE PUBLISHED

Mendocino County Super. Ct. No. SCUKJDSQ091498704

Bruiniers, J.

Appellant Alex S. was charged as a juvenile with misdemeanor assault (Pen. Code, § 240) and misdemeanor battery (§ 242). He was 13 years old at the time of the charged incident. After a contested evidentiary hearing, the juvenile court sustained the petition as to the battery charge, and placed appellant on probation. Appellant contends that (1) there was insufficient evidence to rebut the presumption under section 26 that a minor under the age of 14 is incapable of committing a crime, and (2) several of the probation conditions imposed by the court violated his constitutional rights.

All further code references are to the Penal Code unless otherwise indicated.

While it appears, as the Attorney General concedes, that at least some of the probation conditions imposed on appellant would have required modification in order to pass constitutional muster, because appellant’s probation has ended, we find these issues are moot and not properly before us for decision.

As we discuss post, appellant’s counsel has advised us that appellant’s probation has been terminated and he is no longer a ward of the juvenile court.

We reject appellant’s argument as to the sufficiency of the evidence. Accordingly, we will affirm the juvenile court’s order sustaining the petition.

I. Factual and Procedural Background

On September 2, 2009, appellant was charged in a Welfare and Institutions Code section 602 petition (entitled “4th Juvenile Petition Reopened”) with misdemeanor assault (§ 240) (count one) and misdemeanor battery (§ 242) (count two).

An “original” petition, filed on April 6, 2007, when appellant was 11 years old, alleged misdemeanor assault (§ 240) and misdemeanor battery (§ 242). A “first subsequent” petition, filed on May 4, 2007, alleged felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and felony participation in criminal street gang activity (§ 186.22, subd. (a)), and included a special allegation that appellant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to the original petition, appellant admitted the assault charge, and the battery charge was dismissed. The first subsequent petition was later dismissed on the People’s motion. On January 18, 2008, appellant was placed on informal probation (Welf. & Inst. Code, § 725, subd. (a)) for the assault charge in the original petition.

At a contested jurisdictional hearing, the court heard testimony about the incident underlying the charges. On June 11, 2009, Alejandro V., a 16-year-old high school student, attended his younger brother’s middle school graduation ceremony with his parents. Appellant, whom Alejandro knew, was also graduating from middle school. After the ceremony, appellant was standing outside the auditorium with his parents and four friends. As Alejandro and his parents left the auditorium, appellant pushed Alejandro in the chest, causing Alejandro to trip on a cement block and fall on his back. Alejandro weighed 135 pounds and was about five feet four or five feet five inches tall. Appellant weighed between 180 and 200 pounds.

Alejandro testified that he and appellant did not speak to each other before or after appellant pushed Alejandro. Alejandro did not say anything to provoke appellant. After he pushed Alejandro, appellant stepped back and stood there for about a minute as Alejandro and his family left. Although a police car was parked in front of the graduation, Alejandro did not report the incident to the police officer, nor did he report it later.

Alejandro’s mother, Rafaela V., saw appellant just before he pushed Alejandro, but did not see the push itself. Rafaela saw Alejandro fall to the ground and heard him say something like, “ ‘What the heck.’ ” Rafaela asked appellant why he had pushed her son. Appellant initially denied pushing Alejandro. In response, Rafaela said, “ ‘I saw you push him down,’ ” and appellant replied, “ ‘No, I didn’t, I didn’t.’ ” Appellant then admitted pushing Alejandro, stating, “ ‘Well, he thinks he’s very chingon, a tough shit.’ ” Rafaela thought “chingon” also meant someone who “acted so cool.” A group of people, including appellant’s father, mother, sisters and cousins, then approached Rafaela and discussed the incident with her. Rafaela had not seen Alejandro do anything to provoke appellant.

We refer to the parents in this case by their first names to avoid identifying their minor sons.

At the conclusion of the People’s case-in-chief, defense counsel moved to dismiss on the ground that appellant was 13 years old at the time of the incident and was presumed to be unable to understand that what he did was wrong. Defense counsel argued that the incident was “horseplay.” The prosecutor responded that appellant’s initial denial of pushing Alejandro showed consciousness of guilt, and noted that appellant subsequently provided a “profane” reason for pushing Alejandro. The prosecutor also argued that appellant’s action was unprovoked and took Alejandro by surprise, rather than being an instance of mutual horseplay. The prosecutor added, “the fact that he denied it shows that he was aware that it was wrong before, then, he had to own up to it.” The court denied the motion to dismiss.

Defense counsel asked the court to “take judicial notice of the documents in the Court’s file” in support of the motion. The court did not rule on the motion.

Appellant’s mother, Josephina A., testified that, after the graduation, she and her family were standing outside talking. She testified that appellant did not push or trip anybody. Josephina initially testified that she did not see Alejandro, but later testified that she saw Alejandro walk by after the ceremony and that Alejandro and appellant spoke. She did not hear what they said. She did not see Alejandro fall. Josephina first saw Alejandro’s mother outside the auditorium when she “said things” to appellant in an angry manner. Josephina did not understand what Alejandro’s mother was saying, but she heard appellant respond, “ ‘That’s not true.’ ”

Appellant testified that he went outside the auditorium with his parents, aunt, and cousins after the graduation. He did not really know Alejandro but knew who he was. When Alejandro came out of the auditorium, he approached appellant, and they began “saying stuff to each other,” including “a lot of bad words.” Appellant testified that Alejandro initiated this conversation by asking appellant why he was looking at Alejandro. Appellant denied looking at Alejandro and said Alejandro was looking at appellant. Alejandro said “bad words,” including “ ‘fuck you.’ ” Appellant responded with swear words, including “ ‘[f]uck you.’ ” Appellant’s family was present during this exchange. Appellant denied pushing or tripping Alejandro. He did not see Alejandro fall. When Alejandro’s mother came out of the auditorium, she began yelling at appellant because he and Alejandro were arguing. Alejandro’s mother did not accuse appellant of pushing Alejandro.

At the conclusion of the jurisdictional hearing, the court sustained the petition as to count two (battery) only, finding beyond a reasonable doubt that appellant willfully and unlawfully used force and violence upon the person of another; the court found appellant had not committed assault as charged in count one.

As the Attorney General notes, the minute order for the jurisdictional hearing erroneously states that the court found both counts true. However, as the Attorney General also notes, the reporter’s transcript of the hearing, as well as the probation report and the dispositional order, show that the court sustained only count two (battery). When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; People v. Zackery (2007) 147 Cal.App.4th 380, 385.)

At a subsequent disposition hearing, the court declared appellant a ward of the court (Welf. & Inst. Code, § 602), and placed him on probation.

Appellant filed a timely notice of appeal.

II. Discussion

A. Capacity to Commit a Crime

Section 26 establishes a presumption that a minor under the age of 14 is not capable of committing a crime in the absence of “clear proof” that at the time of the act he “knew its wrongfulness.” The presumption may be rebutted by “clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed.” (In re Manuel L. (1994) 7 Cal.4th 229, 232, 238 (Manuel L.); accord, People v. Lewis (2001) 26 Cal.4th 334, 378 (Lewis).) Section 26 applies in proceedings under Welfare and Institutions Code section 602 to declare a minor a ward of the juvenile court by reason of his violation of a law. (Manuel L., supra, 7 Cal.4th at p. 232; In re Tony C. (1978) 21 Cal.3d 888, 899 (Tony C.), superseded by statute on another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.)

Section 26 provides in relevant part: “All persons are capable of committing crimes except those belonging to the following classes: [¶] One-Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness....”

On appeal, we must affirm an implied finding that a minor understood the wrongfulness of his conduct if the implied finding is supported by substantial evidence. (In re Jerry M. (1997) 59 Cal.App.4th 289, 297–298 (Jerry M.).) We “must review the whole record in the light most favorable to the judgment and affirm the trial court’s findings that the minor understood the wrongfulness of his conduct if they are supported by ‘substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. [Citations.]’ [Citations.] The trier of fact, not the appellate court, must be convinced of the minor’s guilt, and if the circumstances and reasonable inferences justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]” (In re James B. (2003) 109 Cal.App.4th 862, 872 (James B.); accord, In re Paul C. (1990) 221 Cal.App.3d 43, 52 (Paul C.).)

A minor’s knowledge of wrongfulness may not be inferred from the commission of the act itself. (Lewis, supra, 26 Cal.4th at p. 378; Tony C., supra, 21 Cal.3d at p. 900.) However, “ ‘the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment’ may be considered. ([Tony C., supra,] 21 Cal.3d [at p.] 900.)” (Lewis, supra, 26 Cal.4th at p. 378.) The court must often rely on circumstantial evidence such as the minor’s age, experience, and understanding, as well as the circumstances of the offense. (James B., supra, 109 Cal.App.4th at p. 872; Jerry M., supra, 59 Cal.App.4th at p. 298.)

Here, substantial evidence supports the juvenile court’s implied finding that appellant understood the wrongfulness of his actions when he pushed Alejandro. In June 2009, when the incident occurred, appellant was less than six months shy of his 14th birthday. Generally, the older a child gets and the closer he approaches the age of 14, the more likely it is that he appreciates the wrongfulness of his acts. (Lewis, supra, 26 Cal.4th at p. 378; James B., supra, 109 Cal.App.4th at pp. 872–873; Paul C., supra, 221 Cal.App.3d at p. 53.) In addition, Alejandro’s mother testified that, when she asked appellant why he had pushed Alejandro, appellant initially denied doing so, but then admitted it, stating that Alejandro thought he was a “ ‘chingon, a tough shit,’ ” who “acted so cool.” Appellant’s initial denial, and his subsequent admission and attempt to justify his conduct, support the inference that appellant knew his conduct was wrongful. (See James B., supra, 109 Cal.App.4th at p. 873; Paul C., supra, 221 Cal.App.3d at p. 53.)

Appellant contends that his act of pushing Alejandro was merely a “childish” act that commonly occurs on playgrounds and school campuses. Appellant also argues that he did not push Alejandro with sufficient force to knock him down, and notes that Alejandro testified he fell because he tripped over a cement block. These arguments echo the argument appellant’s trial counsel made when he moved to dismiss at the close of the prosecution’s case, i.e., that the incident was mere “horseplay.” But the juvenile court was not obligated to interpret the incident in this manner. As the prosecutor argued in opposing appellant’s motion to dismiss during trial, the evidence supported the conclusion that appellant’s action was unprovoked and took Alejandro by surprise, rather than being an instance of mutual horseplay. Moreover, the circumstance that Alejandro apparently was not injured does not compel a conclusion that appellant did not understand his act was wrongful.

Appellant also suggests he could not have appreciated the wrongfulness of his act because he “had not previously gotten into legal trouble for pushing a child.” As the Attorney General notes, however, the April 6, 2007 original petition against appellant alleged assault and battery; according to a probation office report, these charges arose from a January 2007 incident when appellant, who was then 11 years old, punched a fellow middle school student in the back of the head. When appellant admitted the assault allegation in October 2007, the court (the same judge who presided in the present phase of appellant’s delinquency proceedings) expressly found that there was clear proof that appellant knew his action was wrong. In his reply brief, appellant argues that “[p]unching a child in the back of the head is qualitatively different from shoving a child on the chest[,]” and that the earlier juvenile proceedings did not alert appellant that it was wrong to push a child. However, despite the differences between the two incidents, the 2007 proceedings against appellant provide further support for the inference that appellant, who was two years older when he pushed Alejandro in June 2009, knew it was wrong to use physical force against other children.

For the foregoing reasons, we conclude substantial evidence supports the juvenile court’s implied finding that appellant understood the wrongfulness of his actions. Accordingly, we will affirm the juvenile court’s order sustaining the petition.

B. The Probation Conditions are Moot

In its disposition order, the trial court imposed a set of probation conditions-conditions 21–27 and 29-that appellant refers to as the “ ‘gang terms.’ ” These conditions provide as follows:

“21. Said minor shall not be a member of any criminal street gang, act in furtherance of, in association with or for the benefit of any criminal street gang;

“22. Said minor shall not associate with any person known to him/her as a criminal street gang member(s) and shall not frequent any area where criminal street gang members are known to him/her to congregate or areas known for criminal street gang related activity;

“23. Said minor shall not wear or possess any clothing or item or display any hand signs with gang significance or which are indicia of criminal street gang membership (i.e. colors, symbols, insignias, numbers, monikers, patterns, etc.) known to him/her to be such, as may be identified as such by probation officers or any other law enforcement officer;

“24. Said minor shall submit to photographing as directed by any probation officer or other law enforcement officer;

“25. Said minor shall not possess any graffiti materials, including but not limited to, acid, spray paint cans, marker pens and liquid shoe polish;

“26. Said minor shall not obtain new gang related tattoos, brands, burns, piercings or voluntary scarring and shall permit photographing of all tattoos that exist to the date of this order;

“27. Said minor is not to remain in any building, vehicle or in the presence of any person where any dangerous or deadly weapons or firearms or ammunition are known to him/her to exist; [¶]... [¶]

“29. Said minor shall not attend any Court proceedings unless minor is a defendant, witness or party in interest to that proceeding.”

At the disposition hearing, defense counsel objected to these conditions, which had been recommended by the probation department. The probation officer argued that appellant was “getting involved with or may be on the outskirts of gang activity,” and emphasized the need to protect the community.

Defense counsel argued that some of the conditions were vague and over broad, and that none of them should be imposed on appellant because there was no evidence that appellant had any involvement with gangs. The prosecutor responded that the conditions were appropriate because of the nature of appellant’s present offense and prior misconduct, and because the probation report reflected that appellant was exposed to the gang culture in his home, where his parents allegedly had harbored gang members. The court entered the order recommended by the probation department, including the challenged probation conditions.

Appellant contends that some of the probation conditions-conditions 22, 27, and 29-are facially unconstitutional under the vagueness and over breadth doctrines. In addition, he argues that the “ ‘gang terms’ ”-conditions 21–27 and 29-are unconstitutional as applied to him, because there is no evidence he is a gang member or has engaged in gang activity.

A minor’s current gang affiliation, however, is not a prerequisite to the imposition of conditions reasonably designed to curb future criminal behavior. (People v. Lopez (1998) 66 Cal.App.4th 615, 626; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1501, disapproved on another ground in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983, fn. 13.)

In a letter filed with this court after briefing was completed, appellant’s counsel advised us that appellant’s probation has been terminated and he is no longer a ward of the juvenile court. He conceded that his argument as to the constitutionality of the probation conditions is “technically moot.” Appellant, however, urges us to resolve this issue, arguing that the challenged conditions are standard and are used in many juvenile cases, thus raising public policy considerations and issues that are likely to recur. (See In re Sheena K. (2007) 40 Cal.4th 875, 879 (Sheena K.); People v. Segura (2008) 44 Cal.4th 921, 925–926, fn. 1.) The Attorney General filed no opposition to appellant’s request and has previously conceded in briefing that some, but not all, of the challenged probation conditions would require modification.

A juvenile court has broad discretion in formulating probation conditions, and may impose “ ‘ “any reasonable condition that is ‘fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ ” ’ [Citations.]” (Sheena K., supra, 40 Cal.4th at p. 889; see Welf. & Inst. Code, § 730, subd. (b).) Because of the juvenile court’s unique role in caring for the minor’s well-being, the scope of permissible discretion is even greater than that allowed for adult probationers. (In re Victor L. (2010) 182 Cal.App.4th 902, 909–910 (Victor L.).) Accordingly, “ ‘a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.’ ” (Sheena K., supra, 40 Cal.4th at p. 889; Victor L., supra, 182 Cal.App.4th at p. 910.) However, the court’s discretion is not boundless, and is limited by the void for vagueness doctrine and the overbreadth doctrine. Under the void for vagueness doctrine, which is based on the due process requirement of fair notice, a probation condition “ ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated[.]’ ” (Sheena K., supra, 40 Cal.4th at p. 890; Victor L., supra, 182 Cal.App.4th at p. 910; People v. Leon (2010) 181 Cal.App.4th 943, 949 (Leon); In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).) A probation condition that is not vague may nevertheless be overbroad if it prohibits constitutionally protected conduct. (People v. Lopez, supra, 66 Cal.App.4th at p. 630.)

Any opinion which we might render on these issues would be purely advisory in the absence of any indication of further proceedings to occur in this case. We decline appellant’s invitation to offer such an opinion.

III. Disposition

The juvenile court’s March 5, 2010 order adjudicating appellant a ward of the court and placing him on probation is affirmed. Because appellant’s probation has ended, it is unnecessary for us to address the conditions of probation imposed.

We concur: Jones, P. J., Simons, J.

A “third petition,” alleging appellant had violated his probation, was filed on March 10, 2008. According to a probation office report, appellant admitted the violation, and his informal probation was continued. Informal probation was terminated successfully on June 20, 2008.

The Attorney General concedes that at least part of condition 22 is unconstitutionally vague in use of the term “frequent” because the term “is both obscure and has multiple meanings.” (Leon, supra, 181 Cal.App.4th at p. 952; accord, In re H.C. (2009) 175 Cal.App.4th 1067, 1072.) The Attorney General also concedes that condition 29, prohibiting appellant from attending any court proceedings unless he is a defendant, witness or party in interest to that proceeding is an overbroad restriction on his constitutional right of access to the courts. (See Leon, supra, 181 Cal.App.4th at pp. 952–954 [similar condition was overbroad because it prohibited legitimate activities that were unrelated to future criminality]; People v. Perez (2009) 176 Cal.App.4th 380, 384–385 [same]; see also E.O., supra, 188 Cal.App.4th at pp. 1154–1157.)


Summaries of

In re Alex S.

California Court of Appeals, First District, Fifth Division
Feb 8, 2011
No. A127867 (Cal. Ct. App. Feb. 8, 2011)
Case details for

In re Alex S.

Case Details

Full title:In re ALEX S., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, First District, Fifth Division

Date published: Feb 8, 2011

Citations

No. A127867 (Cal. Ct. App. Feb. 8, 2011)