Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. J1047, Thomas S. Burr, Commissioner.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Following a contested jurisdictional hearing, the court found true count 1 of a Welfare and Institutions Code section 602 petition alleging that appellant Armando L. violated Penal Code section 245, subdivision (a)(1), by throwing a rock at Jesus R. (Junior). It also found true an allegation that the offense was committed for the benefit of, or in association with, a criminal street gang in violation of Penal Code section 186.22, subd. (b)(1).
After completion of the jurisdictional hearing but prior to the dispositional hearing, the probation department alleged that appellant violated the terms of his release on home supervision by leaving his home for about an hour. Appellant admitted the violation.
Appellant was adjudged to be a ward of the court and released to his parents. He was placed on probation for a period of six months, ordered to complete 32 hours of community service and to serve 53 days in juvenile hall (a number of days equal to the amount time already served). The court imposed a probation condition forbidding appellant from associating with people he knows to be wards of the court or probationers unless he obtains permission from his probation officer.
Appellant argues that the true finding on count 1 is not supported by substantial evidence because he acted in self-defense. He also challenges the sufficiency of the evidence proving that the rock was a deadly weapon within the meaning of Penal Code section 245, subdivision (a)(1). Furthermore, he asserts that assault is a “wobbler” offense and the juvenile court erroneously failed to declare whether this crime was a felony or misdemeanor as required by Welfare and Institutions Code section 702. Also, he argues that the court’s failure to determine an appropriate maximum term of confinement violated his constitutional equal protection right. Finally, he argues that the probation condition forbidding him from associating with individuals known to him to be probationers or wards of the court is overbroad. We agree with appellant that the juvenile court’s failure to determine the character of the assault requires remand for the express declaration required by section 702. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.); In re Eduardo D. (2000) 81 Cal.App.4th 545, 549 (Eduardo D.).) The rest of appellant’s arguments are unconvincing.
Unless otherwise stated, all statutory references are to the Welfare and Institutions Code.
FACTS
During the afternoon of July 30, 2006, Maria Villalobos was walking to her house when a boy called her names and exposed himself.
Later that day, Adrian Villalobos and Alberto Barron, who are Maria’s adult sons, were walking to the store when they were approached by approximately 10 people, who began cursing them and calling them “scrap,” which is a disrespectful term used by Norteno gang members to refer to rival Sureno gang members. Adrian and Alberto admitted that they associate with Surenos. One of Adrian’s friends drove by and gave them a ride to Maria’s house.
Adrian and Alberto were standing in front of Maria’s house with their mother, their stepfather, who is named Jesus R., Sr. (Senior), and Junior, who is their stepbrother. A car passed by and stopped. People got out of the car and joined a group of people who were walking toward Maria’s house. Members of the group were armed with rocks, knives, bats, pipes and chains. Senior heard members of the group say, “Norté” and “Fuck Sureños.” Maria, Senior and Junior thought that members of the group wanted to fight Adrian, Alberto and Junior.
Some of the members of the group began throwing rocks at them. Junior testified that appellant was one of the people throwing rocks at them. One of the rocks hit Maria and she began crying. Appellant did not throw the rock that hit Maria. Junior, who had a set of brass knuckles in his pocket, retrieved a baseball bat from his father’s truck.
Los Banos Police Officer Jesus Parras, Sr., and his partner arrived on the scene. People in the group ran away. Some of them continued to throw rocks, even as they ran.
Junior chased appellant down the street. Junior gave three reasons why he chased appellant during his testimony. First, he “was defending [his] mom.” Second, he was “retaliating against them.” Third, “it was self-defense.”
Appellant threw a three-inch-wide rock at Junior, which hit Junior in the leg. Appellant was about 10 feet away from Junior when he threw the rock at him. After throwing the rock at Junior, appellant said, “Come on, let’s get it on.” Junior ran toward appellant.
Parras saw Armando, who was holding a bat “in an offensive stance,” chasing appellant. Both boys were immediately apprehended and detained. Appellant was holding a red shirt and his belt buckle had the letter “W” on it. Red is a color associated with the Nortenos, as is the letter “W.” Parras testified that Junior was wearing a pair of blue shorts and did not have a shirt on. Blue is a color associated with the Surenos.
Junior testified that his shorts were black.
Parras questioned appellant, Junior and Senior. Appellant denied being involved in the confrontation. Appellant said that he was walking home from the barber shop when he saw a crowd of people who were involved in a fight. Appellant said he was walking through the crowd when the police arrived and people began running. Appellant said that previously he was a Norteno associate, but he was not currently an active gang member. Junior told Parras that a group of people arrived and challenged his brothers and him to a fight. Junior told Parras that he saw appellant throw rocks at his family. Senior told Parras that appellant was part of the group throwing rocks at them and he saw appellant throw a rock at Junior.
Senior testified that he was not certain if appellant threw rocks at them and Adrian testified that he did not see appellant throw a rock at them. Due to the conflicting evidence, the juvenile court determined that it could not conclude beyond a reasonable doubt that appellant was part of the original group at Maria’s house.
Gang expert Los Banos Police Officer Joe Viera opined that appellant is a Norteno associate. He testified that if a group of Nortenos approach a house in which Surenos live and call out “scrap,” it would be a provocation to fight. Such fights promote the reputation of the provoking gang.
Appellant’s mother testified that appellant was with her at the grocery store around the time that the incident occurred. A cashier at the grocery store testified that she remembered appellant coming into the store with his mother that day.
DISCUSSION
I. The true finding on the assault allegation is supported by substantial evidence.
The applicable standard of review is well known:
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
These principles apply to appellate review of a juvenile court’s findings. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.)
A. The evidence does not clearly prove that appellant acted in self-defense.
Appellant contends that the true finding on the assault conviction must be reversed because the evidence “clearly showed that [he] acted in lawful self-defense when he threw the rock at [Junior]. There was no substantial evidence that [he] did anything but act in self-defense.” We disagree.
“All that is required to sustain a conviction of assault with a deadly weapon is proof that there was an assault, that it was with a deadly weapon, and that the defendant intended to commit a violent injury on another.” (People v. Birch (1969) 3 Cal.App.3d 167, 177.) “For an assault to be in self-defense, the defendant must actually and reasonably believe in the need to defend.” (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) As applicable here, reversal of the true finding on the assault count requires a determination on our part that under no hypothesis whatsoever is there sufficient evidence to conclude that appellant threw a rock at Jesus for any reason other than because he actually and reasonably believed in the need to defend himself. Such a determination is not warranted based on the evidence in this case.
There were no eyewitnesses to the incident between appellant and Junior, other than the participants. Parras did not see appellant throw a rock at Junior and no rock was entered into evidence. Appellant did not testify and he did not present a self-defense claim in the juvenile court. Instead, appellant presented an alibi defense. Defense counsel argued that appellant did not throw a rock at anyone, including Junior. Because appellant did not testify or make any pretrial statements admitting that he threw rocks, the record does not contain any evidence directly proving that appellant threw the rock at Junior because he actually feared that Junior was going to hurt him. We do not find the facts that Junior chased appellant and that Junior held a bat in an offensive stance sufficient to compel the conclusion that appellant necessarily threw the rock at Junior because he actually possessed an honest belief in the need to defend himself.
Based on our review of the record, we find that a trier of fact reasonably could determine from the entirety of the evidence that the incident was gang related and that appellant threw the rock at Junior to provoke a fight. There is strong evidence that the incident was gang related. Adrian and Alberto are Surenos and Parras testified that Junior was wearing a pair of blue shorts when he was detained (blue is a color associated with Surenos). The group of armed people who approached Junior’s home yelled “Norté” and shouted derogatory slurs against Surenos. When appellant was detained, he was wearing clothing associated with the Nortenos. Viera testified that appellant is a Norteno associate. Also, there is evidence demonstrating that appellant wanted to fight with Junior. Junior testified that immediately after appellant threw a rock at him, appellant said, “Come on, let’s get it on.” Appellant’s statement to Junior challenging him to fight, coupled with the evidence of competing gang affiliation, constitute substantial evidence supporting a reasonable inference that appellant threw the rock at Jesus to provoke a fight.
Accordingly, we conclude that the evidence does not clearly show that appellant acted in self-defense and that the true finding on count 1 is supported by substantial evidence.
B. Substantial evidence supports the implied finding that the rock was a deadly weapon.
i. Facts
Count 1 alleged that appellant committed an assault on Junior “by means of force likely to produce great bodily injury or with a deadly weapon, to wit: a rock.”
Junior testified that the rock appellant threw at him was about three inches wide and appellant was about 10 feet away from him when he threw the rock. The rock hit Junior in the leg. Junior testified that he felt the rock hit him “at the end.”
The court did not explicitly determine if the rock was a deadly weapon or if the assault was committed by means of force likely to produce great bodily injury. However, we infer that the court concluded the rock was a deadly weapon because the court also found the Penal Code section 186.22, subdivision (b)(1)(B), enhancement allegation true and this subdivision only applies when the person is convicted of a gang related “serious felony” as defined in Penal Code section 1192.7, subdivision (c). Subdivision (c)(23) of Penal Code section 1192.7 provides that “any felony in which the defendant personally used a dangerous or deadly weapon” is a serious felony. Assault by means of force likely to produce great bodily injury is not a serious felony within the meaning of Penal Code section 1192.7, subdivision (c).
ii. The rock was a deadly weapon.
People v. Beasley (2003) 105 Cal.App.4th 1078 sets forth the applicable standard:
“Penal Code section 245, subdivision (a)(1) penalizes the commission of an assault ‘with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.’ A deadly weapon may be any object, instrument, or weapon used so as to be capable of producing, and likely to produce, death or great bodily injury. [Citation.] In determining whether an object not inherently deadly or dangerous was used in the requisite manner, the trier of fact may look to the nature of the weapon, the manner of its use, and any other relevant fact. [Citation.] Although neither physical contact nor injury is required for a conviction, if injuries result, the extent of such injuries and their location are relevant facts for consideration. [Citation.]” (People v. Beasley, supra, 105 Cal.App.4th at p. 1086.)
Appellant argues that the rock he threw at Junior was not a deadly weapon because it is not likely that it could have caused death or great bodily injury. Appellant focuses on the fact that Junior was not injured by the rock, pointing out that in published cases involving a rock as a deadly weapon the victim generally sustained substantial injury. (See, e.g., People v. Gardeley (1997) 14 Cal.4th 605 [scalp lacerations requiring 20 stitches]; In re Paul A. (1980) 111 Cal.App.3d 928 [victim was knocked unconscious and sustained a skull fracture]; People v. White (1963) 212 Cal.App.2d 464 [victim sustained a two-inch scalp laceration that required stitches]; People v. Basnett (1960) 186 Cal.App.2d 108 [victim sustained bruises to his face, nose bleed and severe cut on his head].) We reject this contention because the presence or absence of injury is not determinative. Neither physical contact nor injury is required to sustain a conviction for assault with a deadly weapon. (People v. Beasley, supra, 105 Cal.App.4th at p. 1086.)
Having considered the entirety of the evidence, we uphold the juvenile court’s implied determination that the rock was a deadly weapon. Although the rock was not produced as an exhibit, Junior testified that it was three inches wide and that appellant threw it at him from a distance of 10 feet. Defense counsel did not challenge Junior’s description of the rock or the distance from which it was thrown. We conclude that a reasonable trier of fact could conclude that a three-inch rock that is thrown from a distance of 10 feet is likely to cause great bodily injury. Therefore, we uphold the court’s implied finding that the rock was a deadly weapon.
Defense counsel argued that appellant did not throw a rock at Junior. Defense counsel did not argue that if the juvenile court rejected this position and concluded that appellant did throw a rock, the rock was not a deadly weapon.
II. The juvenile court failed to determine the character of the assault.
Section 702 provides in part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.”
In Manzy W., supra, 14 Cal.4th 1199, our Supreme Court explained that there is a dual purpose to this requirement. First, it serves an administrative purpose. Second, it ensures that the court is aware of, and actually exercises its discretion under this section. (Id. at pp. 1206-1207.) When the juvenile court fails to make a formal declaration required under this section, remand is not automatic. Rather, “[t]he key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit.” (Id. at p. 1209.) If the record does not establish that the court was aware of its discretion, then remand is required. (Id. at pp. 1209, 1211.)
Appellant asserts and respondent concedes that in adult cases an assault in violation of Penal Code section 245, subdivision (a)(1), is a “wobbler” offense that is punishable alternatively as a misdemeanor or a felony. Also, appellant asserts and respondent also concedes that the juvenile court failed to expressly determine whether the assault was a misdemeanor or a felony, as is required by section 702. However, respondent argues that the court impliedly determined the assault was a felony. Having examined the record, we conclude that there is no evidence that the juvenile court was aware of its discretion to determine the character of the assault. Therefore, remand for compliance with section 702 is required.
Eduardo D., supra, 81 Cal.App.4th 545 is directly on point. There, the minor was found to have committed a grand theft. The juvenile court failed to expressly state on the record whether the offense was a misdemeanor or felony. The appellate court rejected respondent’s contention that the error was harmless and concluded that remand was required. It explained:
“In this case, the juvenile court did not orally indicate on the record whether the crime was a felony or misdemeanor. Nor did the juvenile court use any language that demonstrated an awareness of its discretion to make such a determination. The minute order reflects that it was a felony and the minor’s period of confinement was set not to exceed the felony period of three years. However, as both the minor and the Attorney General point out, these factors alone do not satisfy the requirements of Welfare and Institutions Code section 702. [Citation.] No doubt, the level of violence displayed by the minor, and the injuries sustained by Manuel G. strongly militate against misdemeanor treatment of this matter. In the first instance though, we leave this issue in the good hands of the juvenile court. As a result, we remand the matter to allow for the exercise of that discretion.” (Eduardo D., supra, 81 Cal.App.4th at p. 549.)
Likewise, in this case the record does not contain any evidence indicating that the juvenile court consciously exercised its discretion to determine the character of the assault as a misdemeanor or a felony. The probation report does not inform the court that it possesses discretion to declare the assault to be a misdemeanor. Rather, it states in two places that the assault is “a Felony.” The minute order of the jurisdictional hearing does not reflect any consideration by the juvenile court whether the assault should be declared a misdemeanor or a felony. The juvenile court did not make any statements during the dispositional hearing reflecting an awareness of its discretion to declare the assault to be a misdemeanor.
We are not persuaded by respondent’s argument that the juvenile court impliedly determined the assault was a felony. Respondent points out that the juvenile court found the gang enhancement true and this enhancement only applies to serious felonies. Respondent also relies on a statement made by the juvenile court during the dispositional hearing. The court said to appellant, “you have a pretty serious felony now,” and it warned him that if he was returned to juvenile court for another offense or for violating the terms of his wardship, he could be sent to the California Department of Corrections and Rehabilitation (CYA). These facts neither demonstrate that the juvenile court was aware that it possessed discretion to find the assault to be a misdemeanor nor establish that the court knowingly exercised its discretion and elected to treat the assault as a felony.
Respondent’s reliance on In re Andreas M. (1993) 18 Cal.App.4th 1092 is improper because our Supreme Court expressly disapproved this case in Manzy W., supra, 14 Cal.4th at page 1207, footnote 5.
Following and applying Manzy W., supra, 14 Cal.4th 1199 and Eduardo D., supra, 81 Cal.App.4th 545, we conclude that in light of all the facts and circumstances in this case the juvenile court’s failure to make the express declaration required by section 702 requires remand for determination of the character of the assault.
III. Failure to set an appropriate maximum period of confinement did not infringe appellant’s equal protection right.
The minute order for the jurisdictional hearing conducted on October 6, 2006, states that the maximum term of confinement is nine years. At the dispositional hearing, appellant was adjudged to be a ward of the court and placed on probation for six months. He was placed under the general supervision of the Merced County Probation Officer for placement in his parents’ home. One of the probation conditions was “confine[ment] for 53 days with credit for time served of 53 days.” The order of wardship states that appellant may not be held in physical confinement for a period exceeding the maximum period of confinement that would be imposed on an adult for the same offense. Appellant was not committed to CYA and the juvenile court did not set a definite maximum period of confinement pursuant to section 731.
Section 731, subdivision (b), provides in relevant part: “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, which may not exceed the maximum period of adult confinement as determined pursuant to this section.”
Appellant argues that the matter must be remanded for determination of the appropriate maximum confinement time. Although section 731 applies to juveniles who are committed to CYA, appellant argues that he is similarly situated to such juveniles and therefore failure to determine the maximum possible term of confinement infringed his constitutional equal protection right.
We summarily reject this contention at the outset because appellant is not similarly situated to the class of juveniles who are committed to CYA. Once the minor is committed to CYA, the juvenile court loses authority to directly supervise him or her. Therefore, the juvenile court has an evident need to set the maximum appropriate term of confinement. (In re Ronny P. (2004) 117 Cal.App.4th 1204, 1208.) Furthermore, we reject appellant’s contention that he is similarly situated to the class of juveniles who are removed from the physical custody of their parents and placed in physical confinement but who are not remanded to CYA. Appellant was allowed to remain in his parents’ home and the court did not impose any additional confinement time beyond the time already served. Thus, appellant does not fall within either of the two groups on which he bases his claim of disparate treatment.
Section 726, subdivision (c), provides that when a minor is removed from his parent’s physical custody and held in physical confinement, 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.”
However, we agree with appellant that the reference to a nine-year maximum term of confinement in the October 6, 2006, minute order should be stricken because it may create “a false impression that the trial court already considered what the appropriate maximum should be.” The juvenile court did not set an appropriate maximum term of confinement in light of all the facts. Therefore, the reference to a nine-year maximum confinement time may be misleading. (Cf. People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [clerk cannot supplement the judgment as pronounced].)
Respondent did not respond to this contention in its brief.
IV. The probation condition forbidding association with individuals known to appellant to be probationers or wards of the court is not overbroad.
Without objection, a probation condition was imposed forbidding “contact of any type with individuals known to [appellant] to be wards, probationers, or drug users or sellers, or gang members, during the period of wardship except with the Probation Officer’s permission.”
Appellant challenges the portion of this condition prohibiting contact with individuals known to him to be probationers or wards of the court. Appellant argues that the condition is overbroad because “the facts of the present case do not justify a condition that appellant not associate with any person he knows to be a ward or person on probation without permission.” Also, he contends that compliance with this condition is “nearly impossible” because he “will inevitably have contact with persons he knows to be wards or on probation” due to an asserted dramatic rise in the rates of young people who are prosecuted, incarcerated and placed on probation.
We agree with respondent that because appellant’s argument is based on the facts and circumstances of his individual case and does not present a pure issue of law, he forfeited this claim by failing to object on this ground at the dispositional hearing. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
In any event, appellant’s challenge lacks merit. A nearly identical condition was upheld in People v. Robinson (1988) 199 Cal.App.3d 816 (Robinson). There, the court upheld a probation condition forbidding defendant from associating “with anyone of known criminal record.” (Id. at p. 817.) The appellate court determined that the condition was reasonably related to the criminal offense, the offender and to the avoidance of future criminality. Also, it was not constitutionally infirm. (Id. at pp. 817-818.) For the reasons set forth in Robinson, we likewise conclude that the challenged condition, which contains both a knowledge requirement and a provision for obtaining permission to associate with a ward or probationer, is reasonable and is not unconstitutionally over broad.
DISPOSITION
The matter is remanded to the juvenile court for exercise of its discretion to determine whether the assault was a misdemeanor or a felony and to make the express declaration required by Welfare and Institutions Code section 702. If the juvenile court determines that the assault was a misdemeanor, it shall make any further orders that are necessary and proper under the circumstances. The following statement is stricken from the minute order of the October 6, 2006, jurisdictional proceeding: “Maximum confinement time 9 years.” The wardship order is affirmed in all other respects.
WE CONCUR: Vartabedian, Acting P.J. Cornell, J.