Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ119730, Gregory S. Tavill and Charles J. Koosed, Judges.
Judge Tavill of the San Bernardino County Superior Court presided over the jurisdictional hearing. The case was then transferred to the Riverside County Superior Court, where Judge Koosed presided over the dispositional hearing.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
After minor D.R.’s team won a soccer match, an unidentified adult punched him in the face, then ran away. According to members of the opposing team, the minor responded by pulling a gun out of a backpack, pointing it at them, and telling them to “be afraid.” One witness testified that the gun was real; another witness, however, testified that it seemed to be an air gun. According to members of the minor’s own team, he simply tried to find out who had hit him; he did not have a gun at all.
The juvenile court found that the minor had committed brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)), possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)), and disturbing the peace (Pen. Code, § 415). It ordered him to serve 55 days in juvenile hall (which was satisfied by credit for time already served) and placed him on supervised probation.
In this appeal, the minor contends:
1. There was insufficient evidence that the gun was a firearm.
2. There was insufficient evidence that the gun was a deadly weapon.
3. The crimes of brandishing a deadly weapon and possession of a firearm by a minor are mutually exclusive; hence, the juvenile court erred by finding that the minor committed both.
4. There was insufficient evidence that the minor was not acting in self-defense.
5. Two of the probation conditions are unconstitutionally vague and overbroad.
6. There are clerical errors in two other probation conditions.
The People all but concede that the crime of possession of a firearm by a minor requires a firearm, whereas the crime of brandishing a deadly weapon requires a deadly weapon other than a firearm. The juvenile court expressly found that the gun in this case was a firearm. Accordingly, we will strike the finding that the minor committed brandishing a deadly weapon.
We also conclude that the probation condition prohibiting the minor from moving without the probation officer’s consent is overbroad, and the probation condition requiring the minor to keep the probation officer informed of his “whereabouts, associates and activities” is vague. These probation conditions, too, must be stricken.
The People concede that there is a clerical error in one of the probation conditions. Otherwise, we find no error.
I
FACTUAL BACKGROUND
A. Background.
On April 1, 2010, the minor played in a soccer match at the Ontario Soccer Complex. His team won, 4-3. After the match ended, an older man came up behind the minor and hit him in the mouth, drawing blood, then ran away.
B. The Opposing Team Members’ Account.
Three members of the opposing team testified for the prosecution. Taking their testimony collectively, it showed the following.
After being hit, the minor took a gun out of a backpack. He pointed it at a group of about 30 people, including members of the opposing team. He called them pussies, whores, and bitches. He also told them “to be afraid because the guy had punched him....” Some people ran. One girl called 911.
The minor’s brother came over and grabbed the gun away from him. The brother, too, pointed the gun at the group. He then put the gun back in a black backpack. He told them to remember his face, because they had hit his brother. When somebody said the police were coming, the minor, his brother, and some other youths ran toward a black car in the parking lot.
Denys Landa Verde-Rauda described the gun as a revolver. He added, “It was real. It looked like it was real.” He was afraid.
Henry Gonzalez-Taylor, however, testified that the gun “didn’t seem real.” “It seemed like an air gun.” He explained that “the part where you grab it, it was very big.” However, he was afraid and “left running.”
Jorge Gonzalez testified that he did not know if the gun was “for real or not.” He added, “I wasn’t that close. I just saw something black.”
C. The Police Investigation.
Officer Anthony Ortiz was dispatched to the soccer complex in response to a report that a male Hispanic with a Mohawk was illegally displaying a weapon. He stopped a black Mercedes that was trying to leave the parking lot. There were six people in the car; one of them was the minor. The minor had black hair with a distinctive bleached-blond streak that one witness described as a Mohawk. Officer Ortiz realized that he matched the suspect’s description.
In field showups, two members of the opposing team identified the minor as the first person who had brandished the gun. The police searched the car but never found the gun.
The minor told police that “the whole incident started a few weeks ago, ” when he had gotten into a fight at the same location, and he had “kicked their ass.”
D. The Minor’s Team Members’ Account.
All five of the people who were in the Mercedes with the minor testified for the defense. Four of them were members of his team. The fifth was Wendy R., who was the driver of the Mercedes. Again, taking their testimony collectively, it showed the following.
After being hit, the minor was angry. He walked over to some people who were with the opposing team and yelled, “[W]ho hit me, who hit me[?]” They just laughed at him. One witness felt that they were “protecting the guy who ran away.” Wendy came over and told the minor they should leave. He walked back to the car, accompanied by two or three of the defense witnesses.
According to these witnesses, at no time was the minor (or anyone else) holding a gun. He never even had a black backpack.
II
THE SUFFICIENCY OF THE EVIDENCE
THAT THE GUN WAS A FIREARM
The minor contends that there was insufficient evidence that the gun that he possessed was a firearm.
“In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence — that is, evidence that is reasonable, credible, and of solid value — supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the [trier of fact] reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 638-639; accord, In re Manuel G. (1997) 16 Cal.4th 805, 822.)
“Moreover, the testimony of a single witness is sufficient for the proof of any fact. [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1030-1031.) “In our limited role on appeal, ‘[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Letnerand Tobin (2010) 50 Cal.4th 99, 161-162.)
Here, one witness, Denys Landa Verde-Rauda, testified that the gun was real. The minor complains that Landa Verde-Rauda “did not explain how he could tell the gun was real....” Nevertheless, his testimony constitutes substantial evidence. Defense counsel could have cross-examined him on this point but did not. Henry Gonzalez-Taylor’s contrary testimony that the gun “didn’t seem real” simply raised an issue of fact, which it was up to the juvenile court to resolve.
The juvenile court not only found that the gun was real but also explained the basis for this finding in some detail. It felt that Gonzalez-Taylor “was hedging when he was trying to say that... the gun didn’t seem real.... [A]ll of his actions, all of his behavior were exactly the way someone would behave in response to someone with a real gun. His testimony that the gun didn’t seem real seemed... to be an effort to minimize the minor’s behavior.... Like I said, primarily his reaction to the gun, [the] crowd’s reaction to the gun, was all in reaction to a real gun, not a fake gun.” It also stated, “[W]hy would [the minor’s brother] leave with the gun unless the gun is real?” The minor does not even attempt to explain why this reasoning is wrong.
Instead, the minor asserts that, even though the juvenile court found that the gun was “real, ” it supposedly made no finding as to whether it was a firearm or an air gun. This is mere wordplay. Obviously, it did not mean that the gun was “real” as opposed to imaginary. Gonzalez-Taylor had already testified that he was not sure whether the gun was “real” or “an air gun.” In closing argument, defense counsel had similarly distinguished “a real gun” from “BB guns, airsoft guns, pellet guns.” In context, the juvenile court clearly meant that the gun was a firearm, not an air gun.
We therefore conclude that there was sufficient evidence to support the finding that the minor was in possession of a firearm.
III
THE FINDING THAT THE MINOR COMMITTED BOTH
BRANDISHING A DEADLY WEAPON AND POSSESSION OF A FIREARM
The minor contends that the crimes of brandishing a deadly weapon and possession of a firearm by a minor are mutually exclusive, so that he cannot be guilty of both.
The petition alleged that the minor committed the crime of brandishing a deadly weapon, in violation of Penal Code section 417, subdivision (a)(1) (count 1), and the crime of possession of a firearm by a minor, in violation of Penal Code section 12101, subdivision (a)(1) (count 2). The juvenile court found both allegations to be true.
Possession of a firearm by a minor requires that the perpetrator “possess a pistol, revolver, or other firearm capable of being concealed upon the person.” (Pen. Code, § 12101, subd. (a)(1).)
Brandishing a deadly weapon requires that the perpetrator “draw[] or exhibit[] any deadly weapon whatsoever, other than a firearm....” (Pen. Code, § 417, subd. (a)(1), italics added.) However, the statute books also include the crime of brandishing a firearm, which is essentially identical to the crime of brandishing a deadly weapon, except that it requires that the perpetrator “draw[] or exhibit[] any firearm....” (Pen. Code, § 417, subd. (a)(2), italics added.)
For purposes of Penal Code section 12101, “firearm” is defined in Penal Code section 12001, subdivision (b). For purposes of Penal Code section 417, “firearm” has been defined by case law. (In re Jose A. (1992) 5 Cal.App.4th 697, 700.) These definitions, however, are essentially the same; they both apply to a device that expels a projectile by means of an explosion or other form of combustion. (Compare Pen. Code, § 12001, subd. (b) with Jose A., at p. 700.) Thus, neither definition includes an air gun. (Jose A., at pp. 700-701.) The minor concludes that Penal Code section 12101, subdivision (a)(1) and Penal Code section 417, subdivision (a)(1) are mutually exclusive, in the sense that a person cannot be found guilty of both based on the same weapon.
It could be argued, however, that Penal Code section 417, subdivision (a)(1) actually defines a lesser included offense of Penal Code section 417, subdivision (a)(2). If so, then the minor could be found to have committed brandishing a deadly weapon, even if the weapon he brandished was a firearm. In the minor’s view, the fact that the deadly weapon brandished is not a firearm is an element of the offense of brandishing a deadly weapon. This would mean that every time the prosecution charged a defendant under Penal Code section 417, subdivision (a)(1), it would have to prove, beyond a reasonable doubt, that the deadly weapon was not a firearm. When, as in this case, it is uncertain whether the weapon was a real gun or an air gun, that may be impossible. Moreover, even if a defendant was charged in the alternative with both brandishing a firearm and brandishing a deadly weapon, if the jury was not convinced beyond a reasonable doubt that the weapon either was or was not a firearm, it could not find the defendant guilty of either form of brandishing; it would have to acquit. This seems absurd. Moreover, the same absurdity would infect other crimes. (Compare Pen. Code, § 245, subd. (a)(1) [assault with a deadly weapon other than a firearm] with id., § 245, subd. (a)(2) [assault with a firearm]; compare Pen. Code, § 273a, subd. (b) [child endangerment under circumstances or conditions other than those likely to produce great bodily harm or death] with id., § 273a, subd. (a) [child endangerment under circumstances or conditions likely to produce great bodily harm or death].) On this view, the words “deadly weapon... other than a firearm” in Penal Code section 417, subdivision (a)(1) simply mean “a weapon that has not been pleaded, proved, and found to be a firearm.”
Alternatively, it could also be argued that both findings are valid under the inconsistent-verdict rule. At least “[a]s a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] For example, ‘if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both.’ [Citation.] Although ‘“error, ” in the sense that the jury has not followed the court’s instructions, most certainly has occurred’ in such situations, ‘it is unclear whose ox has been gored.’ [Citation.] It is possible that the jury arrived at an inconsistent conclusion through ‘mistake, compromise, or lenity.’ [Citation.] Thus, if a defendant is given the benefit of an acquittal on the count on which he was acquitted, ‘it is neither irrational nor illogical’ to require him to accept the burden of conviction on the count on which the jury convicted. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 600; accord United States v. Powell (1984) 469 U.S. 57, 64–69 [105 S.Ct. 471, 83 L.Ed.2d 461].)
It is not clear, however, whether the inconsistent-verdict rule should apply to two inconsistent findings of one defendant’s guilt. In that case, it is quite clear whose ox has been gored the defendant’s. The defendant does not get any benefit in exchange for a burden; rather, he or she must bear two seemingly contradictory burdens. No compromise or lenity is involved. The California Supreme Court has noted that the inconsistent-verdict rule, in its usual form, “does not expressly address the situation” of two inconsistent findings of guilt. (People v. Avila, supra, 38 Cal.4th at p. 601.)
Witkin and Epstein state, “[A]ny verdict of guilty that is sufficiently certain is a valid verdict even though the jury’s action in returning it was, in a legal sense, inconsistent with its action in returning another verdict of acquittal or guilt of a different offense.” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) § 75, p. 110, italics added.) However, they cite no authority for the italicized language.
In this case, however, the People have not argued that the minor could properly be found to have violated Penal Code section 417, subdivision (a)(1) even if he brandished a firearm. Moreover, they have not argued that the inconsistent-verdict rule should apply. Rather, they argue only that the juvenile court actually found that the minor violated Penal Code section 417, subdivision (a)(2). They assert that this was a mere “immaterial” variance between pleading and proof. We conclude that the People have forfeited the other arguments that we have sketched out, and we will not address them further.
With respect to the one argument that the People do raise, the finding that the minor was guilty of a greater offense that was never pleaded cannot be regarded as immaterial. “It is fundamental that ‘[w]hen a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” [Citation.]’ [Citation.]” (People v. Lohbauer (1981) 29 Cal.3d 364, 368.)
The cases that the People cite are not in point. One is People v. Powell (1974) 40 Cal.App.3d 107, in which the information alleged that the crime was committed in Los Angeles County, but the evidence showed that it was actually committed in Kern County. (Id. at pp. 123-124.) The People also cite People v. LaMarr (1942) 20 Cal.2d 705. There, the information alleged that the defendant committed bigamy by marrying Selma LaMarr when he was already married to Wally LaMarr; however, the evidence at trial showed that he was actually already married to Josephine LaMarr when he married both Wally and Selma. (Id. at pp. 706-707.) Thus, these cases involved variances as to how the crime was committed, not as to what the crime was.
In sum, then, the only argument that the People have raised in response to the minor’s contention lacks merit. As discussed in part II, ante, the juvenile court found that the gun that the minor possessed and brandished was a firearm. We conclude that its finding that the minor committed the offense of brandishing a deadly weapon other than a firearm, in violation of Penal Code section 417, subdivision (a)(1), must be stricken.
In light of this conclusion, we need not discuss the minor’s alternative contention that there was insufficient evidence that the gun was a deadly weapon.
IV
THE SUFFICIENCY OF THE EVIDENCE
THAT THE MINOR WAS NOT ACTING IN SELF-DEFENSE
The minor contends that there was insufficient evidence that he was not acting in self-defense.
For self-defense to apply, the minor must have “reasonably believed he was in imminent danger of violence, [must have] reasonably believed the immediate use of force was necessary to defend himself, and [must have] used no more force than was reasonably necessary to defend against the threat. [Citation.]” (People v. Hernandez (2011) 51 Cal.4th 733, 747.)
It is undisputed that an older man “blind-sided” the minor. However, the juvenile court could reasonably find that, by the time the minor displayed the gun, he did not reasonably believe his actions were necessary to defend against a threat from the man. He pointed the gun at “everybody” in a group of about 30 people. According to Landa Verde-Rauda, “[H]e was looking for the person who had hit him.” He threatened everyone in the crowd, telling them to “be afraid.”
Also, according to the defense witnesses, immediately after hitting the minor, the man ran away. The minor argues that the man may have run away only after — and because — he drew and displayed the gun. The juvenile court, however, could draw the opposite inference. In any event, the minor evidently continued to possess and to brandish the gun even after the man who had hit him was gone.
V
PARTICULAR PROBATION CONDITIONS
A. Vague and Overbroad Probation Conditions.
One of the minor’s probation conditions required him “[n]ot [to] move without prior consent of the Probation Officer.” Another required him, in part, to “keep parent(s)/guardian(s) and the Probation Officer informed of whereabouts, associates, and activities.” The minor contends that these two conditions are unconstitutionally vague and overbroad.
1. Prohibition on moving without the probation officer’s consent.
“A [probation condition] is unconstitutionally overbroad... if it (1) ‘impinge[s] on constitutional rights, ’ and (2) is not ‘tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ [Citations.]” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
People v. Bauer (1989) 211 Cal.App.3d 937 held that a probation condition requiring an adult defendant to obtain the probation officer’s approval of his residence impinges on the right to travel; hence, it is overbroad, unless it is narrowly tailored to the defendant. (Id. at pp. 943-945.) The condition here does not relate to the minor’s particular crimes, nor does it relate to his individual potential for future criminality. Moreover, while this case involves a minor, rather than an adult, we fail to perceive what parens patriae interest the state has in prohibiting the minor from moving without the probation officer’s consent. If anything, it has even less of an interest than if he were an adult, because his parents can vet any move — indeed, presumably, it would be their idea.
2. Requirement that the minor inform the probation officer of his “whereabouts, associates and activities.”
So far, we have been dealing with overbreadth. However, a probation condition may also be unconstitutionally vague.
“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, ’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
The requirement that the minor keep the probation officer informed of his “whereabouts, associates, and activities” is hopelessly vague. First, “whereabouts” is vague with respect to scale. How large must a change of location be to trigger the duty to inform? From room to room? From home to the supermarket? From home to school? From city to city? Second, “associates” is similarly vague with respect to the necessary relationship between the minor and the other person. Presumably a good friend would qualify. But what about a friendly neighbor? A classmate? A soccer teammate? An adult supervisor, such as a coach? An adult uncle? Would it matter how much time the minor spent with the other person? Third, “activities, ” too, is vague. A person typically engages hundreds of activities over the course of a day. Indeed, taken literally, this would seem to impose a huge administrative burden on the probation officer. But if it is not to be taken literally, where is the line to be drawn? Quite frankly, if we had to keep someone informed of our whereabouts, associates, and activities, we would be at a loss to know how to proceed.
Admittedly, in In re Ramon M. (2009) 178 Cal.App.4th 665, the court upheld a probation condition that stated, “‘Your associates are to be approved by your probation officer and your parents/guardian. You are not to associate with any individuals whom you have met while in any County Institutions. You are not to associate with any member of the Barrio Pobre gang or any other gang as directed by your probation officer.’” (Id. at p. 676, italics added.) The court rejected the contention that “associates” could include “grocery clerks, mailmen or health care providers”: “The context of the provision relates to gang members and persons Ramon met in county institutions. No reasonable person would read this provision to mean that Ramon is required to seek prior approval to encounter people he does not yet know, or encountered only in incidental or formal situations. [Citation.]” (Id. at p. 677.) Here, by contrast, the probation condition includes no such narrowing language.
Presumably the purpose of the probation condition is to keep the minor from sneaking around — i.e., from deliberately concealing his activities and associates from his parents and the probation officer, because he knows they would disapprove of them. The same purpose, however, could be accomplished by a more specifically worded probation condition. (See, e.g., In re Sheena K., supra, 40 Cal.4th at pp. 890-891 [probation condition prohibiting minor from associating with anyone whom she knew her probation officer had disapproved would be constitutional].)
The People have not suggested that we could or should modify the challenged conditions so as to make them constitutional. We conclude that both conditions must be stricken.
B. Inaccurate Probation Conditions.
The minor contends that there are clerical errors in two other probation conditions.
1. Additional Factual and Procedural Background.
The probation report recommended, as a condition of probation, that the minor “[p]articipate in counseling/psychotherapy as deemed necessary by parent(s)/guardian(s)/ Probation Officer/therapist, to include anger management, and to be enrolled within 30 days of disposition....”
At the dispositional hearing, the prosecutor argued that the minor should not be allowed to play soccer until he had completed anger management. The juvenile court agreed. It added, “These [terms] are just until the next review hearing.... [M]aybe I’ll let him back on the soccer field it he shows me progress in anger management classes.”
The juvenile court then ordered, “On [the] terms and conditions of probation as set forth and attached, but I am going to modify them. I am going to add term N. I want... no organized soccer events.” “Other than that, all of the other terms — he’s to enroll in the anger management — that’s on there as term G — within 30 days.”
The clerk’s minute order stated that the minor was required to “[p]articipate in counseling/psychotherapy as deemed necessary by parent(s)/guardian(s)/PO/therapist.”
The clerk’s minute order also stated: “Minor is not to participate in any organized events.” (Capitalization omitted; italics added.)
2. Counseling.
The minor contends that the juvenile court only ordered him to participate in anger management, not in counseling in general. Not so. The juvenile court adopted all of the probation officer’s recommendations, including the condition that the minor participate in whatever counseling might be deemed necessary. Obviously, the court expected this to include anger management, but it was not necessarily limited to it.
3. Organized Soccer Events.
The minor also contends that the minute order erroneously prohibits him from participating in any organized events, as opposed to organized soccer events. The People concede the point. We agree. We will direct the juvenile court to correct the minute order.
VI
DISPOSITION
The judgment is modified, as follows:
1. The true finding on count 1 (brandishing a deadly weapon) is stricken. (See part III, ante.)
2. The following probation condition is stricken (see part V.A.1, ante):
“Not move without prior consent of the Probation Officer.”
3. The following probation condition is modified so as to strike the “keep informed” portion (see part V.A.2, ante), as follows:
From: “Obey and keep parent(s)/guardian(s) and the Probation Officer informed of whereabouts, associates, and activities.”
To: “Obey parent(s)/guardian(s) and the Probation Officer.”
4. The following probation condition is modified (see part V.B.3, ante):
From: “Minor is not to participate in any organized events.” (Capitalization omitted.)
To: “Minor is not to participate in any organized soccer events.”
At the request of either party, if made within 30 days after the issuance of our remittitur, the juvenile court shall conduct a new disposition hearing. In the absence of such a request, the judgment shall be deemed affirmed as modified. (See In re E.O., supra, 188 Cal.App.4th at p. 1158.)
We concur: RAMIREZ P.J., KING J.
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