Opinion
B202490
10-29-2008
In re G.E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. G.E., Defendant and Appellant.
Jonathan B. Steiner and Ann Krausz, under appointments 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, Senior Assistant Attorney General, Kristofer Jorstad and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
G.E. appeals from the juvenile courts order revoking his probation pursuant to Welfare and Institutions Code section 777 upon a finding that he violated conditions of probation. He was ordered to remain a ward of the court pursuant to Welfare and Institutions Code section 602 and placed in the camp-community placement program for six months. He contends the juvenile court erred in finding he violated his probation. For reasons stated in the opinion, we affirm the order revoking his probation and placing him in the camp-community program and modify the condition of probation relative to his association with persons possessing weapons.
FACTUAL AND PROCEDURAL SUMMARY
On September 5, 2006, appellant was declared a ward of the court pursuant to Welfare and Institutions Code section 602 upon his admission that he possessed live ammunition. (Pen. Code, § 12101, subd. (b).) He was released to the custody of his father and mother on the conditions proposed by the Probation Department, the reading of which appellant waived. Included in the terms and conditions of his probation were that he "[n]ot associate with individuals who are known gang members, or with persons engaged in graffiti or related activities," "[n]ot possess or have immediate access to weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, and knives," and "[n]ot associate with anyone who has possession of weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, and knives."
On August 22, 2007, a notice of probation violation was filed. It was alleged that appellant violated the conditions that he not associate with individuals who are known gang members, that he not possess or have immediate access to weapons of any kind, including firearms, and that he not associate with anyone who has possession of weapons of any kind.
The evidence at the hearing on the probation violations established that on August 7, 2007, Deputy Probation Officer Aldin Tatley responded to a residence on West Cherry in Compton to do a home check on a minor, G.H. When Officer Tatley arrived at the residence, G.H. was in the front yard with appellant. G.H. admitted he was a Fruit Town Piru gang member. Inside G.H.s bedroom there was a "graffiti shrine" to Fruit Town Piru. It was "written all over the walls in [G.H.s] room." G.H. has "other brothers. The whole family is from Fruit Town Piru."
On August 17, 2007, at approximately 5:10 p.m., Los Angeles Deputy Sheriff Russell Helbing went to a vacant house that had been "gutted by a fire" also on West Cherry in Compton. There he saw appellant, J.C., and a female standing at the back of the driveway between the garage and the house. J.C. and his family previously had lived at the house but recently had been evicted. When they lived at the residence, it was frequented by Fruit Town Piru gang members. Deputy Helbing believed J.C. was a member of that gang. J.C. admitted he was affiliated with Fruit Town Piru but claimed he was not an actual member. Directly behind the garage, Deputy Helbing found a small backpack that contained a loaded, operable firearm. When Deputy Helbing first saw J.C., J.C. was carrying a backpack. At no point did Deputy Helbing see appellant holding the backpack. Prior to opening the backpack, Deputy Helbing could not see the firearm.
Deputy Helbing was told by his partner that the partner had had prior contact with appellant and that appellant admitted he was a "Swan Blood." Also, while Deputy Helbing transported appellant to Century Station for booking, appellant admitted he was a "Swan Blood."
On August 18, 2007, Officer Tatley spoke to appellants mother who stated "she had basically washed her hands of [appellant], that he was completely beyond her control and she didnt want him in the home anymore. . . . [S]he said . . . that he was recently jumped into Fruit Town Piru, and that he was recently shot at about a week [before.]"
The juvenile court found by a preponderance of the evidence that appellant was in violation of the terms of probation that he not associate with gang members and not associate with people who are in possession of weapons.
In determining the appropriate disposition, the court stated it had looked through appellants file and noted the previous sustained petitions. The first was a Los Angeles County petition that alleged a violation of Penal Code section 71, threatening a public officer. The second was dated February 6, 2007, filed in Riverside County, alleging a violation of Penal Code section 242, a misdemeanor battery. The third petition was dated August 18, 2006, filed in Riverside County, alleging a violation of Penal Code section 12101, subdivision (b), possession of live ammunition.
I
Appellant contends the juvenile court erred in finding he had violated his probation. He first contends the probation condition that he not associate with anyone who possesses a weapon is unconstitutionally vague and violates due process in that a knowledge requirement is lacking. We agree. In the absence of an express requirement of knowledge, the probationary condition is unconstitutionally vague. (See In re Sheena K. (2007) 40 Cal.4th 875, 891.) We also agree there was insufficient evidence to conclude appellant knew J.C. had a firearm in his backpack and that finding appellant in violation of probation based on that condition cannot stand.
Appellant, however, was also ordered not to associate with individuals who were known gang members. The evidence here was overwhelming that he was associating with people he knew to be gang members and probation was properly revoked on that basis. Appellant does not challenge the validity of this condition or the sufficiency of evidence to support the violation but argues remand is necessary because the juvenile court might have reached a different disposition upon finding appellant in violation of only one probation condition. We disagree.
In determining the appropriate disposition for appellant, the trial court reviewed appellants file and observed there were a number of separate petitions that were sustained in both Los Angeles County and Riverside County. The court observed appellant "was released from his short-term camp commitment on June 21st, [sic] 2007, and less than two months later was arrested on these allegations of a violation of the terms of his probation. Theyre allegations that . . . are very serious as far as ongoing gang involvement and involving a weapon." The court stated it was very concerned about appellants "long history of violent issues and weapons-related stuff and gang-related stuff. [¶] [It observed appellant had] been in camp already once. It didnt take long before [appellant was] out that there were more problems. And it looks like [appellants] gang involvement actually in lots of ways is getting even more intense. That will end up killing [appellant.] [The court observed appellant] probably know[s] better than [the court does] how dangerous it is out there on the street. [¶] [The court warned if appellant continues] with that life, [he is] going to have a short one. [The court stated it did not] think that is what [appellant] deserve[s] . . . that [appellant] can have a better life than that. But [appellant is] going to have to work at it. So [the court] would like [appellant] to look at that while [he is] at camp the next six months, what kind of life [he] want[s] to have."
Only one violation was required for a revocation of probation. (Welf. & Inst. Code, § 777, subd. (a)(2); Pen. Code, § 1203.2, subd. (a).) Appellant had already been to camp once before on a short-term commitment and shortly after his release violated his probation. The juvenile court was quite concerned with appellants overall gang lifestyle, noting that his involvement was getting worse. Based on the juvenile courts comments at the disposition hearing, there is no reasonable probability that the disposition would have been more favorable to appellant had he been found in violation of only one probation condition. Appellant has failed to establish remand is necessary.
DISPOSITION
The order revoking probation and placing appellant in a camp community program for six months is affirmed. The condition of probation that appellant not associate with persons in possession of weapons is modified to read that appellant is not to "associate with anyone he knows or has reason to know has possession of weapons of any kind, including but not limited to: firearms, firearm facsimiles, nunchakus, martial arts weaponry, and knives."
We concur:
MANELLA, J.
SUZUKAWA, J.