Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J36765
Sepulveda, J.
Following a contested jurisdictional hearing, the juvenile court sustained a petition alleging that the minor, Joseph B., committed attempted robbery (Pen. Code, §§ 211, 664) and resisting arrest (Pen. Code, § 148, subd. (a)); the court declared the minor to be a ward of the court pursuant to Welfare and Institutions Code section 602, and placed him on probation. The minor appeals from the orders of the juvenile court, arguing that there was insufficient evidence that he resisted arrest, that the juvenile court improperly ordered that he serve up to five weekends at juvenile hall at the discretion of his probation officer, and that he stay away from anyone listed in writing by his probation officer. We find that one argument of the minor has merit and accordingly order the probation order amended; in all other respects we affirm.
All further section references are to the Welfare and Institutions Code.
Background
The minor and several friends were walking toward the Solano Mall when they met up with the victim Myron J. According to the victim, the minor was encouraged by his associates to “ ‘just do it if you’re going to do it,’ ” and they pushed the minor toward the victim. The minor asked the victim for money, which the victim refused to give to him. The minor demanded the victim’s wallet; the victim again said no and pushed the minor and attempted to walk away. The rest of the group with the minor positioned themselves on either side of the victim and the minor asked the victim how much money he had on him. The victim replied that he did not have any money, but that he wouldn’t give it to the minor in any event. The minor pulled out a knife, held it out, and again demanded the victim’s wallet. The victim pretended to pull his wallet out, but took a step backwards and kicked the knife from the minor’s hand. The victim punched the minor, pushed another individual out of the way, and fled. The minor and his group initially chased after the victim, but gave up following him. The victim heard someone say “Yo, yo, yo, yo” loudly and he heard the word “gun.”
The victim fled to his church and the pastor called the police. Officer John Devine of the Fairfield Police Department responded and found the victim upset and shaken. After taking his statement, Officer Devine took the victim to the mall for a showup; the victim identified the minor and one other individual, Micah C., as having been involved in the attempted robbery. Officer Franco Cesar and Officer Pereira had responded to the mall and observed a group of four to five youths, including the minor, based upon a dispatched description of those involved in the attempted robbery. When the group initially saw the officers, they attempted to walk away, but were detained. Once the victim identified the minor and Micah from the group, the officers handcuffed Micah. When they went to handcuff the minor, “he began to resist and pull away from those officers.” A third officer responded and assisted in placing the minor under arrest.
The minor told Officer Devine that he discarded a “replica BB gun” at the mall when he saw the officers approaching. The nonoperable gun was located; “[i]t looked identical to a Heckler and Koch USP .45, which is a semiautomatic handgun.” Devine could not locate the knife.
The minor’s close friend, Jonathan S., testified that he met Micah and the minor and they walked up the trail toward the mall, where they encountered the victim. A confrontation occurred, where the minor and the victim “kind of like act[ed] tough towards each other” for a couple of minutes. The minor never displayed a knife, and the victim did not kick or hit the minor. No one pulled a knife, and while another individual in the group had Micah’s toy gun, he never displayed it. After the officers stopped the group at the mall, they had the group sit down. The officers then had the group stand up, and, without any reason, the officers tackled the minor, who had been complying with the officers’ requests. The minor did not try to escape.
Another good friend of the minor, Justin A., testified that he was with the minor, Micah, and Jonathan as they walked toward the mall on the trail. The minor and the victim “bumped into” each other and they exchanged words. The minor never displayed a knife, and he did not hit the victim. The victim never hit or kicked the minor. The minor never demanded money from the victim. The minor did not attempt to flee, and when the officers attempted to arrest him, the minor just “like turned his head a little bit, like he didn’t know what was going on.” The minor “was just walk[ing]” when the officers all tackled him at once.
Based upon this evidence, the juvenile court sustained the allegations of the section 602 petition, finding that the minor committed attempted robbery and resisting arrest. The court later declared the minor to be a ward of the court and placed him on probation. This timely appeal followed.
Discussion
A. Sufficiency of Evidence.
The minor contends that there was insufficient evidence to sustain the allegation that he resisted arrest, as the evidence was insufficient to prove that he acted willfully or that he resisted, delayed, or obstructed an officer. We disagree.
On a claim of insufficiency of the evidence in a juvenile case, we of course apply the same standard on review as we would in an adult criminal appeal and determine “ ‘whether, after reviewing 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.’ ” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371, italics omitted.) We review the entire record below to determine whether there is “ ‘substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Ibid.) We presume “ ‘the existence of every fact the trier could reasonably deduce from the evidence,’ ” and the mere fact that the circumstances might also support a contrary finding does not warrant reversal. (Id. at p. 1372.) All issues of credibility of the witnesses is for the trier of fact’s determination, not ours. (Ibid.) As the court put it, “ ‘Before the [order] of the [juvenile] court can be set aside for insufficiency of the evidence . . ., it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]’ ” (Ibid.)
The elements of resisting arrest are: “ ‘(1) the [minor] willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the [minor] knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.’ ” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) In order for an allegation of resisting arrest to be found true, the juvenile court must determine that the minor acted willfully, meaning that he “intended to do the proscribed act.” (People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 8.) Where an officer has to accomplish an arrest by means of physical restraint because of the suspect’s actions, those actions may constitute resisting arrest. (See In re Frederick B. (1987) 192 Cal.App.3d 79, 90, disapproved of on other grounds in In re Randy G. (2001) 26 Cal.4th 556, 567, fn. 2.) The minor argues on appeal that there was insufficient evidence that he acted willfully, or that he resisted the officers.
The minor’s own summary of the events supporting this allegation are as follows: “Officer Cesar, the arresting officer, testified that when he advised [the minor] that he was under arrest, [the minor] swore and said he had not done anything. When he tried to handcuff [the minor], [the minor] tensed up, making it difficult to handcuff him, so Officer Andy Carter did a leg sweep and put [the minor] on the ground. Once [the minor] was on the ground, it took another 20 or 25 seconds to get the handcuffs on him. Therefore, the total elapsed time was 50 or 55 seconds.” Additionally, Officer Devine testified, in response to defense counsel’s question as to whether the only resistance that the minor offered was stiffening up his body, “I remember it as stiffening up and turning or twisting to kind of get away, almost like, Whoa, whoa, what are you doing, what’s going on, and trying to get out of it.” Devine further testified that at one point the minor “started to try to get out of the officer’s hands.” Additionally, Officer Cesar testified that he advised the minor that he was under arrest, and “at that point he began to curse at us by saying, ‘Fuck you, I didn’t do anything.’ And then at that point, I was trying to put handcuffs [on him], he tensed up, so at that point it was a struggle to put the handcuffs on him so we put him on the ground. [Officer] Carter, who also arrived on the scene, did a leg sweep so he fell to the ground, and another officer came to assist us in putting handcuffs on him.” When asked if the struggle was over once the minor was on the ground, Officer Cesar said, “He was still struggling, but we were able to put his hands behind [his back] and put handcuffs on him.” Officer Cesar also testified that the minor knew what was going on, as they had advised him he was identified as having committed an attempted robbery and was being arrested.
Under every reasonable interpretation of this evidence, the juvenile court’s conclusion that the minor willfully resisted being arrested was supported by substantial evidence. That the minor’s friends testified to the contrary is of no import, as issues of credibility are within the juvenile court’s province, not ours.
B. The Juvenile Court’s Delegation of Discretion to the Probation Officer.
The minor also contends that the juvenile court improperly ordered that the probation officer would have the discretion to determine whether the minor was to serve up to five days at juvenile hall and what individuals he would be restricted from associating with. We agree with the first of these contentions, but disagree with the second.
The minor did not object to either of these probation conditions below. The California Supreme Court recently decided that such challenges to probation conditions are not forfeited by failure to object below (In re Sheena K. (2007) 40 Cal.4th 875); we therefore reach the merits of the issues.
The juvenile court ordered, as part of its dispositional order placing the minor on probation, that he was ordered to serve up to five weekends at juvenile hall, at the discretion of his probation officer. This order was apparently based upon the probation department’s recommendation that the minor “as a limit-setting consequence for non-compliance with court orders, . . . spend five discretionary weekends at . . . Juvenile [Hall].” This order is referred to by both parties as imposition of “Ricardo M. time,” based upon In re Ricardo M. (1975) 52 Cal.App.3d 744, 746 (Ricardo M.), where the court upheld an order that a minor spend not less than 5 nor more than 20 days in juvenile hall, with the exact number of days to be determined by his juvenile hall staff, based upon the minor’s attitude and cooperation. Since juvenile hall was run by the probation department, the order in essence delegated the discretion for determining the amount of time Ricardo M. would spend in juvenile hall to probation, which the court found had been at least tacitly approved in In re Bacon (1966) 240 Cal.App.2d 34 (disapproved of on other grounds in In re Brown (1973) 9 Cal.3d 612, 623). (Ricardo M., supra, 52 Cal.ApP.3d at 752.) Both the minor and the respondent agree that the “Ricardo M. time” ordered by the juvenile court in the present case was contemplated as incarceration time to be imposed only for violations of probation, and we evaluate it in that light.
The minor argues that amendments to section 777 under Proposition 21, dealing with violations of probation in juvenile cases, has eliminated the availability of “Ricardo M. time” as a condition of probation. When Ricardo M., supra, 52 Cal.App.3d 744 was decided, section 777 made no reference to any such conditions of probation. Later, in 1981, section 777 was amended to include language specifically approving of probation conditions which imposed, but stayed, incarceration time as an initial condition of probation. As former subdivision (e) of section 777 read, “The filing of a supplemental petition and the hearing thereon shall not be required for the commitment of a minor to a county institution for a period of 30 days or less pursuant to an original or a previous order imposing a specified time in custody and staying the enforcement of the order subject to a subsequent violation of a condition or conditions of probation, provided that in order to make the commitment, the court finds at a hearing that the minor has violated a condition of probation.” (Italics added.) Otherwise, section 777 required that in order for the juvenile court to consider an alleged violation of probation, a supplemental petition had to be filed alleging that prior rehabilitative efforts had been ineffective, and the probation violation had to be proven beyond a reasonable doubt with evidence otherwise admissible at a jurisdictional hearing. After subdivision (e) was added, courts continued to approve of the imposition of so-called “Ricardo M. time.” (See, e.g., In re Lance W. (1985) 37 Cal.3d 873, 897-899; In re Domanic B. (1994) 23 Cal.App.4th 366, 373.)
Proposition 21 did away with the cumbersome procedure previously required for proving probation violations in juvenile cases and replaced it with a procedure similar to that used in adult criminal cases. The specific provision of former subsection (e) no longer exists—section 777 simply requires a noticed hearing to revoke a juvenile offender’s probation.
We previously granted respondent’s request to take judicial notice of those portions of the March 2000 primary election ballot pamphlet dealing with Proposition 21.
The order in the present case, however, is not a true “Ricardo M. time” order, as it delegates to the probation officer the determination of how much time the juvenile will spend in juvenile hall, within a certain set parameters, for violations of probation including those based on conduct by the minor when he is not housed at juvenile hall. Ricardo M., supra, 52 Cal.App.3d 744 specifically approved of the delegation of the determination of the specific number of days the minor was to serve in juvenile hall, based upon his conduct within the facility, as it was run by the probation department and the minor was under the discretionary management of the probation department while confined there. The actual order imposed in the present case, as least as stated on the record by the juvenile court (and as apparently understood by both parties), indicates the juvenile hall time would be imposed by the probation officer “as a tool to ensure that you do comply with [the probationary] terms imposed.” The probationary terms referenced by the court apparently included all the terms the court had just imposed, which governed his conduct outside the facility.
We agree, therefore, that it was error to allow the probation department to alter the minor’s disposition unilaterally, by imposing up to five weekends in juvenile hall, based upon the probation officer’s determination that the minor had violated the terms of his probation. Such an order violates the requirements of section 777, requiring a noticed hearing for probation violations. In re Eddie M. (2003) 31 Cal.4th 480, 504-508 held that the current notice and hearing requirements of section 777 are required in order to provide due process under the Sixth Amendment to the United States Constitution.
However, nothing in Proposition 21, nor in the ballot pamphlet description of it, indicates an intent to overrule Ricardo M., supra, 52 Cal.App.3d 744 or limit the juvenile court’s ability to impose true “Ricardo M. time.” The juvenile court’s discretion to impose “Ricardo M. time” existed before subdivision (e) was added to section 777, and it survives its elimination from section 777. The juvenile court in this case could have imposed, for example, a dispositional term of up to five weekends in juvenile hall, leaving the exact number of weekends up to the probation department, based upon the minor’s conduct while confined there. Such an order would have been a true “Ricardo M. time” order and would still be valid after the passage of Proposition 21.
All that prior section 777, subdivision (e) did was to eliminate the requirement of filing a supplemental petition in order to impose up to 30 days for a probation violation; it still specifically required a hearing before the court to determine if such a violation had occurred.
The minor also contends that the juvenile court improperly delegated to the probation officer the determination of which individuals the minor would be prohibited from associating with, citing In re Kacy S. (1998) 68 Cal.App.4th 704. In In re Kacy S., the court concluded that a probation condition requiring that the minor “ ‘not associate with any persons not approved by his probation officer’ ” was overly broad and unreasonable, because it “literally requires the probation officer to approve [the minor’s] associat[ion] with ‘persons’ such as grocery clerks, mailcarriers and health care providers. Nor does the present record justify such a sweeping limitation on [the minor’s] liberty. [Citation.]” (Id. at pp. 712-713.) We disagree with the minor’s contention that In re Kacy S. is controlling here.
In the present case, the juvenile court specifically ordered the minor to stay away from the victim and from one of the other minors involved in the attempted robbery, Micah C. The court then went on to order that the minor additionally stay away “from anyone else that Probation tells you to; so long as they’ve told you in writing, then you must stay away from that person as well.” The order in the present case is not an In re Kacy S. type of order, but rather is the type of probation condition specifically approved of in cases such as In re Frank V. (1991) 233 Cal.App.3d 1232 and In re Byron B. (2004) 119 Cal.App.4th 1013. As the court in In re Byron B. explained, distinguishing In re Kacy S., supra, 68 Cal.App.4th 704, “The probation condition here referred to persons ‘disapproved.’ Thus, In re Frank V. applies. The juvenile court, acting in parens patriae, could limit appellant’s right of association in ways that it arguably could not limit an adult’s. . . . Here, as in Frank V., there was evidence that, solely in the case before the court, appellant’s misconduct had been influenced by other people. Indeed, here appellant acted in concert with two other delinquents.” (In re Byron, supra, at p. 1018.) Further, in the present case, the condition of probation was not vague, as it required the probation department to give the minor written notice of those additional individuals that he was not to associate with. This portion of the juvenile court’s dispositional order was thus valid.
Disposition
The order of probation is ordered modified to strike the condition giving the probation department the discretion to impose up to five weekends in juvenile hall for violations of probation. In all other respects, the judgment is affirmed.
We concur: Reardon, Acting P. J., Rivera, J.