Opinion
A100147.
7-11-2003
In re KEIVON W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KEIVON W., Defendant and Appellant.
Appellant Keivon W. appeals from the San Mateo County Juvenile Courts jurisdictional and dispositional orders, contending the minute order mistakenly indicates he was convicted of two felonies, rather than one, and that the gang conditions of probation should be stricken. We direct the trial court to amend the minute order as discussed below.
FACTUAL AND PROCEDURAL HISTORY
On December 13, 2001, defendant, then 13 years old, took part in the theft of several compact disks from the backpack of a student. During the course of the theft, Keivon and another student pushed the victim against a wall at his school.
On December 31, 2001, the San Mateo County District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602 , charging appellant with two counts: count 1 charged him with felony robbery (Pen. Code, § 212.5, subd. (c)), and count 2 charged him with felony false imprisonment (Pen. Code, §§ 236 & 237).
A jurisdictional hearing took palace on July 29, 2002. After hearing evidence, the court stated: "I find beyond a reasonable doubt the allegations set forth in Count 1 have been sustained. [P] With reference to Count 2, defendants conduct . . . ." At that point, the trial judge engaged in a discussion with appellants father, and made no further reference to Count 2. The minute order reflecting the jurisdictional order stated: "The Court finds: beyond a reasonable doubt the allegation of the 12/31/02 petition are found to be true. (Cts 1 PC 212.5(c). Ct 2 PC 236/237) of the 12/31/02 petition found not true. [P] The allegations of Cts 1 & 2 of the 12/31/02 petition(s) filed/corrected/amended herein, are sustained and found to be a misdemeanor/felony offense." The term "felony offense" was circled.
A portion of the handwriting at the end of the line was cut off in copying, and it is not possible to tell from the record on appeal whether there was a closing parenthesis.
The court ordered appellants care, custody, and control to be placed under the supervision of a probation officer, in his mothers home. The court imposed several conditions of probation. During the course of its ruling, the court stated, apparently referring to the recommendations in the probation report: "Youre not to-Im not sure why this gang request is in here." Appellants counsel replied: "Your Honor, I was reviewing the report; and the only possible indication-I would object to the gang recommendation— the only possible reason is the probation officer assumes, as set forth on Page 9, that it looks to her like in this offense the Minor appears to be with a gang of friends. [P] I dont think that theres ample support for gang orders." The court asked appellant, "Are you a member of any gang?" Appellant replied, "No, sir." The court stated, "Dont be. [P] I dont want you to hang out with [the other two perpetrators] anymore. Youre just going to get in trouble if you do. [P] Probation officer makes you a leader and following into bad companionship. You cannot hang out with [one of the other perpetrators]. [P] Youre not to have any contact with [the victim]. " The minute order stated that appellants probation was subject to several conditions. Among those were conditions requiring that appellant not be a member of any gang, not associate with a gang member, participate in any gang activity, or engage in other gang-related behavior.
The gang conditions that were checked on the minute order specified in full: "The Minor shall not be a member of any gang, (meaning a `criminal street gang as defined in Penal Code section 186.22(f)), nor associate with any person known by the Minor to be a gang member, or with anyone with whom a parent or Probation Officer prohibits association. [P] The Minor shall not be in any areas where gang members are known by him/her to meet or get together, or areas known by him/her for gang-related activity, nor participate in any gang activity. [P] The Minor shall not wear, possess, or display any clothing or item or display any hand signs with gang significance or which are indications of gang membership, i.e., colors, symbols, insignias, numbers, monikers, patterns, etc., known by him/her to be such, as may be identified as such, by law enforcement or Probation Officers. [P] The Minor shall not obtain any new tattoos, brands, burns, or voluntary scarring. He/she shall not obtain any piercings, voluntary eyebrow or head shaving with gang significance, or not in compliance with Penal Code Section 652(a). The Probation Officer may arrange for, and the Minor must submit to, photographing of any tattoos, brands, scars, or piercings that exist as of the date of this order. [P] The Minor shall not be present at a courtroom or court lobby when any case related to gang activity or involving an identified gang member is being conducted, unless he/she is a party to proceedings being conducted at that time in the facility, is a subpoenaed witness in a proceeding, or has permission from his/her Probation Officer to attend or observe proceedings."
This timely appeal followed.
DISCUSSION
Appellant has two contentions on appeal. First, he contends the minute order must be stricken because it erroneously reflects a finding that he committed false imprisonment. Second, he contends the gang conditions of probation should be stricken because the court did not impose them.
As to appellants first contention, the People concede the juvenile court did not sustain the allegation as to count 2 (false imprisonment). They take the position that, although unclear, the minute order reflects a not true finding for the false imprisonment charge. As to appellants second contention, the People concede that the trial court did not impose gang conditions and that the minute order is in error. The People also concede that, where there is a discrepancy between the oral pronouncement of the trial court and the minute order, the oral pronouncement prevails. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Accordingly, the parties agree that the minute order should be amended to reflect a not true finding on count 2 and that the gang conditions of probation should be stricken.
We agree with the parties on both points. The juvenile court did not sustain the allegation as to count 2. However, although the minute order states, "Ct 2 PC 236/237 of the 12/31/02 petition found not true," the order is ambiguous because it also states that allegations of Counts 1 and 2 are sustained. Therefore, we direct the trial court to amend the minute order to indicate unambiguously that only count 1 was sustained and that count 2 was not found to be true.
We also agree that the juvenile court did not impose gang conditions. Accordingly, we direct the trial court to amend the minute order to strike the gang conditions that were erroneously checked, as quoted in footnote 2, ante.
DISPOSITION
The minute order shall be amended as specified herein. In all other respects, the judgment is affirmed.
We concur: Kay, P.J., and Sepulveda, J.