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In re L.C.

California Court of Appeals, Second District, Eighth Division
Mar 5, 2008
No. B196751 (Cal. Ct. App. Mar. 5, 2008)

Opinion


In re L.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.C., Defendant and Appellant. B196751 California Court of Appeal, Second District, Eighth Division March 5, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court No. PJ39381 of Los Angeles County.

Robert Totten, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Tonja R. Torres, under appointment 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, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

COOPER P.J.

INTRODUCTION

The juvenile court sustained a petition filed pursuant to Welfare and Institutions Code section 602, declaring appellant, L.C. to be a ward of the court and ordering her home on probation. Both appellant and respondent agree that certain conditions of probation require modification and that the juvenile court should not have set a maximum term of confinement. We concur.

STATEMENT OF THE CASE

On October 12, 2006, a juvenile wardship petition was filed pursuant to Welfare and Institutions code section 602 alleging that appellant committed the crime of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). Appellant denied the allegation.

All further undesignated statutory references are to the Welfare and Institutions Code.

An adjudication hearing was held on January 29, 2007 and the juvenile court found the allegation of the petition to be true and, declared the offense to be a felony and declared appellant to remain a ward of the court pursuant to section 602. The court ordered a maximum confinement time of five years and imposed terms and conditions of probation, including appellant was placed home on probation. Appellant received no predisposition credits.

On February 7, 2007, appellant filed a timely notice of appeal from the adjudication and disposition. (§ 800.)

STATEMENT OF FACTS

On January 7, 2006, around 3:00 a.m., Los Angeles Police Officers Ben Herrera and Chris Cleever were on patrol, monitoring narcotics activity in the Columbus Avenue area. They were watching a multi-level apartment building with underground parking. On that date, Herrera, a qualified expert in the area of narcotics sales, saw five people involved in he felt to be a series of four narcotics transactions.

According to Herrera, two stairways led up to the residential area of the apartment complex. Herrera observed two people at the top of the stairs, looking around, and two people at street level whistling to cars passing by. Appellant was one of the people at the top of the stairs. Herrera characterized the people at street level as “hooks,” or people who solicit potential buyers of narcotics During the time he was watching, Herrera observed three transactions which started with the street-level person communicating with a person in a vehicle or on the street. The street level person whistled up to appellant, who was stationed on the stairway landing. Appellant acknowledged the whistle and stepped back toward the security gate door of the apartment building. When she stepped back, she spoke with and motioned to Hector S. for a few seconds, and then Hector exited the security gate.

Hector then walked down from the landing and approached a male inside a car. Hector appeared to retrieve a small object from his hand, and give it to the person in the car. Hector took what appeared to be currency in return and then ran back up the stairs and inside the apartment’s security gate.

Herrera and his partner then went inside the security gate area where Hector had been stationed before each of the transactions and detained appellant, Hector and Juan Carlos Andrate. About five to six feet away from the detention area was a small set of mailboxes with an awning above them to protect residents from the rain when getting their mail. Officer Cheever recovered three bindles of cocaine base from the lip of the awning. Item 1 weighed .04 grams, item 2 weighed .065 grams and item 3 weighed .43 grams.

Thirty-two dollars in $1 and $5 dollar bills were recovered from Hector S. Herrera testified that small denominations are used in this part of town for narcotics transactions. No narcotics were found on Hector’s person.

Officer Herrera opined the bindles that appeared to be cocaine base were possessed for the purpose of sale. He based the opinion on the lack of narcotics paraphernalia, the fact that neither appellant nor Hector appeared to be under the influence, and the interactions that Herrera observed. It was stipulated that a criminalist examined the three bindles and determined that all three items contained cocaine base. Herrera saw money change hands between Hector and Andrate, although no money was found on Andrate’s possession upon his arrest. Herrera did not observe Andrate the entire time the transactions were taking place.

Hector testified that he was present at the apartment complex to drop off his girlfriend, Suri, after a party. She did not have a key to the complex where she lived and had to wait five to ten minutes on the landing for her mother to buzz her in. Hector testified that he did not have any narcotics in his possession, he did not go up and down the stairs four times, and he did not place any drugs in the awning. Someone, either Suri’s mother or aunt – buzzed the group in through the security gate. He denied that appellant opened the gate for him. According to Hector, he did not see anything happening in the area during the ten or fifteen minutes he spent waiting on the staircase landing or behind the security gate. He did not see pedestrians or drug transactions. According to Hector, Suri stayed at different places when she was “partying” because her mother was very strict.

Hector denied he received the $32 found on his possession from selling drugs. He stated that at the beginning of the evening, his mother gave him $40 as spending money for the night. He spent $7 to $8 on drinks and had $32 left over. He had no drugs in his possession when he was arrested.

Appellant testified she was at 8532 Columbus that morning because her boyfriend, Andrate, was supposed to take her home. She was not there for the purpose of selling narcotics and did not run up and down the stairs or act as a lookout. Andrade gave a ride to Hector, his girlfriend Suri and appellant the night of the incident. Appellant testified she knew nothing about drugs being sold from the apartment locations. She did not assist in sales by whistling or by being a lookout. Appellant further denied that she saw Hector sell drugs, and stated she did not see him take drugs from the awning.

CONTENTIONS ON APPEAL

Appellant contends and respondent agrees that the probation condition 15 (“Do not associate with anyone disapproved of by [your] parents, probation officer” and condition 21 (“stay away from places where [narcotics] users congregate”) are unconstitutionally vague and overbroad and must be modified to add a requirement of knowledge. (In re Sheena K. (2007) 40 Cal.4th 875, 890, In re Justin S. (2001) 93 Cal.App.4th 811, 816.)

Appellant contends and respondent agrees that the juvenile court erred by setting a maximum term of confinement. (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574.)

We agree.

DISPOSITION

The case is remanded to the trial court with directions that: probation condition 15 be modified to add that appellant is not to associate with anyone “known to her” to be disapproved of by her parents or probation officer; probation condition 21 be modified to add that appellant is to stay away from places where “she knows” narcotics users congregate; and to strike the order setting a five-year maximum period of confinement.

In all other respects, the judgment is affirmed.

We concur: RUBIN, J., FLIER, J.


Summaries of

In re L.C.

California Court of Appeals, Second District, Eighth Division
Mar 5, 2008
No. B196751 (Cal. Ct. App. Mar. 5, 2008)
Case details for

In re L.C.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. L.C., Defendant and Appellant.

Court:California Court of Appeals, Second District, Eighth Division

Date published: Mar 5, 2008

Citations

No. B196751 (Cal. Ct. App. Mar. 5, 2008)