Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County of Los Angeles Super. Ct. No. JJ13851, Charles R. Scarlett, Judge. Affirmed as modified
Phillip I. Bronson, 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, Assistant Attorney General, Linda C. Johnson and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2006, Ernesto Castro was at a bus stop on the corner of Manchester and Avalon in Los Angeles. Appellant and Ron M. were also present at the bus stop. Ron came up from behind Castro and pressed a knife, or a knife like object, against his back and instructed him to hand over his money to appellant. Appellant extended his arm and received $8 dollars from Castro. During the incident, appellant did not speak to either Ron or Castro. After receiving the money, appellant and Ron fled the scene. The police later apprehended appellant with a $5 dollar bill and three singles in his pocket. During a police show up, the victim identified appellant as the person to whom he was forced to give his money. Appellant, who was a minor, was placed under arrest and detained in juvenile hall.
Following the arrest, a petition was filed under Welfare and Institutions section 602 alleging appellant committed second degree robbery in violation of Penal Code section 211. The juvenile court found appellant committed second degree robbery as an aider and abettor and found the offense was a felony. At the disposition hearing, the court declared appellant a ward of the court under section 602, set a maximum confinement term of five years, and ordered appellant placed home on probation subject to various conditions.
Appellant appeals from the judgment and raises five issues on appeal.
· Court lacked sufficient evidence to find he committed second degree robbery.
· Probation conditions regarding his association with people lacked a knowledge requirement.
· Probation conditions regarding satisfactory grades are impossible for him to achieve.
· Maximum term of confinement lacks legal effect and should be stricken.
· Stayed condition of 90 days in juvenile hall is punitive rather than rehabilitative.
DISCUSSION
1. Substantial evidence supports conviction of second degree robbery.
Appellant contends that the evidence was insufficient to sustain the juvenile court’s finding he committed second degree robbery. He argues no evidence indicates he shared in the intent to rob Castro.
a. Standard of Review
The record must be judged in the light most favorable to the judgment in order to determine whether substantial supports appellant’s conviction beyond a reasonable doubt. (People v. Marshall (1997) 15 Cal.4th 1, 34.) Substantial evidence exists when there is evidence of substantial quality, but not necessarily of substantial quantity. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) Inferences that are logical and reasonable can be enough to satisfy the standard. (Ibid.)
b. Substantial Evidence Supports Trial Court Determination.
Robbery is defined as the felonious taking of personal property, possessed by someone else, by force of fear. (Pen. Code, § 211; People v. Marshall, supra, 15 Cal.4th at p. 34.) Robbery does not end until the property is removed to a place of temporary safety. (People v. Harris (1994) 9 Cal.4th 407, 421.) Appellant can be tried as a principal in the crime if he was found to be an aider and abettor of Ron in the commission of the robbery. (Pen. Code, § 31; People v. Prettyman (1996) 14 Cal.4th 248, 259.) Appellant may be an aider and abettor if he had actual knowledge regarding Ron’s criminal purpose and had an intent or purpose to commit, encourage or facilitate the robbery. (Ibid.) Elements considered for determining whether appellant aided and abetted the crime include his presence at the scene of the crime, relationship with Ron, conduct before and after the offense, and flight from the scene. (People v. Mitchell (1986) 183 Cal.App.3d 325, 330.) In In re Juan G. (2003) 112 Cal.App.4th 1, 5, a case similar to this, a conviction was upheld on an aiding and abetting theory for a minor who was present during a robbery. In that case, however, the minor did not receive any stolen property.
Viewed in the light most favorable to the judgment, the evidence supports the determination that appellant aided and abetted Ron in the commission of the robbery. Circumstantial evidence shows appellant knew of Ron’s intent to commit the robbery. Appellant and Ron stood in close proximity to another during the robbery, they both approached Castro, Ron told Castro to hand over the money to appellant, and he extended his arm to receive it. After the robbery, both fled the scene. These circumstances, taken together, show that Ron and appellant were working together to rob Castro. Even if appellant did not share in the intent before the robbery, evidence supported a finding that he developed the intent during the robbery. Since appellant fled with the money, and the commission of a robbery continues until the perpetrators reach a place of temporary safety, Ron and appellant’s flight was a part of the robbery and shows that appellant aided and abetted Ron by helping to secure the stolen property.
Ron’s testimony was the only evidence presented at trial that appellant did not possess the requisite state of mind for the offense. However, the court concluded Ron was lying. After hearing Ron’s testimony, the court stated that it did not believe a word that he said. It reasoned that Ron was merely trying to do appellant a favor by testifying on his behalf. Since the court sat as the trier of fact, this court must grant great deference to its findings regarding the credibility of Ron. (People v. Barnes (1986) 42 Cal.3d 284, 306.)
2. Probation condition must have knowledge requirement.
Appellant challenges the imposition of two conditions of probation for lack of a knowledge requirement. Due process, under the federal and state constitutions, prohibits vague probation conditions. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) Appellant’s probation conditions are vague if they fail to give him fair warning of what is required of him. (Ibid.) In order for probation conditions restricting associations with others to pass constitutional muster, they must include a knowledge requirement. Otherwise, appellant could be in violation based on a purely accidental encounter, despite his best intentions to comply with the conditions. (Ibid.)
The first challenge can quickly be dealt with since appellant mistakenly contends that the knowledge requirement is missing. The condition that he not knowingly associate with persons disapproved of by his probation officer or his parents was pronounced orally at the disposition hearing and was reflected in the minute order by a handwritten notation adding the word “knowingly” to the condition.
The second condition required that appellant not be in the presence of people unlawfully armed. Appellant contends that this condition requires a knowledge requirement, and its absence renders the condition unconstitutionally vague.
Before a challenge to a probation condition can be assessed, the issue of whether the challenge was forfeited by failing to object to the condition during the disposition hearing must be considered. In general, a challenge to a condition can be forfeited by failing to object to it at trial. (Sheena K., supra, 40 Cal.4th at p. 881.) Pure questions of law involve those that can be resolved “ ‘without reference to the particular sentencing record developed in the trial court’ ” and can be raised for the first time on appeal. (Id. at p. 889.) The knowledge requirement in a probation condition, such as appellant’s, presents pure questions of law since it is examined without reference to the record. (Id. at p. 892.)
Appellant is correct, and respondent does not deny, that no knowledge requirement was included in the condition that appellant not associate with people unlawfully armed. As Sheena K. shows, adding a knowledge requirement to a condition that limits the associations of a probationer is necessary to cure constitutional defects. Without a knowledge requirement, appellant would not have the constitutionally mandated “fair warning” concerning when he is in violation of the condition, since he could be in the presence of someone unlawfully possessing a firearm without knowing so. Accordingly, the condition must be amended to reflect a knowledge requirement.
3. Challenge to satisfactory grades condition was forfeited and is without merit.
Appellant contends the imposition of a satisfactory grades requirement condition was an abuse of discretion because he is not able to achieve satisfactory grades. Because an objection to the condition was not raised during the adjudication, the issue of forfeiture must be addressed.
Appellant contends that an objection to the satisfactory grades requirement condition would have been futile. Appellant relies on decisions holding that objections that would be futile or are wholly unsupported by existing law are not forfeited. (People v. Welch (1993) 5 Cal.4th 228, 237-238.) If a court’s statements indicate that any further objections would be futile, challenges to a probation condition are not forfeited on appeal. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033 (Antonio C.).) In Antonio C., a minor’s counsel objected to a probation condition and received from the court only the response of “Are you through?” Counsel then made no further objections. District Five found the court’s statements sufficient to show that any further objections would have been futile and allowed the challenge on appeal even though it was not raised at trial. Respondents did not dispute on appeal that any further objections to the probation condition would have been futile. (Ibid.) In another case, People v. Arias (1996) 13 Cal.4th 92, 159-160, the Supreme Court rejected a futility argument where some objections were made and rejected by the trial court. The court concluded that the rejection of earlier objections failed to establish that future objections would also be rejected. (Ibid.) The court stressed that an objection by trial counsel would have “cured any harm.” (Id. at p. 177.) In Antonio C. and Arias, counsel objected at least once before deciding that further objections would be futile. Courts are reluctant to allow exceptions to the forfeiture rule so that the record can be developed, afford trial courts the opportunity to cure any errors, and provide appellate courts with more facts to help decide an issue raised on appeal. (Sheena K., supra, 40 Cal.4th at p. 889.)
Appellant contends that any objection to the court’s pronouncement of the satisfactory grades condition would have been futile is based on the court’s prior forceful language. Appellant points to statements such as “I’ll give him H-O-P, but this is a complete waste of time,” and “This kid is out of control . . . making F’s and D’s in everything.” The record does not indicate, as in Antonio C., that the court would have been dismissive of any objections, since its comments were observations unrelated to an objection. During the disposition hearing, counsel did not object to any of the probation conditions. Even before the disposition, counsel suggested that appellant receive an Individualized Education Program (IEP), and again suggested an IEP or some sort of assistance was needed after the satisfactory grades condition was pronounced. Instead of refraining from objecting to the condition under a belief that it was futile, appellant’s counsel advocated appellant’s enrollment in a tutoring program to help him succeed in school. Since the question is essentially a factual question about whether appellant was able to comply with the condition, it should have been raised during the disposition hearing so that an accurate factual determination could have been made as to appellant’s abilities.
Even if the challenge was not forfeited, appellant’s claim that he is unable to achieve satisfactory grades is without merit. Appellant does not point to any evidence that supports his position. Appellant points to a report card showing that he was failing every course, in spite of receiving a “satisfactory” mark for work habits and an “excellent” mark for cooperation in biology. Appellant wishes us to infer that he made an effort to do well in this course, but simply could not do so. Appellant fails to mention that, his biology teacher noted in the “Teacher’s Comments” section, appellant did not complete assignments, was in “danger of failing/not meeting promotion standards,” and was absent 33 times in that course. Appellant also fails to mention that another report card indicated he achieved “D” grades in English and Algebra, in spite of a significant number of absences. The evidence, despite appellant’s claims, shows that his problem in achieving better grades my lie with a lack of effort rather than a lack of ability.
Appellant cannot show that objections to the imposition of a satisfactory grades condition would have been futile. His challenge, therefore, must be considered as forfeited. The court’s statements did not make it a certainty that it would ignore concerns about appellant’s ability to fulfill the satisfactory grades requirement, especially since the court wanted to ensure compliance by enrolling him in an academic assistance program. As to whether he is able to attain satisfactory grades, no evidence demonstrates appellant cannot comply with such a requirement.
4. Maximum term of confinement has no legal effect and should be stricken.
Appellant contends that that the five-year maximum term of confinement imposed by the court must be stricken since he was returned to the custody of his parents, not to a juvenile facility, and was placed on probation.
Generally, when a minor is removed from the physical custody of his parents or guardians under section 602, a maximum term of confinement must be specified that cannot exceed the time of confinement allowable for an adult convicted of the same offense. (Welf. & Inst. Code, § 726, subd. (c).) When a minor is not removed from the custody of parents or guardians, imposition of a maximum term of confinement is not required since it has no legal effect. (In re Ali A. (2006) 139 Cal.App.4th 569, 574 (Ali A.).) Probation, for the purposes of section 726, is a release back into the community. (Id. at p. 573.) In Ali A., the court noted that if the minor violated the terms of probation, a maximum term of confinement may be imposed at a new hearing to determine whether removal is warranted. (Id. at p. 574.)
The juvenile court was not required to set a maximum term of confinement because appellant was released to the custody of his parents following the disposition hearing. Absent proceedings to remove the appellant from his parents’ custody, the term is of no legal effect. The court is directed to modify its minute order by deleting the maximum term of confinement since it serves no purpose.
5. The stayed condition of ninety days is proper.
Appellant challenges the stayed condition of zero to ninety days in juvenile hall by arguing that the condition is punitive rather than rehabilitative. Appellant argues that the condition serves no rehabilitative purpose and, instead, is meant purely as punishment. At the disposition, counsel for appellant did not object to this condition when the court orally pronounced ninety days Ricardo M. time. As discussed previously, the Sheena K. standard for reviewing probation conditions not objected to at the disposition hearing involves a determination whether the question on appeal is a pure question of law or would require the court to make factual determinations. Whether the objective was to punish appellant rather than rehabilitate appellant cannot be answered without looking at the particularized circumstances of the proceedings and, as such, does not raise a pure question of law. Appellant did not raise this objection at disposition and did not give the court an opportunity to explain its reasoning for imposing the condition. Such an objection could have developed the record on this point and provided this court with the information necessary to determine whether the condition was punitive rather than rehabilitative. Appellant’s argument on this point is therefore forfeited.
In re Ricardo M. (1975) 52 Cal.App.3d 744 (Ricardo M.).
Assuming that the objection was not forfeited, it is without merit. When the appellant is placed under probation supervision, the court may impose all reasonable conditions so that “justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd. (b).) While conditions of probation may arguably be viewed as punitive, they serve the overall purpose of rehabilitating a minor. (In re Ricardo M., supra, 52 Cal.App.3d at p. 748.) Ricardo M. recognized that a commitment to a juvenile hall for a period of not less than five days and not more than 20 days served a rehabilitative purpose by demonstrating to the minor the consequences of any future delinquent conduct. (Id. at p. 749.) Here, appellant’s condition of probation of zero to 90 days in juvenile hall was stayed by the court. A stayed order, such as this, provides an incentive to a minor to maintain satisfactory grades and to keep out of trouble. Accordingly the court did not abuse its discretion in imposing and staying this condition.
DISPOSITION
The matter is remanded to the juvenile court with instructions to modify probation condition number 16 to read as follows: “Do not have any dangerous weapon or deadly weapon in your possession, nor knowingly remain in the presence of any unlawfully armed person,” and to delete any reference to a maximum term of confinement. In all other respects, the disposition orders and judgments are affirmed.
We concur: COOPER, P. J., FLIER, J.