Opinion
E043476
9-5-2008
In re Z.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Z.L., Defendant and Appellant.
Lizabeth Weis, under appointment by the Court of Appeal, for Minor Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
A juvenile court found true the allegation that Appellant Z.L. (minor) received, concealed or withheld stolen property. (Pen. Code, § 496, subd. (a).) The court declared minor a ward of the court and placed him on probation under certain conditions, in the custody of his parents. On appeal, minor contends: 1) there was insufficient evidence to support the true finding on the allegation; 2) the juvenile court abused its discretion in determining the offense to be a felony; and 3) the probation condition prohibiting him from associating with the victim, or being within 100 feet of her property, is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), and it is overbroad and unnecessarily infringes on his constitutional rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 6, 2007, Ashley B. (the victim) lived in a residence on Elm Avenue in Fontana. After returning home from work at approximately 4:00 p.m. that day, she was sitting outside her home socializing with her boyfriend, her sister-in-law, minor, who lived next door, and others. Her boyfriend went inside the house and found a knife on the victims bed. The victim went inside to see the knife and stated that it did not belong to her. Minor and his father went to the victims room and identified the knife as belonging to minor. The victim then discovered her iPod missing from her room. The iPod was white and contained music and videos. The iPod was broken in that it kept "shuffling." Minor left briefly and returned to the victims house with an iPod. It was the same color and model as the victims iPod, and it had the same shuffling defect; however, her music and videos were not on it. Nothing was on it at all. Minor told the victim that when he was walking home, somebody gave the iPod to him. The victim said her iPod was worth $200 to $300. She was suspicious and called the police the next day.
Officer Gerald Davenport responded to the call. As he interviewed the victim at her house, minor came over. Officer Davenport asked him if he had an iPod. When minor said yes, Officer Davenport asked to see it. Minor retrieved the iPod he had and showed it to Davenport. Officer Davenport asked minor where he got the iPod, and minor said he got it from "a kid at school" on March 6, 2007. Minor said he did not know the kids name. Minor also said it was stupid for him to possess the iPod since he knew it was probably stolen. He said he was going to take it to the lost and found at school the next day.
At the jurisdictional hearing, the attendant supervisor at Fontana High School where minor was a student testified that minor was absent from school on March 6, 2007. In fact, minor had been truant from school from February 22, 2007, through March 6, 2007.
Minors father also testified at the jurisdictional hearing and said "the occupant" of the residence on Elm Avenue had given minor the house keys so he could watch the house, since there had been some break-ins. The victim, however, had just moved into the house a few days before the incident. She did not mention to Officer Davenport that she had given the keys to anyone.
The probation officer reported that minor was in the ninth grade and had last attended Fontana High School. Minor had health problems such as epilepsy and severe migraine headaches. He also had a learning disability, had missed a lot of school, and was failing. Minor stated he did not feel that having an education was important. He was placed in independent study but failed to complete any school work. Minor told the probation officer he started using marijuana at age 13 and smoked it one to three times per week. He believed marijuana helped his ailments and thought it should be legalized. His parents agreed.
The court found that minor came within Welfare and Institutions Code section 602 and set a dispositional hearing.
A different judge presided over the dispositional hearing. She considered the probation officers report and recommendation and invited counsel to be heard. Both parties submitted the matter. The court asked minor if he had reviewed the probation terms with his attorney. Minor said he did and that he understood them and agreed to abide by all of them. The court declared the offense to be a felony and declared minor a ward of the court. The court placed minor in the custody of his parents on the probation conditions listed in the probation officers report.
ANALYSIS
I. There Was Sufficient Evidence to Support the Courts True Finding
Minor contends there was insufficient evidence to find that the iPod in his possession was stolen. We disagree.
A. Standard of Review
In considering the sufficiency of the evidence, "[a]n appellate court must review the whole record in the light most favorable to the judgment in order to determine whether it discloses substantial evidence that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. [Citations.]" (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.) "We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence . . . ." (In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In addition, "we must make all reasonable inferences that support the finding of the juvenile court." (Ibid.) "The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. . . . On appeal, we must accept that part of the testimony which supports the judgment. [Citation.]" (In re Daniel G. (2004), 120 Cal.App.4th 824, 830.) Furthermore, "`[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citation.]" (People v. Bean (1988) 46 Cal.3d 919, 933 (Bean).)
B. The Evidence Was Sufficient to Support a True Finding
"[T]o sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property. [Citations.]" (People v. Land (1994) 30 Cal.App.4th 220, 223.) "The knowledge element of receiving stolen property is normally proved not by direct evidence but by an inference from circumstantial evidence. [Citation.]" (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) "In routine circumstances, the knowledge element is inferred from the defendants failure to explain how he came to possess a stolen item or his offer of an unsatisfactory explanation or from suspicious circumstances attendant upon his possession of the item. [Citations.]" (Id. at pp. 1019-1020.) Here, minor does not dispute he was in possession of an iPod that did not belong to him. He argues only that the evidence failed to show he was in possession of a stolen iPod. However, there was ample evidence from which the court could conclude that the iPod was stolen. The evidence showed that the victim found minors knife on her bed on the same day her iPod was stolen from her bedroom. That same afternoon, minor came home with an iPod that was the same color and model as the victims iPod, and it had the same shuffling defect. Although the victims music and videos were not on the iPod minor had, they easily could have been deleted. The iPod which minor possessed had nothing on it. In addition, minor admitted to Officer Davenport that he knew the iPod was probably stolen and that it was stupid for him to possess it.
Furthermore, minor offered an unsatisfactory explanation as to how he came to possess the iPod. He told multiple stories of how he obtained it. First, he told the victim that when he was walking home someone just gave it to him. Then, he told Officer Davenport and the probation officer that on March 6, 2007, a kid he did not know gave the iPod to him at school. The problem was, the school records showed minor was not at school that day. In fact, minor had been absent from school since February 22, 2007.
Minor argues it was not unreasonable to believe someone would give away a malfunctioning iPod. He also contends the iPod he possessed may not have been stolen, since the victim was unable to positively identify it as her own. The iPod minor possessed was the same color and model as the victims, and it had the same defect and nothing (music or videos) on it. This circumstantial evidence certainly supported the courts true finding. Moreover, "`"[i]f the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.]" (Bean, supra, 46 Cal.3d at p. 933.)
Viewing the whole record in the light most favorable to the judgment, as we must, we conclude that there was sufficient evidence to support the courts true finding.
II. The Juvenile Court Properly Determined the Offense to Be a Felony
Minor contends the juvenile court abused its discretion in determining his offense to be a felony. He further claims that his trial counsel provided ineffective assistance of counsel (IAC) by failing to object below. We find no abuse of discretion.
A. Background
At the conclusion of the jurisdiction hearing, minors counsel informed the court that he wanted to make a motion under section 17, subdivision (b), to reduce the offense to a misdemeanor. The court indicated it would hear the motion at the disposition hearing since it had not yet made a determination as to whether the offense was a misdemeanor or a felony.
A different judge presided at the disposition hearing. The court stated it had the probation officers report and recommendation dated June 22, 2007. The probation officers report recommended that the court find the offense to be a felony. The court asked if counsel wanted to be heard, and both parties submitted. Without objection, the court declared the offense to be a felony.
B. The Court Properly Determined That the Offense Was a Felony
The decision whether to reduce a wobbler to a misdemeanor is one of the sentencing choices within the courts broad discretion. (§ 17, subd. (b); Welf. & Inst. Code, § 702.) "`The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).) A decision will not be reversed just because reasonable people might disagree. (Id. at p. 978.)
In deciding whether to exercise its discretion under section 17, some facts for the court to consider include "`the nature and circumstances of the offense, the defendants appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial. [Citations.]" (Alvarez, supra, 14 Cal.4th at p. 978.)
We find no abuse of discretion here. The trial court considered the nature and circumstances of the present offense and reviewed the probation officers report and recommendation before making its decision. The probation officer recommended that the court find the offense to be a felony. The probation officer noted that defendant was "not particularly remorseful, as he [did] not believe he was truly at fault." The probation officer did not believe minor was being truthful about his involvement. As discussed ante, minor told different stories about where and how he obtained the iPod. (See ante, § I.) In addition, minor told the police officer, before his arrest, that he knew the iPod was probably stolen and that he was stupid to possess it. In contrast, he later told the probation officer he did not know the iPod was stolen. It is not plausible that a complete stranger would simply give minor an iPod, on the street or at school. Moreover, it could not have been mere coincidence that the iPod a stranger gave minor happened to be the same model and color, with the same defect, as the one belonging to the victim, or that minors knife happened to be on the victims bed on the same day her iPod was stolen.
Minor argues that the offense could only amount to a misdemeanor and that the judge pro tem at the disposition hearing, who had not presided over the trial, would have so concluded if she had been made aware of certain circumstances. Specifically, minor claims it was especially important to assure that the court was aware that: 1) the iPod was broken; 2) the victim felt probation was appropriate and that she was not seeking restitution; 3) minor had no prior record; and 4) minor had medical issues and a learning disability that accounted for his excessive absences from school. Minor further claims it was important to note that he came forward with the iPod when the victim discovered hers missing. Other than the fact that the iPod had a shuffling defect, all of this information was contained in the probation report, which the court considered. Moreover, these factors had nothing to do with the nature and circumstances of the offense, or minors appreciation of and attitude toward the offense. (Alvarez, supra, 14 Cal.4th at p. 978.)
We conclude defendant has failed to show that the juvenile courts decision was irrational or arbitrary. The court properly relied on the probation officers recommendation in declaring the offense to be a felony, especially in light of minors untruthfulness and complete lack of remorse. Although reasonable minds could possibly differ as to whether the circumstances of the crime and minors background justified the courts determination, we cannot justify substituting our judgment for that of the juvenile court.
In light of our conclusion, it is not necessary for us to address minors IAC claim, except to say that it is not reasonably probable that a more favorable determination would have resulted if his trial counsel had made a motion to reduce the offense to a misdemeanor. (People v. Lewis (1990) 50 Cal.3d 262, 288.)
III. The Juvenile Court Properly Imposed Condition No. 17
Minor contends that probation condition No. 17, which prohibits him from associating or communicating with the victim, or being within 100 feet of her property, is unreasonable under the Lent standard, and is overbroad and unnecessarily infringes on his constitutional rights. We disagree.
A. Minor Has Forfeited His Claims
At the outset, we address the Peoples contention that minor forfeited his claims by failing to object below. As minor concedes, his trial counsel failed to object to the condition as unreasonable under the Lent standard, and thus, he has forfeited this claim. (In re Josue S. (1999) 72 Cal.App.4th 168, 173 (Josue S.).)
Minor also forfeited the claim that that condition No. 17 was constitutionally overbroad. "The California Supreme Court has repeatedly held that constitutional objections must be interposed in order to preserve such contentions on appeal. [Citations.]" (Josue S., supra, 72 Cal.App.4th 168, 170-171.) At the time the conditions of probation were imposed, the juvenile court invited counsel to comment on the probation report. Defense counsel made no objection and submitted the matter. "The conditions of probation imposed were not the basis of an objection in the juvenile court and thus any contentions concerning their constitutional inappropriateness are the subject of waiver or forfeiture." (Id. at p. 171; People v. Welch (1993) 5 Cal.4th 228, 234 (Welch).)
Citing In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), minor claims the California Supreme Court "has recently held that probation conditions that are constitutionally overbroad need not be objected to below in order to preserve their review on appeal." The Supreme Court in Sheena K. held that a minor could raise on appeal a constitutional challenge to a probation condition as long as the claim presented "a pure question of law, easily remediable on appeal by modification of the condition." (Id. at p. 888.) However, the Court cautioned that its conclusion "does not apply in every case in which a probation condition is challenged on a constitutional ground." (Id. at p. 889.) The Court explained, as follows: "[W]e do not conclude that `all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.] [Citation.] We also emphasize that generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (Ibid.)
Minors constitutional claim does not fall under the Sheena K. exception because it does not present a pure question of law. He contends that condition No. 17 is overbroad because, at the time of the offense, he and the victim were neighbors; thus, "[i]t is possible that [he] could be within one hundred feet of [the victims] property whenever he is at his own home." He further argues that if the victim is no longer his neighbor, he could unwittingly violate the condition by being too close to her new residence. In addition, he contends the condition serves no rehabilitative purpose since he never physically harmed or harassed the victim, and he was not found to have entered her residence or to have taken the iPod from her forcefully. All of these specific claims are clearly based on the facts of the case. Thus, minor forfeited his claim that the condition is constitutionally overbroad.
B. Minor Has Not Established That His Counsel Provided IAC
Minor contends that his trial counsel provided IAC by failing to object to condition No. 17. He further argues that the "no-contact" condition is unreasonable because it is not related to the offense of receiving stolen property. Minors contentions fail.
To prove an IAC claim, minor must establish "both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, `"a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." [Citation.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
Minor cannot establish that he was prejudiced by his trial counsels failure to object to condition no. 17 since the court properly imposed that condition. Pursuant to section 1203.1, "the sentencing court has broad discretion to prescribe reasonable probation conditions to foster rehabilitation and to protect the public so justice may be done. [Citations.]" (People v. Miller (1989) 208 Cal.App.3d 1311, 1314.) "A juvenile probationer may be therefore subject to `any and all reasonable conditions the court `may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. In deciding what probation conditions are appropriate, the court shall consider not only the circumstances of the offense but also the minors entire social history." (In re Juan G. (2003) 112 Cal.App.4th 1, 6-7 (Juan G.), fns. omitted.) While a probationer retains rights of privacy and liberty under the federal Constitution (People v. Keller (1978) 76 Cal.App.3d 827, 832, overruled on other grounds in Welch, supra, 5 Cal.4th at p. 237), probation conditions may nevertheless place limits on constitutional rights if necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941.) Furthermore, "[a] condition of probation will not be held invalid unless it `(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . [Citation.]" (Lent, supra, 15 Cal.3d at p. 486, italics added.)
Here, condition no. 17 was reasonably related to the circumstances of the underlying offense. On the same day that the victims iPod was stolen from her bedroom, she found minors knife on her bed. Minor had the keys to her house. That same day, minor was in possession of an iPod that was the same color and model, and had the same shuffling defect, as the victims iPod. Minor was absent from school on the day the iPod was taken from the victim, and in fact, had been not been attending school for some time. Furthermore, although minor was not charged with burglary, he was found to have received and been in possession of the victims iPod. In view of the circumstances of the offense, the court appropriately imposed condition No. 17, as there was a sufficient nexus between the victim, her property, and the offense. (See Juan G., supra, 112 Cal.App.4th at p. 7.)
Minor claims that condition No. 17 is overbroad because it substantially limits his rights and is not closely tailored to the purpose of the condition. He adds that it was overbroad because he and the victim were neighbors, and the distance between their houses is unknown; thus, he could be within 100 feet of the victims property whenever he is at home. If the victim moved, he could unwittingly violate the condition by being too close to her new residence. However, it was not unreasonable to require minor to avoid the victim and her property for the duration of his probationary period. Moreover, the record indicates that the victim no longer lives at 9523 Elm Avenue. Thus, there is no chance of minor violating the condition while he is at home. If minor unexpectedly encounters the victim, we are confident that a court of this state would reasonably limit and interpret the condition. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.)
In sum, the court properly imposed condition No. 17. Therefore, it is not reasonably probable that a more favorable determination would have resulted if minors trial counsel would have objected to condition No. 17.
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J. --------------- Notes: All further statutory references will be to the Penal Code unless otherwise indicated.