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In re K.K.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Jan 25, 2012
B230234 (Cal. Ct. App. Jan. 25, 2012)

Opinion

B230234

01-25-2012

In re K.K, a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.K., Defendant and Appellant.

Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. FJ47309)

APPEAL from an order of the Superior Court of Los Angeles County, Robin Miller Sloan, Judge. Affirmed in part and remanded with directions.

Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

K.K. was declared a ward of the juvenile court and ordered home on probation after the court sustained a petition alleging he had committed assault with a deadly weapon. Although we affirm the order of the juvenile court, we remand for the court to declare whether the offense is a misdemeanor or a felony.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Petition

On May 28, 2010 a Welfare and Institutions Code section 602 petition was filed alleging K.K., then 16 years old, had committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 1), made criminal threats (Pen. Code, § 422) (count 2) and committed misdemeanor vandalism (Pen. Code, § 594, subd. (a)) (count 3) all during an incident on March 8, 2010. At the outset of the jurisdiction hearing on January 4, 2011, the petition was amended to allege K.K. had inflicted great bodily injury during the assault. (Pen. Code, § 12022.7, subd. (a).)

2. The Jurisdiction and Disposition Hearings

a. The People's evidence

K.K. and John De La Paz attended the same school. In February 2008 De La Paz hit K.K. in the face because of conflict between De La Paz's girlfriend and K.K's girlfriend's sister.

According to De La Paz, on the evening of March 8, 2010 he and seven friends drove in two cars to Maplewood Street to engage in a fight after receiving an anonymous text message directing them to that location. De La Paz was in the passenger seat of one of the cars.

After they arrived at the designated location, two cars stopped in front of them and one behind them; approximately 15 boys got out of the cars. K.K. and a boy named Rudy, both holding baseball bats, approached De La Paz's car and hit the windshield several times. K.K. also poked De La Paz with the bat through the open passenger-side window, hitting him in the face below the cheekbone. De La Paz got out of the car and ran. K.K. and others chased him, hitting him with bats. One of the blows from K.K. required 12 staple stitches in the back of De La Paz's head.

b. The defense's evidence

During cross-examination De La Paz admitted he did not tell police on the day of the incident that K.K. was involved, but had said Rudy, whom he described as "the main gangster," broke the windshield and hit him with the baseball bat. On redirect examination De La Paz explained he had failed to name K.K. because De La Paz "was out of [his] mind," but told police the next day "when things had calmed down."

K.K., testifying in his own defense and with the assistance of a Thai language interpreter, denied being present at the scene, contending he was skating with friends. Over defense counsel's objection, K.K. admitted on cross-examination he had told a detective after he was arrested that he did not remember what had happened that night, instead of denying he was present, explaining he did not understand English very well at that time.

Defense counsel objected the prosecutor's question was "improper impeachment" because the detective was not present at trial and K.K.'s statement he did not recall what happened on March 8, 2010 was not inconsistent with his testimony he had been skating with friends that night. After the objection was overruled, the prosecutor asked, "When you spoke to Detective Sherman, you did not say 'I wasn't there.' You said "I don't remember what happened.' Isn't that right?" K.K. responded, "Correct, because at that time I was not able to understand English."

c. The juvenile court's findings and disposition order

At the conclusion of the jurisdiction hearing the juvenile court sustained the petition in part, finding true beyond a reasonable doubt the allegation K.K. had committed assault with a deadly weapon. The court found not true the allegations K.K. had made criminal threats and committed vandalism. The court also found not true the great bodily injury enhancement alleged in connection with the assault charge.

At the disposition hearing the court declared K.K. a ward of the court and ordered him home on probation. The probation conditions set forth in the January 4, 2011 minute order include that K.K. not associate with anyone known by him to be disapproved of by his parents or probation officer (probation condition 15) and "not have any dangerous or deadly weapon in [his] possession, nor remain in the presence of anyone known to [him] to be unlawfully armed" (probation condition 16). Additionally, the minute order indicates the court found the assault offense to be a felony. However, the court did not actually state on the record whether it found the aggravated assault to be a felony or a misdemeanor. The court also failed to state on the record that probation condition 16's association restriction was limited to persons known to K.K. to be unlawfully armed.

CONTENTIONS

K.K. contends the evidence is insufficient to support the finding he committed assault, the juvenile court abused its discretion in allowing impeachment of K.K. with the purportedly inconsistent statement, probation conditions 15 and 16 as imposed are unconstitutionally vague and the court erred in failing to declare on the record whether the aggravated assault is a misdemeanor or a felony.

DISCUSSION

1. The Evidence Is Sufficient To Support the Finding K.K. Committed Assault with a Deadly Weapon

a. Standard of review

The same standard governs review of the sufficiency of evidence in juvenile cases as in adult criminal cases: "[W]e review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" 'the jury's verdict.'" (People v. Zamudio (2008) 43 Cal.4th 327, 357; see In re Matthew A. (2008) 165 Cal.App.4th 537, 540.)

b. De La Paz's testimony constitutes substantial evidence K.K. committed the aggravated assault

K.K. contends the evidence he committed an aggravated assault is insufficient because De La Paz was unable to identify with any certainty who struck him with the bat. K.K. argues De La Paz told five different versions of the story, identifying the person or people who inflicted his injuries as (1) Rudy; (2) K.K.; (3) Rudy and K.K. together; (4) Rudy, K.K. and K.K's friends together; and (5) a group of people with no individuals identified.

It is true De La Paz initially failed to identify K.K. to the police as one of the youths who had assaulted him, and his testimony at trial varied slightly depending on the precise question posed to him. But, after several rounds of direct examination and cross- examination, De La Paz's essential version of events was clearly set forth: K.K. and Rudy both had bats; both hit the car; and both struck De La Paz with their bats. While there were other people hitting the car and hitting De La Paz with bats, K.K. was indisputably one of them.

In an attempt to ensure De La Paz was testifying truthfully, the court, recognizing some people for whom English is not a first language, "in an attempt to be gracious . . . have a tendency to repeat the last thing that the person asked [them]," explained to De La Paz during recross-examination that he should not do so. The court asked him, "If I told you that on that day an elephant hit you on the back of the head, do you understand that we don't want you to agree with that if it's not true? Do you understand that?" De La Paz answered, "Yes."

To the extent De La Paz initially failed to identify K.K. or there were inconsistencies in his testimony, it was within the juvenile court's exclusive province to determine the credibility of his ultimate identification of K.K as one of the assailants. (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259 ["'[i]t is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses'"]; see also People v. Lewis (2001) 26 Cal.4th 334, 361 ["'"[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends"'"].)

The court here plainly did not ignore De La Paz's inconsistent or vague testimony. Although De La Paz unequivocally testified a blow from K.K. had caused the wound to the back of his head requiring 12 stitches, the court apparently weighed that assertion with his testimony he could not see the people standing behind them and found not true the great bodily injury allegation. K.K., however, did not have to inflict that particular injury, or any injury for that matter, to be guilty of the aggravated assault. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028 ["[o]ne may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial"].) Additionally, the court found not true the vandalism charge, finding "reasonable doubt" as to which blow "shattered the window and caused the damage." Having evaluated the evidence and assessed the credibility of the witnesses, De La Paz's testimony K.K. was one of the assailants was sufficient substantial evidence to support his conviction. (See In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497 ["when the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court"; "the evidence of a single witness is sufficient for proof of any fact"].)

2. Impeachment of K.K. with a Statement He Made to Police Was Proper

Citing Evidence Code sections 770 and 1235 defining the circumstances under which the court may admit for the truth of the matter stated evidence of a statement made by a witness that is inconsistent with his or her testimony at trial, K.K. contends it was improper to impeach him with his post-arrest statement that he did not remember what he was doing on March 8, 2010. K.K. argues the statement was not necessarily contradictory or "in effect" inconsistent with his trial testimony that he was not present during the melee in which De La Paz was injured, the police report that included this statement was inadmissible hearsay and there was no proper foundation for the statement because the People did not call the detective to whom the statement had been made as a witness.

Evidence Code section 1235 provides, "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770." Evidence Code section 770, in turn, provides, "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity."

Defense counsel's trial objection ("improper impeachment"), as well as appellate counsel's argument predicated on Evidence Code sections 770 and 1235, misapprehend the nature of this type of impeachment evidence. K.K's earlier statement he did not recall where he was on March 8, 2010 was not introduced to prove the truth of that statement—that K.K.'s memory was deficient—but to undermine the credibility of his trial testimony that he was not present when De La Paz was attacked. (See Evid. Code, § 780, subd. (h) [in evaluating credibility of a witness, the court or jury may consider a statement made by him or her that is inconsistent with any part of his testimony at the hearing].) It is not hearsay; Evidence Code section 1235 is simply inapplicable.

Even if K.K's earlier statement had been introduced for the truth of the matter asserted, it would fall within Evidence Code section 1220, which provides evidence of a statement is not made inadmissible by the hearsay rule when offered against a party to an action.

Moreover, in examining a witness about a prior inconsistent statement, it is not necessary to disclose any information concerning the statement or to show the statement to the witness. (Evid. Code, § 769.) That is, it is not necessary to use extrinsic evidence to prove the statement, and any foundational requirements regarding proof of the statement by extrinsic evidence are also inapplicable. There was no abuse of discretion in allowing this question. (Cf. People v. Young (2005) 34 Cal.4th 1149, 1187 ["prosecutor may not '"ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist"'"].)

Evidence Code section 769 provides, "In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct."

3. The Probation Conditions Are Not Unconstitutionally Vague A probation condition is unconstitutional when its terms are so vague people of "common intelligence" must guess at its meaning. (In re Sheena K. (2007) 40 Cal.4th 875, 890; accord, In re R.P. (2009) 176 Cal.App.4th 562, 566.) To survive a constitutional challenge on vagueness grounds, a probation condition "'"must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated."'" (In re Sheena K., at p. 890.)

Although K.K. failed to object to the conditions in the juvenile court, we may consider this facial, constitutional challenge because it presents purely a question of law. (In re Sheena K., supra, 40 Cal.4th at p. 888 ["it does not appear legally imperative, practical or wise to extend the forfeiture rule of Welch to defendant's [facial] constitutional challenge" that presents purely a question of law].) We review the issue de novo. (In re Sheena K., at p. 889.)
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K.K. challenges the probation conditions he not associate with anyone disapproved of by his parents or remain in the presence of anyone unlawfully armed as unconstitutionally vague because they do not include a "knowledge factor." (See In re Sheena K., supra, 40 Cal.4th at pp. 891-892 [probation condition limiting juvenile's contact with disapproved persons must include requirement juvenile know of disapproval].) However, as reflected in the written minute order from the disposition hearing, both conditions clearly state K.K. must know the persons he is prohibited from associating with are either disapproved of or unlawfully armed.

To be sure, although the court included an express personal knowledge requirement when orally stating the terms of probation with respect to condition 15 during the disposition hearing, it failed to do so with respect to condition 16. While ordinarily an oral pronouncement controls "[w]hen there is a discrepancy between the minute order and the oral pronouncement of judgment" (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073), this is not an inflexible, "mechanical rule." (People v. Smith (1983) 33 Cal.3d 596, 599.) In some circumstances we may deem a minute order to prevail over the reporter's transcript. (See People v. Cleveland (2004) 32 Cal.4th 704, 768.) Here, we conclude the January 4, 2011 minute order reflecting the court's imposition of the terms of probation accurately sets forth both condition 15 and condition 16 as requiring a personal knowledge component. The erroneous omission of the knowledge requirement in the court's oral pronouncement is of no effect. (See In re Sheena K., supra, 40 Cal.4th at pp. 891-892 [citing with approval appellate court decisions upholding otherwise unconstitutional probation conditions where the juvenile court added either orally or in writing the missing express knowledge requirement].)

4. The Court Erred in Failing To Declare on the Record Whether the Aggravated Assault Is a Misdemeanor or a Felony

Assault with a deadly weapon may be either a felony or misdemeanor. (Pen. Code, § 245, subd. (a)(1).) When a juvenile is found to have committed an offense that in the case of an adult could be punished as a felony or misdemeanor, Welfare and Institutions Code section 702 requires the juvenile court to declare the offense to be a misdemeanor or felony. (See also Cal. Rules of Court rules, 5.780(e)(5) [requiring express declaration whether offense is misdemeanor or felony following a contested jurisdiction hearing], 5.795(a) [requiring declaration whether offense is misdemeanor or felony following disposition hearing if not previously determined].) The requirement "serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion" under the statute. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.) An express declaration is necessary. The court's failure to comply with this mandate requires a remand unless the record shows the juvenile court was aware of, and actually exercised, its discretion to determine the offense to be a felony or a misdemeanor. (Id. at p. 1209.)

In this case, the juvenile court failed to declare at the disposition hearing whether the aggravated assault committed by K.K. is a felony or misdemeanor. That the unsigned minute order indicates the court found the offense to be a felony is insufficient. Accordingly, as the Attorney General concedes, the matter must be remanded for the court to expressly declare on the record whether the assault with a deadly weapon is a felony or misdemeanor.

DISPOSITION

The order of disposition is vacated and the cause remanded for the juvenile court to comply with Welfare and Institutions Code section 702 and In re Manzy W., supra, 14 Cal.4th 1199. In all other respects, the order under review is affirmed.

PERLUSS, P. J. We concur:

ZELON, J.

JACKSON, J.


Summaries of

In re K.K.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Jan 25, 2012
B230234 (Cal. Ct. App. Jan. 25, 2012)
Case details for

In re K.K.

Case Details

Full title:In re K.K, a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

Date published: Jan 25, 2012

Citations

B230234 (Cal. Ct. App. Jan. 25, 2012)