Opinion
E074359
07-15-2020
In re O.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.R., Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J282104) OPINION APPEAL from the Superior Court of San Bernardino County. Winston S. Keh, Judge. Affirmed. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Pursuant to a plea agreement, defendant and appellant O.R. (minor) admitted to committing assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)). In return, the remaining count and enhancement allegations were dismissed. The juvenile court declared minor a ward of the court and placed him on formal probation in the custody of his mother on various terms and conditions of probation. Following a hearing as to contested gang-related probationary terms and conditions, the court imposed the four contested gang-related terms and conditions. Minor appeals from the juvenile court's imposition of the four gang-related terms and conditions of probation. Based on our independent review of the record, we find no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation officer's reports.
On January 28, 2019, the victim, B.S., was walking with his girlfriend in Pomona. B.S.'s girlfriend was picked up by a family member and B.S. continued walking. A red sport's utility vehicle (SUV) pulled up beside B.S., and minor, who was then 17 years old, exited the passenger side of the vehicle. The driver of the SUV was an older male who remained in the vehicle.
Minor approached B.S. from behind and asked B.S. where he was from. B.S. responded that "he does not bang." Minor insisted B.S. belonged to a gang and B.S. continued to deny any gang membership. Minor then removed a revolver from his waistband and told B.S. to give him his bicycle. After B.S. refused to give minor his bicycle, minor approached B.S. and struck him on the side of his head with the revolver. Minor then pointed the revolver at B.S. and ordered him to give him the bicycle. Out of fear for his life, B.S. gave minor his bicycle. Minor rode the bicycle away as the SUV pulled up alongside him. Minor then quickly threw the bicycle into the back of the SUV and got into the SUV. The SUV thereafter drove away.
On June 1, 2019, following an investigation, in which several witnesses observed the incident, minor was arrested. When the officers arrived at minor's residence in San Bernardino County, they observed minor as a passenger in his brother's maroon Suburban. In the police report, it was noted that minor was a documented "'Raza Unidad - RA'" gang member. Minor's mother stated that minor did not belong or associate with a gang or tagging crew.
Minor's criminal history indicates that minor had been arrested in October 2016 for murder when he was 15 years old, and in May 2014 for burglary when he was 12 years old. The district attorney, however, declined to file charges in both cases. The murder charge was not filed due to insufficient evidence.
On June 4, 2019, the Los Angeles County District Attorney's Office filed a Welfare and Institutions Code section 602 petition against minor. The petition alleged that minor committed second degree robbery (Pen. Code, § 211; count 1) with the personal use of a firearm (Pen. Code, § 12022.5, subd. (a)) and for the benefit of, at the direction of, and in association with a criminal street gang with the intent to "promote, further and assist in criminal conduct by gang members" (Pen. Code, § 186.22, subd. (b)(1)(C)).
On August 16, 2019, the Los Angeles County Juvenile Court granted the People's motion to orally amend the petition to add count 2, assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). Thereafter, pursuant to a plea agreement, minor admitted count 2. In return, count 1 and the attendant enhancement allegations were dismissed. The juvenile court found true minor's admission and declared the offense to be a felony. Since minor resided in San Bernardino County, the juvenile court thereafter transferred the matter to San Bernardino County.
On August 27, 2019, the San Bernardino County Juvenile Court accepted the transfer and continued the matter for disposition. Prior to the acceptance of the transfer, the San Bernardino County Probation Department interviewed minor and his mother. Both minor and his mother confirmed minor resided in San Bernardino County. In addition, minor denied being a member of any gangs.
On August 30, 2019, the San Bernardino County Juvenile Court declared minor a ward of the court and placed minor on probation on various terms and conditions of probation in the custody of his mother. The court also ordered minor to pay a $100 restitution fine and victim restitution in the amount of $250. Because minor consistently asserted that he was not a member of any criminal street gang, the court reserved the issue of imposing four specific gang-related probationary terms and continued the matter for an "attorneys-only" hearing to determine whether to add the four gang-related conditions to the grant of probation.
On December 10, 2019, the juvenile court heard argument from the parties regarding whether the gang-related terms should be imposed as part of minor's grant of probation. The court also reviewed exhibits submitted by the parties that included incident reports from the Pomona Police Department.
Minor's counsel argued that the gang conditions should not be imposed because minor and his mother insisted minor was not a gang member. Counsel noted that minor's older brother was a documented member of the Raza Unidad gang in Los Angeles and because of that the police had harassed the family. Counsel explained that minor's mother had relocated their residence to San Bernardino County to avoid minor falling into the gang culture. Counsel further pointed out that minor did not wear clothing associated with gang members and did not have any gang tattoos. Counsel also submitted the declaration of the attorney who had represented minor in Los Angeles County. Minor's counsel from Los Angeles County asserted that the prosecution was unable to produce any discovery relating to the gang allegation alleged in the petition and that this was the reason why the Penal Code section 186.22 allegation had been dismissed. Minor's counsel further argued that the additional gang conditions were unnecessary because the standard uncontested gang condition that had already been imposed was sufficient to steer minor away from gang activity as it prohibited knowingly associating with gang members.
The standard gang condition, probation condition No. 15, provides: "Not knowingly associate with any co-participant or person he/she personally knows to be a probationer, parolee or gang member unless approved by probation officer." --------
The prosecutor referred the court to the decision in In re Laylah K. (1991) 229 Cal.App.3d 1496, for the proposition that a minor need not be affiliated with a gang to have gang conditions ordered as part of the terms of a grant of probation. The prosecutor argued, "[A]ll that needs to be [demonstrated] is that a minor be in danger . . . of falling into the influence of a gang."
Following argument and review of the documents submitted by the parties and records from the Los Angeles Superior Court, the juvenile court imposed the four specific gang-related conditions. The court stated that it had "gleaned from [the probation] report several instances where gang activities associated with this minor have been identified. It is reported by the L.A. Probation Department that the minor is a documented gang member. And that gang is named Raza Unidad." The court further explained: "More particularly, and what concerns this Court, is the minor's own words. On page 4 of Officer Diaz's report, this minor exited the passenger's side of the vehicle he was in, approached the victim, asked the victim where he was from. And when the victim responded, he does not bang, he then showed a handgun. [¶] The minor at that point, aside from showing a handgun to the victim, also said he knew that this victim came from somewhere. In fact, he was insisting that the victim belonged to a gang, even though the victim was saying he was not a member of a gang. [¶] So, I don't agree that this was just a run of the mill case where a kid is taking another kid's bicycle or property. Why would this minor, [O.R.], use words that are known to be gang language with the victim? [¶] If he is not a full-fledged member, giving him the benefit of the doubt, he is associating with gangs. And his actions indicate he likes or he favors the lifestyle of a gang banger, which is detrimental to his rehabilitation. He is now 18."
The court also stated: "Based on his words alone, based on the L.A. Police Department reporting that he is a documented gang member, [it] seems to me that in order to help this young man, based on the evidence that this Court has, it would be a dereliction of duty on my part not to impose the gang terms. It relates to future criminality. The fact that he had a gun and using gang language in obtaining another person's property to me is gang activity. I have the minor's words. I believe that is enough for the Court to enable the Court to help rehabilitate this young man. [¶] And so based on that factual basis the Court, over the defense's objection, will impose gang terms. Specifically, terms 22 through 25. But I would like to amend term 25 by using the language found in In re E.O. [(2010) 188 Cal.App.4th 1149]. . . ."
The four contested gang-related probation conditions state as follows: "(22) Not associate with persons known to you to be criminal street gang members or visit, or remain, in any specific location, which you know to be, or which the Probation Officer informs you, is an area of criminal street gang related activity. For purposes of this paragraph, the word 'gang' means a 'criminal street gang' as defined by Penal Code section 186.22, subdivision (f). [¶] (23) Not wear, display or have in your possession any item you know to be associated with criminal street gang dress, or any items prohibited by the Probation Officer including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia associated with membership or affiliation in any criminal street gang. For purposes of this paragraph, the word 'gang' means a 'criminal street gang' as defined in Penal Code section 186.22, subdivision (f). [¶] (24) Not display any hand signs that you know to be associated with a criminal street gang. For purposes of this paragraph, the word 'gang' means a 'criminal street gang' as defined in Penal Code section 186.22, subdivision (f)." And probation condition No. 25 as amended by the juvenile court provides: "You must not attend any gang-related case unless at least one of these things is true: (1) You are a party to the case. You or a member of your immediate family is a victim of the activity charged in the case. (3) You are there to obey a subpoena, summons, court order, or other official order to attend. (4) A party's attorney has asked you to testify or to speak to the court. In all other cases, you must stay at least 50 feet away from the entrance to any courtroom where you know there is a gang-related case going on."
On December 11, 2019, minor timely filed a notice of appeal.
III
DISCUSSION
After minor appealed, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court conduct an independent review of the record.
We offered minor an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, here minor, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to minor.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. MENETREZ
J.