Filed 4/4/17 In re G.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re G.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

G.M.,

Defendant and Appellant.


E066533

(Super.Ct.No. J265256)

OPINION


APPEAL from the Superior Court of San Bernardino County. Pamela P. King, Judge. Affirmed with directions.
Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
After a jurisdictional hearing, the juvenile court found defendant and appellant G.M. (minor), a minor, violated Penal Code section 148.5, subdivision (a), a misdemeanor, by knowingly making a false police report. (Welf. & Inst. Code, § 602.) The juvenile court placed minor on summary probation. Minor raises three issues on appeal: (1) there is not substantial evidence supporting the finding that she knowingly made a false police report; (2) the juvenile court erred by denying her motion to dismiss (§ 701.1); and (3) three of her probation conditions need to be modified. We affirm with directions.
FACTUAL AND PROCEDURAL HISTORY
A. THE PEOPLE’S CASE
Minor is female and was born in 2003. The victim is a male substitute teacher. The victim taught one of minor’s classes from December 1 through December 17, 2015. Minor was a poor student with a defiant attitude. Minor was often tardy to class. On December 10 or 11, the victim contacted minor’s parents to inform them she was failing the class. Minor’s attitude in class worsened after the victim contacted minor’s parents.
On December 17, the students in the victim’s class were tasked with giving group PowerPoint presentations. Minor’s group was unprepared. Minor’s friend, who was in minor’s presentation group, ate chips rather than work on the presentation. The victim took the bag of chips. Minor’s friend screamed and refused to sit down. The victim called security. After security left the classroom, the friend was calm. One of the three people in minor’s group asked to go to the office to retrieve an incident form, and the victim permitted the person to leave. When the person returned, the group of three huddled together in a secretive manner, not working on their computer.
At the end of class, the group left the classroom. The group left the incident form in the classroom. On the form, minor alleged the victim touched minor’s breasts, as well as the breasts of two other girls, M. and G. Minor further alleged the victim threatened to choke minor and that he physically pushed minor and M. while they were working. The victim delivered the report to the assistant principal. At the jurisdiction hearing, the victim denied ever placing his hands on minor. The victim testified that he never touched minor’s shoulders, breast, wrist, neck, or waist.
On December 18, 2015, City of Rialto Police Officer Jones (Jones) was at minor’s school. The school principal informed Jones that minor’s parent accused the victim of touching minor’s breasts. Jones spoke with minor. Minor said the victim had been touching minor’s breasts, over her clothing, during class, for approximately one month. Minor said the victim had touched her 15 times. Minor described the victim touching her shoulders and then moving his hand down to her breasts. Minor recalled the victim grabbing her wrists and her neck.
Rialto Police Detective Haynie (Haynie) was assigned to a unit that investigated crimes against children. During Haynie’s first interview of minor, around February 27, minor said the victim touched her shoulder and then touched her breasts for approximately two minutes. Minor also said the victim touched her neck and said he wanted to choke her.
Haynie asked minor to provide details about the incidents. Minor “said she couldn’t remember. She didn’t recall exactly. She was having a hard time remembering.” Haynie asked for details three times, but each time minor “wander[ed] off to another subject.” Haynie asked how many times the victim touched minor. Minor said “once.” Haynie asked a second time how many incidents of touching occurred. Minor replied, “[O]ne or two.” Haynie showed minor the report alleging 15 incidents of touching. Minor said she did not recall, and then changed the subject. Minor blamed her forgetfulness on “family problems.”
Haynie spoke to minor a second time, and Jones was present as well. During that meeting, in March, Haynie considered minor to be a suspect. Haynie told minor that minor’s statements were inconsistent. For example, minor told Jones the victim touched minor 15 times, but minor told Haynie the victim touched minor once or twice. Minor appeared uncomfortable and told Haynie she could not recall what happened. Haynie asked minor to write a statement about the victim touching minor.
In the written statement, minor asserted the victim touched her “more than 15 times”; he touched her breasts; he touched her shoulders; he threatened to choke her while touching her neck; he grabbed minor’s wrists and pushed her into class; and he touched M. and G.
B. MOTION TO DISMISS
Minor moved to dismiss the petition on the basis that the People failed to prove the required elements. (§ 701.1.) Minor asserted the People’s evidence reflected minor was inappropriately touched one to 15 times, and while the victim denied inappropriately touching minor, the People failed to prove the touching did not occur. Minor asserted the People were required to prove the allegations were false and that minor knew the allegations were false, and the People failed to prove those elements.
The People asserted the evidence showed minor had a motive to lie due to her failing grade, her parents being contacted, and being reprimanded in class. The People asserted minor could not provide details of the incidents, and minor’s allegation that the victim touched her breast for two minutes in a classroom “def[ied] logic.” The People contended that if the court found the victim’s denial of the accusations to be credible then there was sufficient proof of the victim’s innocence.
The juvenile court denied minor’s motion.
C. MINOR’S CASE
Minor testified at the jurisdiction hearing. The victim touched minor in November and December 2015. The victim touched minor every week. The victim touched minor’s shoulders, neck, wrists, and breasts. In November, in the classroom, while minor was doing her work, the victim touched minor’s neck, squeezed it, and said he was going to choke her, then the victim walked away. On another occasion, the victim grabbed minor’s wrists and tried to pull her into the classroom. Minor refused, and the victim pushed her into the classroom.
On 15 different occasions, the victim touched minor’s breasts. All 15 incidents occurred in December. All 15 touchings occurred during class. During the first breast touching incident, the victim put his hand on minor’s shoulder while she was working, he then moved his hand to her breast and touched her breast for 35 seconds to two minutes. The second incident was identical but shorter—minor was working, the victim touched minor’s shoulder, he then touched her breast for approximately 10 seconds.
Minor explained that she did not tell the whole story to Haynie because Haynie “was asking too much [sic] questions,” which caused minor to feel frightened to tell the truth. Minor said, “ Because [Haynie] told me if I lied, I would go to juvie, and I was afraid to tell her.”
On cross-examination, the People explained that the victim would have had to touch minor every day if he touched her 15 times, because the victim taught the class from December 1 through 17, and some of those days were weekends when class was not in session. Minor said the victim did not touch her every day and did not touch her multiple times in a single class. Minor testified that the victim touched her more than 15 times from December 1 through December 17, but he did not touch her every day.
The People asked what family problems caused minor to be forgetful. Minor explained that months prior to speaking with Haynie, minor’s mother said minor would have to take a drug test, which caused her to feel afraid. Minor explained that she became frustrated while speaking with Haynie because she had already spoken to the vice principal and Jones about the allegations.
D. RULING
The juvenile court issued a written ruling. The juvenile court wrote, “Certainly some inconsistencies and lapses in memory are expected of a witness of [minor’s] age, but the number and degree of the inconsistencies compel me to find them to be ‘deliberate’ in nature. [Citation.] The Minor simply lacks any credibility; whereas, the court found [the victim’s] testimony to be credible. Therefore, the court finds the Petitioner has met the requisite burden of proof.”
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Minor contends the finding that she knowingly made a false police report (Pen. Code, § 148.5) is not supported by substantial evidence. “‘“On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find [the allegations to be true] beyond a reasonable doubt.”’” (People v. Jones (2013) 57 Cal.4th 899, 960.) “‘If the [true finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’ [Citation.] ‘Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a [finding that a crime was committed].’” (Id. at p. 963.) “‘“We also presume the existence of every fact the lower court could reasonably deduce from the evidence in support of its judgment.”’” (In re Jose O. (2014) 232 Cal.App.4th 128, 133.)
Penal Code section 148.5, subdivision (a) is violated when a person reports to a peace officer “that a felony or misdemeanor has been committed, knowing the report to be false.” (Pen. Code, § 148.5, subd. (a).)
The first element is a peace officer. Jones testified that he is a police officer. Therefore, there is substantial evidence supporting the peace officer element. The second element is a report. Jones testified that minor told him the victim touched her 15 times. Minor told Jones the victim touched her breast. The foregoing evidence describes a report to a police officer because minor spoke to a police officer about an inappropriate touching.
The third element is that the report concern a felony or misdemeanor. An adult willfully touching a child under the age of 14 years old in a lewd or lascivious manner is a felony pursuant to Penal Code section 288, subdivision (a). Minor described the victim touching her 15 times, and alleged the victim touched her shoulder, and then moved his hand to her breast. Minor also said the victim was “around her in like a harassment-type capacity.” It can be inferred that minor believed the touching was willful and sexual in nature because minor did not assert the touching was accidental and she described the victim as harassing her. Therefore, minor reported a felony (Pen. Code, § 288, subd. (a)).
The fourth element is falsity. The victim testified that he never touched minor’s shoulders, wrists, neck, waist, or breast. The victim further testified that he never placed his hands on minor. This testimony supports the finding that minor was dishonest when she reported the victim touched her. The fifth element is knowledge of the falsity. Because substantial evidence reflects the victim did not touch minor, it can be reasonably inferred that minor knew her police report was dishonest. If, as the evidence reflects, minor was not touched by the victim, then minor was aware she was being dishonest when she reported the victim touched her. Accordingly, substantial evidence supports the juvenile court’s true finding.
Minor contends the finding is not supported by substantial evidence because the evidence reflects she is a typical child victim who provided some inconsistent statements concerning sexual contact, i.e., there is no substantial evidence that she knowingly made a false report. At this court, we are not examining the inconsistencies in minor’s stories so as to evaluate her credibility. Credibility is determined by the juvenile court. (People v. Jones, supra, 57 Cal.4th at p. 963.) The evidence that supports the juvenile court’s findings concerning falsity and knowledge is the victim’s testimony that he never touched minor. Because there is substantial evidence, i.e., the victim’s testimony, reflecting minor was not touched by the victim, it can reasonably be inferred that minor knew she was making a false report when she told Jones the victim touched her 15 times.
B. MOTION TO DISMISS
Minor contends the juvenile court erred by denying her motion to dismiss. (§ 701.1.) Section 701.1 permits a judgment of dismissal at the close of the People’s case if the evidence presented by the People is insufficient to support a true finding for the alleged offense. (§ 701.1.) When considering a motion to dismiss, the juvenile court must weigh the evidence, evaluate the credibility of witnesses, and determine if the case against the minor has been proven beyond a reasonable doubt. (In re Andre G. (1989) 210 Cal.App.3d 62, 66.) We apply the substantial evidence standard of review, which is described ante. (Id. at p. 65.) We limit our examination of the record to the evidence presented by the People. (§ 701.1.)
At the close of the People’s case: (1) Jones testified he is a police officer; (2) Jones testified that minor told Jones the victim touched her breast and that the victim “was around [minor] in a like a harassment-type capacity,” which is a report of a felony because it describes a lewd and lascivious act with a minor (Pen. Code, § 288); (3) the victim testified that he never touched minor, from which it can be inferred minor’s report was false; and (4) the victim testified he never touched minor, from which it can be inferred minor was aware she had not been touched and therefore knew she was being dishonest when she reported having been touched by the victim. In sum, at the close of the People’s case, there was substantial evidence by which the juvenile court could properly find minor knowingly made a false police report. Accordingly, we conclude the juvenile court did not err.
Minor contends there is not substantial evidence that she knowingly made a false report. Minor’s argument focuses on how she made consistent statements to the police regarding her allegations against the victim. Minor’s argument is not persuasive. As discussed ante, the victim testified that he never touched minor. There is nothing physically impossible or inherently improbable about the victim not touching minor. Because there is substantial evidence that the victim did not touch minor, it can be concluded that minor knowingly made a false report when she reported the victim touched her.
C. PROBATION CONDITIONS
1. CURFEW
Probation condition No. 7 requires minor “[b]e home every night by curfew, 7:00 p.m. to 6:00 a.m., and not leave home unless accompanied by parent/guardian or with [a] probation officer’s prior permission.” Minor contends the curfew condition is unconstitutionally vague. Minor asserts it is unclear (1) if she can never leave home without a parent/guardian, or (2) if she cannot leave home between 7:00 p.m. and 6:00 a.m. without a parent/guardian. The People concede the condition is vague.
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ . . . The vagueness doctrine ‘“bars enforcement of ‘a [probation condition] which either forbids or requires the doing of an act in terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application.’”’” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “We review vagueness claims de novo.” (In re P.O. (2016) 246 Cal.App.4th 288, 299.)
The structure of the compound sentence, with specific times listed in the first clause of the sentence, but no times listed in the second clause of the sentence is confusing. It is unclear if the specific times are meant to apply to the entire sentence or only the first clause. As a result, there could be differing interpretations of the probation condition and therefore inconsistent enforcement. One person could reasonably read the probation condition as meaning, “Be home every night by curfew, 7:00 p.m. to 6:00 a.m., and not leave home [during those same curfew hours] unless accompanied by parent/guardian or with [a] probation officer’s prior permission.” While another person could reasonably read the probation condition as meaning, “Be home every night by curfew, 7:00 p.m. to 6:00 a.m., and [never] leave home unless accompanied by parent/guardian or with [a] probation officer’s prior permission.”
Given that two reasonable interpretations of the probation condition can be made, the probation condition is vague. Because the probation condition is unclear, and we cannot determine which interpretation the juvenile court intended to impose, we will direct the juvenile court to modify the probation condition.
Minor contends the curfew condition is unconstitutionally overbroad to the extent it requires she only leave the house in the company of a parent/guardian or with the permission of the probation department. This argument is not ripe for review because it is unclear if the juvenile court imposed such a condition. We cannot issue what may be only an advisory opinion. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) Accordingly, we decline to further address this issue.
2. SCHOOL
Probation condition No. 22 requires minor “[a]ttend school daily, exert his/her best efforts and abide by all school rules.” Minor contends the “best efforts” portion of the school condition is unconstitutionally vague. Minor contends it is unclear what exact behavior is required of her.
“Best efforts” means “us[ing] the diligence of a reasonable person under comparable circumstances.” (California Pines Property Owners Assn. v. Pedotti (2012) 206 Cal.App.4th 384, 395.) Thus, in our reading of the school condition, it is not the “best efforts” term that is vague because that term has a legal definition. Rather, we find the lack of goal to be a source of vagueness—“best efforts” toward what exactly? Best efforts toward following the rules, earning passing grades, attendance, all aspects of school success? It is unclear to what end the juvenile court intended minor to exert her best efforts. Accordingly, we will direct the juvenile court to modify or amend the probation condition so as to make it clear toward what educational goal(s) minor is to act with the diligence of a reasonable person under comparable circumstances.
3. LETTER
a) Procedural History
Probation condition No. 23 requires minor to “[w]rite an apology letter to the victim and submit [it] to the Probation Officer.”
At the juvenile court, minor’s hearing counsel objected to the letter condition and asked that it be stricken. Minor’s counsel explained that minor maintained her innocence and saw herself as the victim’s victim. Minor’s counsel said, “[R]equiring [minor] to write an apology letter to the person who she still perceives, even if wrongly, as her abuser, would be, well, your Honor, cruel.” The People asserted “there is a rehabilitative purpose to the minor acknowledging what she did and apologizing to those she harmed.” The People requested the probation condition remain.
The juvenile court said the situation was complicated given that minor maintained her innocence. The juvenile court concluded the probation condition was appropriate. The court said, “[I]f she wishes to maintain her factual innocence, then she at least can address her understanding of the magnitude of the issues at hand . . . . I think that letter does not necessarily have to cause her to falsely represent anything from her perspective, but simply to reflect an understanding of the magnitude of the issues at hand.”
b) Analysis
Minor contends the letter condition is unreasonable. “[A] condition of probation which require or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the [minor’s crime] or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486.) We review the juvenile court’s decision for an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
Writing an apology letter and delivering it to the probation department are not criminal acts. Therefore, the letter condition must be related to minor’s crime or future criminality. The letter is related to minor’s crime because she is apologizing for her crime. Further, in order to write the letter, minor will need to reflect on her criminal conduct and how it has affected others. That reflection, which is part of the letter writing process, could also help to deter future criminality on the part of minor, as it may cause her to realize that her criminal acts cause harm, which may dissuade her from future criminal conduct. In sum, the letter condition is related to minor’s crime and future criminality. Therefore, the juvenile court acted within the bounds of reason by imposing the condition—the juvenile court did not err.
Minor asserts the letter condition is unreasonable because minor maintains her innocence and there has been no finding that the victim is factually innocent. Minor asserts she cannot be required to demonstrate remorse, and forcing her to write an apology letter when she maintains her innocence will not cause her to feel remorse, and therefore will have no impact on her future criminality.
It has been concluded beyond a reasonable doubt minor committed a crime. Any lack of remorse on minor’s part is all the more reason writing an apology letter may be helpful for minor. The requirement that minor write a letter should cause minor to think about her actions, reflect on how she arrived at this point, and consider how her actions have affected others. These activities should impact her future criminality because they should assist her in taking personal responsibility and feeling sympathy for others.
DISPOSITION
The juvenile court is directed to (1) modify or amend probation condition No. 7 to indicate when minor, while away from home, is required to have the company of a parent or guardian or permission from the probation department; and (2) modify or amend probation condition No. 22 to indicate toward what goal or goals minor is to exert her best efforts. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.

We concur:

HOLLENHORST
Acting. P. J.

McKINSTER
J.