In re LUIS P.,

Filed 6/21/07 In re LUIS P., CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Rudolph A. Diaz, Judge. Affirmed and remanded.

Laini Millar Melnick, 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, Senior Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

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Luis P. was found to be a person described in Welfare and Institutions Code section 602^[1]after the juvenile court sustained a petition alleging that Luis committed a battery upon his mother in violation of Penal Code section 242. In this timely appeal from the judgment, Luis challenges the juvenile courts admission of evidence relevant only to disposition at the adjudication stage of proceedings, the sufficiency of the evidence, and the validity of the curfew conditions of probation. We hold the juvenile court committed error by admitting evidence relevant only to disposition at the adjudication, but the error was not prejudicial. We further hold the record contains the required substantial evidence to uphold the judgment. Finally, we remand the cause to the juvenile court to resolve the discrepancy between the reporters transcript and clerks transcript regarding the hours of curfew imposed as a condition of probation.

FACTS

We state the evidence in accordance with the traditional rule requiring a reviewing court to consider the evidence in the light most favorable to the judgment. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) On September 2, 2006, Luis was on the telephone between 1:30 and 2:00 a.m. in the residence he shared with mother. Mother twice told Luis to hang up the phone, but he disobeyed her. Luis struck mother in the face with the back of his hand.^[2]Mother continued to struggle over the phone with Luis. Luis removed his T-shirt and assumed a fighting stance toward mother. Mother was able to wrest the phone from Luis, after which she took the phone to her room.

Luis came to mothers room to regain the phone. The two again struggled over possession of the phone. When mother regained control over the phone, Luis went into another room and picked up a different phone. Mother called the police on her cell phone. When Officer Marsh responded to the call, mother told him she feared Luis, who acted more like an adult than a minor, and she wanted him arrested.

The juvenile court sustained the petition. Custody of Luis was removed from his parents, and he was ordered suitably placed.

DISCUSSION

Admission of Disposition Evidence at the Adjudication

At the adjudication of a delinquency petition, the court shall first consider only the question whether the minor is a person described by section . . . 602. ( 701.) Admission of evidence at the adjudication is governed by the Evidence Code, and proof beyond a reasonable doubt by legally admissible evidence must be introduced to support a finding that a minor is a person described in section 602. ( 701.) Under sections 701, 702, and 706, there is a two-step proceeding in delinquency actions. The first step is the determination of jurisdiction, and the second step is determination of the appropriate disposition and placement. The court may only consider the social study report in the second step, because the report may include legally incompetent material, inadmissible in the first step. (In re Gladys R. [(1970)] 1 Cal.3d 855, 859-860.) (In re James B. (2003) 109 Cal.App.4th 862, 873.) The bifurcated juvenile court procedure prescribed in . . . sections 701, 702, and 706 . . . [citations] is designed to provide a jurisdictional hearing at which competent evidence is adduced, and to make certain the jurisdictional order is made before the social study report containing material irrelevant to the issue of guilt is considered. [Citation.] (In re Joseph G. (1970) 7 Cal.App.3d 695, 700.) (In re James B., supra, 109 Cal.App.4th at p. 874.)

In In re Joseph G., supra, 7 Cal.App.3d 695, the juvenile court considered information contained in a jurisdictional report prepared by the probation officer at the time of the adjudication, which included the probation officers opinion that each appellant was guilty and should be found guilty. (Id. at p. 700.) The probation officers opinion and conclusion is necessarily predicated upon his knowledge of the entire case, including that contained in the social studies report, and it is also subject to the objection that it impinges upon the fact-finding province of the juvenile court judge. It would be anomalous, to say the least, for us to hold that the juvenile court judge cannot consider the social studies report in determining jurisdiction, yet the probation officer who prepares the social studies report may recommend to the judge how the jurisdictional issue should be determined. (Ibid.)

The juvenile court twice violated the rule precluding introduction of evidence pertinent to disposition at Luiss adjudication. First, during the prosecutions direct examination of mother, the prosecutor asked mother if she was afraid of Luis because he comes home with other thugs in the neighborhood, and whether she told the probation officer of her fear. An objection on the ground of relevance was overruled by the juvenile court on the theory the evidence would go to disposition. Ill allow it for that purpose. The juvenile court asked the prosecutor if he was offering it for the case in chief, to which the prosecutor replied, No. After the objection was overruled, mother testified she did not have a fear of aggression by Luis.

Second, the prosecutor later asked mother if she told the probation officer that [her] son smokes marijuana and crystal meth. A defense objection on the ground the question called for improper character evidence was overruled by the juvenile court on the basis that [t]his is going to disposition. Mother answered the question, Yes.

In both instances, the juvenile court committed error by allowing introduction of evidence pertinent to disposition at the adjudication. As in In re Joseph G., supra, 7 Cal.App.3d at page 700, we find the impropriety of less than reversible dimensions, for several reasons, including that the juvenile court did not read the disposition report during the adjudication. As to the first question improperly allowed by the juvenile court, mother answered she was not in fear of Luis, so Luis was not prejudiced. Although mother answered the second inappropriate question in the affirmative, the record reflects the juvenile court did not base its jurisdictional finding on Luiss drug usage. Because the juvenile court effectively separated the facts of the charged incident from Luiss drug usage, we hold the error nonprejudicial. (Id. at pp. 700-701.)

Sufficiency of the Evidence

As a preliminary matter, we note that on this appeal challenging the sufficiency of the evidence to support a juvenile court judgment sustaining the criminal allegationsof a petition made under the provisions of section 602 . . . , we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal. Under this standard, the critical inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) An appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Jones (1990) 51 Cal.3d 294, 314.) (In re Ryan N., supra, 92 Cal.App.4th at p. 1371.)

Although mother denied being struck by Luis, Officer Marsh clearly testified that mother demonstrated how Luis hit her with a backhanded blow to the face. Officer Marsh had no doubt as to what mother said to him. The other circumstances of the case also support a finding of substantial evidence. It was undisputed that mother and Luis struggled over the phone when he refused her order to hang up. Luis removed his shirt and took an aggressive fighting stance toward mother. Mother called the police in response to Luiss conduct and told Officer Marsh she wanted Luis arrested. Viewed in the light most favorable to the judgment, there is substantial evidence that Luis committed a battery on mother.

Luis contends he lacked the intent to commit a battery, because if he struck mother, it was merely during a struggle over the phone. This contention impermissibly asks that we reweigh the evidence, a task we respectfully decline to undertake. The blow described by mother to Officer Marsh was not an accidental or reflexive action, but was instead a deliberate strike with the back of the hand to mothers face. The requisite general intent for battery is supported by substantial evidence.

The Curfew Conditions of Probation

Luiss final contention is that the curfew conditions placed upon him were overbroad and bore no relationship to his offense. Because of an irreconcilable discrepancy between the oral pronouncement of judgment and the clerks minutes, we conclude the preferred course is to remand the action to the juvenile court for the limited purpose of clarifying the curfew conditions of probation. Once clarified, Luis may object if he takes issue with the hours of the curfew.

The issue stems from the following discrepancies in the record. In orally pronouncing judgment, the juvenile court imposed a condition of probation that Luis not be out of his residence between the hours of 6:00 a.m. and 6:00 p.m. unless you have your mothers consent. In contrast to the oral pronouncement of judgment, the clerks minute order reflects that Luis shall not be out of his residence between 6 p.m. and 6 a.m. except with parental consent. In addition, the juvenile court ordered that Luis could not be out of his residence after 9:00 p.m. unless with mother. This condition is accurately reflected in the clerks minute order.

A curfew as a condition of juvenile probation is valid. The juvenile court has wide discretion of fixing conditions of probation. (In re Sheena K. (2007) 40 Cal.4th 875, 889; In re Byron B. (2004) 119 Cal.App.4th 1013, 1015.) The juvenile courts discretion in fixing probationary conditions is broader than in adult probation cases. (In re Sheena K., supra, 40 Cal.4th at p. 889; In reLaylah K. (1991)229 Cal.App.3d 1496, 1500.) The juvenile courts broad discretion extends to the fixing of a curfew. (See In re Jason J. (1991) 233 Cal.App.3d 710, 719, disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237.)

An order declaring a minor a ward of the court after a finding that the minor is a person described in section 602 is a judgment. ( 725, 800.) The rendition of judgment is the oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Zackery (2007) 147 Cal.App.4th 380, 387.) The normal rule is that the reporters transcript controls where there is a conflict with the clerks minutes, although application of the rule must depend upon the circumstances of each particular case. [Citations.] (Peoplev. Smith (1983) 33 Cal.3d 596, 599.)

In this case, we cannot discern whether the juvenile court simply misspoke in restricting Luiss hours out of the house between 6:00 a.m. to 6:00 p.m. curfew, or whether the restriction was intended to ensure that Luis either be at home or at school. The issue is complicated by the second curfew, which prohibits Luis being out of the house after 9:00 p.m. unless accompanied by mother. Given this conflict, we remand the issue to the juvenile court with an order to clarify the inconsistency between the reporters transcript and clerks minutes. Once clarified, Luis will have the opportunity to object should he find fault with the curfew imposed.

DISPOSITION

The cause is remanded to the juvenile court to clarify the discrepancy between the curfew as set forth in the reporters transcript and the clerks minutes. In all other respects, the judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] In her testimony, mother denied being struck and also denied telling Officer Matthew Marsh that Luis had struck her. Officer Marsh testified that he responded to the call, interviewed mother in both Spanish and English, and had her demonstrate how she was struck in the face. By sustaining the petition, the trial court accepted Officer Marshs version of what was said by mother to the officer.