In re Marvin C.

Filed 6/26/06 In re Marvin C. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Marvin C. appeals the juvenile court's order sustaining allegations of a Welfare and Institutions Code section 602 petition that he unlawfully drove or took a vehicle (Veh. Code, § 10851, subd. (a) (count 1)) and received stolen property (Pen. Code, § 496, subd. (a) (count 2)). We conclude: substantial evidence establishes that Marvin unlawfully took a vehicle; the court erred by determining that Marvin received stolen property (count 2); and that the probation conditions restricting Marvin's access to school grounds and prohibiting him from participating in gang activities are not overbroad or vague. We reverse the order on count 2 and affirm in all other respects.

FACTS

Roy Cunningham testified someone took his Honda Accord automobile, which was parked near his home. Police Officer Marco Soto stopped the vehicle and saw Marvin sitting in the front passenger seat. Soto testified the car "was running with a screwdriver stuck in the ignition." Marvin told Soto he knew the car was stolen because of the screwdriver in the ignition.

Marvin testified that Jimmy F. drove the car and picked him up by the school. When he entered the car, he did not know it was stolen. He told Jimmy F. he needed a ride home. Marvin denied he told Soto there was a screwdriver in the ignition. He testified that he saw a key in the ignition the "whole time" he was in the car.

The court found Officer Soto was credible, that counts 1 and 2 of the petition were true, and declared Marvin a ward of the court. The court allowed Marvin to remain home under his mother's supervision and imposed probation conditions, which restricted his access to school grounds and prevented him from associating with gang members and participating in gang activities.

DISCUSSION

I. Substantial Evidence

Marvin contends there was insufficient evidence to support the finding that he aided and abetted the commission of the offense of unlawfully taking a vehicle. We disagree.

We view the evidence in the light most favorable to the judgment and draw all reasonable inferences to support it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Marvin was not the driver, but a passenger may be convicted of this offense. (People v. Clark (1967) 251 Cal.App.2d 868, 874.) Vehicle Code section 10851, subdivision (a), applies to the driver of the stolen vehicle as well as "'. . . an accessory to or an accomplice in the driving or unauthorized taking . . . .'" (People v. Garza (2005) 35 Cal.4th 866, 875.) One who "by act or advice aids, promotes, encourages or instigates" the commission of a crime is guilty of aiding and abetting the offense. (People v. Beeman (1984) 35 Cal.3d 547, 561.)

But a passenger's "mere presence in the automobile" is not sufficient for a conviction. (People v. Clark, supra, 251 Cal.App.2d at p. 874.) "[D]efendant must have known that the vehicle had been unlawfully acquired and . . . had that knowledge at a time when he could . . . have, in some way, aided or assisted in the driving. Knowledge of the unlawful taking, acquired after the ride started and when defendant could neither stop the trip nor leave the vehicle is not enough." (Ibid.)

Marvin contends there was no evidence that he knew the car was stolen when he entered the vehicle. We disagree. He testified he saw a key in the ignition during "the whole time" that he was in the car. But he told Officer Soto that there was a screwdriver in the ignition and he knew the car was stolen. The court found Soto to be credible. From his testimony, the court could find the car was running because of the screwdriver in the ignition and this would be obvious to anyone in the front seat. It could reasonably infer from Marvin's testimony that he saw the ignition area during the entire time he was in the car. It could find that when he entered it, he saw the screwdriver and knew the car was stolen.

Marvin claims he did not encourage Jimmy F. to drive the vehicle. But he asked him to drive him home. The court could find he made that request after he knew the car was stolen. It could also infer that the trip was either for Marvin's benefit or that he exercised some control or choice over the destination. Marvin admitted that the initial reason for the trip was so that he and Jimmy F. could "pick up some girls." The evidence was sufficient.

II. Sustaining the Petition on Both Counts

Marvin and the Attorney General claim that the court erred by sustaining the petition on both count 1, taking a vehicle (Veh. Code, § 10851, subd. (a)), and count 2, receiving it as stolen property. They note that because the court sustained the petition on the first count, it could not also sustain it on the second. We agree.

Here the petition alleged two counts, but both were based on the same incident, the same conduct and involved the same vehicle. "A person who violates section 10851 (a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. [Citations.]" (People v. Garza, supra, 35 Cal.4th at p. 876.) The order sustaining the petition on count 2, receiving stolen property, is reversed.

Because of our ruling on this point, we do not reach Marvin's claim that the court erred by allowing the petition to be amended during trial to add the receiving stolen property allegation. (See, e.g., In re Johnny R. (1995) 33 Cal.App.4th 1579, 1584.)

III. Overbroad Probation Conditions

Marvin contends that the probation conditions which restrict him from participating in gang activity and "being within one block of any school" are overbroad and vague. He claims they "impinge[] on [his] constitutional right of freedom of association and travel . . . ." We disagree.

Courts have "broad discretion in establishing conditions of probation in juvenile cases." (In re Antonio R. (2000) 78 Cal.App.4th 937, 940.) "[J]uvenile conditions may be broader than those pertaining to adult offenders. This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed." (Id. at p. 941.) Courts may restrict the places where minors may go and the people they may contact consistent with the rehabilitative goals of juvenile law. (Id. at p. 942; In re Frank V. (1991) 233 Cal.App.3d 1232, 1243.)

Marvin claims that probation condition 15 (A) which states, "You're not to participate in any type of gang activity" is ambiguous and does not define the term "gang." He argues the court should have used the term "criminal street gang" and he has inadequate notice about what conduct is prohibited.

But he has not cited the complete order. He omits condition 15, which states,"[You are] not to associate with Jimmy [F.] or anyone else who you [k]now to be disapproved of by your parents or the probation officer, and you are also ordered not to associate with anyone you know to be a member of the Santana Locos." This order specifies the gang and the type of individuals he may not contact and provides him reasonable notice. (In re Frank V., supra, 233 Cal.App.3d at p. 1243.) It properly allows his parents and the probation department to designate people he may not contact. (Ibid.; In re Antonio R., supra, 78 Cal.App.4th at p. 942.) It does not punish him for accidentally coming into contact with gang members. It applies only to associating with people that he knows he may not contact. Because Marvin may not even associate with the Santana Locos gang, he knows he may not participate in its activities. Moreover, the order reasonably anticipates that his parents and the probation officer will answer questions he has about this restriction. (Ibid.)

Marvin contends probation condition 12 is vague and overbroad. It states, "You're not to be within one block of any school ground unless you're enrolled, attending classes, on approved school business or with a school official, parent or guardian." He claims the term "any school" is so vague, it could apply to unknowingly passing by any "educational" institution. But "the element of knowledge is fairly implied" in the order (People ex. rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117), and we presume the trial court will not unreasonably interpret it or punish innocent behavior (People v. Welch (1993) 5 Cal.4th 228, 237). These orders need not be written with such "precision" that they will cover every hypothetical possibility. (In re Frank V., supra, 233 Cal.App.3d at p. 1243.)

Marvin claims he does not know what conduct is prohibited. But the order unambiguously informs him that he may not make unauthorized visits to schools where he is not enrolled. It reasonably restricts his access to places he has no right to enter. (Pen. Code, § 627.2 [outsiders and unauthorized persons prohibited from entering school grounds].) It is not an absolute ban on travel to other schools. It merely requires parental supervision or adult authorization to be at areas where Marvin is at risk. The restriction is reasonable as it furthers Marvin's rehabilitation (In re Frank V., supra, 233 Cal.App.3d at p. 1243), deters criminal activity (In re Joseph F. (2000) 85 Cal.App.4th 975, 987) and places him under valid "parental authority" (In re Antonio R., supra, 78 Cal.App.4th at p. 942). There was no error.

The order sustaining the petition on count 2, receiving stolen property, is reversed. In all other respects the order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Charles Q. Clay, Judge

Superior Court County of Los Angeles

______________________________

Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.

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