In re Steven H.

Filed 8/31/06 In re Steven H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Morton Rochman, Judge. Affirmed as modified.

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, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

SUMMARY

Minor appellant challenges the decision of the juvenile court sustaining a Welfare and Institutions Code section 602 petition against him. He contends the court should have exercised discretion in setting his maximum term of confinement; two of his probation conditions are overbroad and require modification; the court erred by admitting irrelevant evidence; and the evidence is insufficient to support the gang enhancement. We conclude the juvenile court had no discretion in setting appellant’s maximum term of confinement, as he was placed in a county camp, not with the Department of Youth Authority. The challenged conditions of probation are vague and must be modified. The court improperly admitted irrelevant evidence regarding appellant’s oldest brother and an apparently unrelated incident that occurred a few hours before the charged offenses, but the admission was harmless. Substantial evidence supported the court’s findings on the gang enhancement allegations.

FACTUAL AND PROCEDURAL BACKGROUND

As Edgar Aguirre, Jr. walked to his apartment with his girlfriend, he heard someone shout “Barrio Van Nuys.” Aguirre turned and saw appellant, appellant’s identical twin brother Christopher and their younger brother Anthony running toward him. Anthony grabbed Aguirre, and appellant and Christopher punched and kicked Aguirre, who fell to the ground. Someone removed Aguirre’s wallet, mobile phone and car stereo faceplate from the pocket of his sweatshirt. As Aguirre fled, he heard someone again shout “Barrio Van Nuys” and saw Anthony throw the stereo faceplate to the ground. Aguirre belonged to the Vanowen Street Locos gang, a rival of the Barrio Van Nuys gang. At the adjudication hearing, Aguirre and his girlfriend claimed a loss of memory regarding the incident.

The juvenile court sustained a Welfare and Institutions Code section 602 petition alleging second degree robbery and assault by means of force likely to produce great bodily injury, and found gang enhancement allegations as to each offense true.^[1] The court found each offense would be a felony, declared appellant to be a ward of the court, and ordered him placed in camp. The court calculated appellant’s maximum term of confinement as 15 years.

DISCUSSION

1. The trial court had no discretion in calculating the maximum

term of confinement.

Appellant contends the juvenile court should have exercised its discretion under Welfare & Institutions Code section 731, subdivision (b) in setting his maximum term of confinement. He argues that if the maximum term is not altered now, it “will likely affect any future maximum term if, in the future, Steven is sent to CYA . . . .”

Welfare & Institutions Code section 726, subdivision (c) requires the juvenile court to set the maximum term of confinement using the longest of the three terms that could be imposed upon an adult convicted of the same offense. Welfare & Institutions Code section 731, subdivision (b) establishes an exception permitting the juvenile court to exercise discretion: “A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. This section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769.” By its own terms, Welfare & Institutions Code section 731, subdivision (b) applies only to youthful offenders committed to the Department of Youth Authority. It does not apply to appellant, who was placed in a county camp.

To require the juvenile court to exercise discretion under Welfare & Institutions Code section 731, subdivision (b) would violate the terms of both sections 726, subdivision (c) and 731, subdivision (b). Moreover, the basis for appellant’s claimed need for the exercise of discretion is speculative, as he may never be committed to the Department of Youth Authority.

2. Vagueness inherent in two of appellant’s probation conditions

requires modification.

Appellant contends two of the probation conditions imposed by the juvenile court are unconstitutionally vague and overbroad. The conditions at issue are that he not associate with gang members^[2] and not participate in gang activity or wear “gang clothing, tattoos or insignias.” He argues the conditions are invalid because they each omit the element of his knowledge and a definition of “gang.”

Respondent argues appellant forfeited his claim regarding these conditions by failing to object to them in the juvenile court. This issue is presently before the Supreme Court in In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980. Among prior cases, a split of authority exists. (See, e.g., In re Justin S. (2001) 93 Cal.App.4th 811, 814-815 [not forfeited]; People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152 [forfeited].) In People v. Welch (1993) 5 Cal.4th 228, 234-237, the Supreme Court held that failure to object to unreasonable probation conditions at the sentencing hearing forfeits the claims on appeal. However, the court expressly limited its forfeiture rule to challenges based upon “Bushman/Lent“ grounds. (Id. at p. 237.) The grounds consist of claims that probation conditions bear no relationship to the crime of which the offender was convicted, relate to conduct which is not in itself criminal, or require or forbid conduct which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486; In re Bushman (1970) 1 Cal.3d 767, 777.) Appellant does not challenge his probation conditions on any of these grounds.

Appellant’s contentions raise only questions of law. The court in People v. Welch, supra, 5 Cal.4th at p. 235, recognized an exception to the forfeiture rule for challenges to probation conditions that raise pure questions of law. Nonetheless, the court in People v. Gardineer, supra, 79 Cal.App.4th 148, applied the forfeiture rule to a purely legal challenge similar to that appellant raises.^[3] We conclude, however, the correct view is that exemplified by In re Justin S., supra, 93 Cal.App.4th at p. 815: failure to object to a probation condition in the trial court does not preclude a purely legal challenge to that condition on appeal. Accordingly, we address the merits of appellant’s claims.

A juvenile court has significantly greater discretion in imposing conditions of probation than that exercised by an adult court when sentencing an adult to probation. (In re Tyrell J. (1994) 8 Cal.4th 68, 81.) This is because juvenile probation is not an act of leniency, but a disposition made in the minor’s best interest. (Ibid.) Accordingly, “a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.” (Ibid.) A youthful offender’s liberty interest is not co-extensive with that of an adult. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242.) A probation condition prohibiting a ward of the court from associating with certain people or groups, such as those of whom his parents or probation officer disapproves, is not constitutionally overbroad. (Id. at p. 1243.)

The conditions at issue are vague, and this appears to be the defect appellant actually challenges. Their vagueness lies primarily in the possibility appellant could be deemed to be in violation of his probation by associating with someone who, unbeknownst to him, is a gang member. Alternatively, he might be found in violation for unwittingly wearing an article of clothing or accessory of a color favored or adopted by a gang with which he has no familiarity. Less likely, although theoretically possible, is uncertainty over whether a particular group with whose members appellant might associate constitutes a “gang” or whether particular conduct constitutes “gang activity.” (People v. Lopez (1998) 66 Cal.App.4th 615, 631.) Just as due process requires that a criminal statute be sufficiently definite to provide a standard of conduct for those whose activities are proscribed, for police enforcement, and for ascertainment of guilt, probation conditions must be specific enough to allow the probationer to determine with reasonable certainty the conduct that is prohibited. Appellant’s vagueness contention is supported by In re Justin S., supra, 93 Cal.App.4th at p. 816 [probation condition prohibiting the appellant from associating with gang members]; People v. Lopez, supra, 66 Cal.App.4th at pp. 628-629 [same]; and People v. Garcia (1993) 19 Cal.App.4th 97, 102 [probation condition prohibiting association with users and sellers of narcotics, felons and ex-felons]. Accordingly, we will narrow the probation conditions in controversy by adding a knowledge requirement and reference to the portion of Penal Code section 186.22 defining “gang” to each condition. (People v. Lopez, supra, 66 Cal.App.4th at p. 634.)

3. The court erroneously admitted irrelevant evidence, but the error did not prejudice appellant.

Appellant contends the juvenile court admitted irrelevant, prejudicial evidence regarding appellant’s brother and an incident involving the Barrio Van Nuys gang a few hours before the attack on Aguirre.

a. Testimony regarding Patrick Kelly

Los Angeles Police Department Officer Anthony Smith testified he was assigned to monitor the Barrio Van Nuys gang. When asked whether he knew appellant and his brothers/co-minors Christopher and Anthony, Smith responded that he knew “their entire family. Their older brother Patrick Kelly … he’s a very hard core [sic].” Counsel for Christopher unsuccessfully objected that the evidence was irrelevant. Smith continued, “He’s a very hard core and violent Barrio Van Nuys gang member. I’ve arrested him several times for guns and he’s currently in county jail right now for a homicide where he executed a rival gang member.” Smith subsequently testified that appellant and his twin were “from the same clique as their older brother, which is the Cyclones clique, which is the largest and most active clique of Barrio Van Nuys right now.”

Generally, we review any ruling on the admissibility of evidence for abuse of discretion. (See, e.g., People v. Alvarez (1996) 14 Cal.4th 155, 201.) Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of an action. (Evid. Code, § 210.)

Kelly’s membership in the Barrio Van Nuys gang was not relevant to any issue in appellant’s case, except through an impermissible, speculative inference of guilt by association. Nothing suggested Kelly was involved in the charged offenses or that his own acts, gang status, or incarceration were related to the charged offenses.

Respondent argues the testimony regarding Kelly was relevant to prove the existence of a criminal street gang, a pattern of criminal gang activity, and primary activities of the gang for purposes of Penal Code section 186.22. Penal Code section 186.22, subdivision (b), provides a sentence enhancement for anyone convicted of a felony “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Subdivision (f) of section 186.22 defines “criminal street gang” as an “ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in . . . subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”

The testimony about Kelly did not establish that he committed any offense listed in Penal Code section 186.22, subdivision (e). Smith claimed Kelly “executed” a rival gang member, but the county custody to which Smith referred was inconsistent with the conviction of a gang-related homicide. Smith did not refer to a conviction and did not establish any foundation of personal knowledge regarding Kelly’s “execution” of a rival gang member. It is reasonable to conclude Smith based his testimony merely upon a charge pending against Kelly. Accordingly, the testimony was insufficient to establish any of the elements of Penal Code section 186.22, subdivision (f).^[4]

The evidence regarding Kelly was irrelevant and therefore inadmissible. The trial court abused its discretion by overruling the defense objection to it.

b. Testimony regarding prior incident on same day

The crimes against Aguirre occurred at about 11:45 a.m. on January 20, 2005. Smith testified that at about 8:30 a.m. on the same day, a “carload of Vanowen Street gang members drove to Van Nuys High School . . . .” Counsel for Christopher objected that the testimony was irrelevant and had not been disclosed in discovery. Appellant’s attorney added that it was “outside the scope.” The prosecutor argued the prior incident established the motive for the crimes against Aguirre. The court agreed to admit the testimony subject to a motion to strike. Counsel for Christopher argued no showing was made that the minors heard about the incident. The court rejected the argument on the ground counsel could cross-examine Smith on that point. Smith then testified that at about 8:00 a.m. a “carload of Vanowen Street gang members” approached Barrio Van Nuys gang member Brian S. and beat him with a baseball bat. Brian S. required hospitalization. Appellant’s attorney moved to strike the evidence as irrelevant. The court disagreed, stating that the evidence was relevant to the gang allegations.

No evidence established that any of the co-minors were aware of the attack upon Brian S. If they did not know or have some state of belief about the attack, it could not possibly have been the motive for the charged offenses. Accordingly, absent any evidence tending to establish their awareness of the attack, the prosecutor’s theory of relevance was invalid.

Respondent effectively concedes this point, but argues that the evidence was relevant to prove “the frequent, ongoing, and violent clashes between appellant’s gang and his rival gang.” However, the existence of frequent, ongoing, violent clashes between Barrio Van Nuys and any other gang was irrelevant, unless it supported an inference of motive, which required proof of knowledge of the Brian S. beating.

The evidence regarding the attack on Brian S. was irrelevant and therefore inadmissible. The trial court abused its discretion by overruling the defense objections.

c. Prejudice from erroneous admission

The court’s erroneous admission of the evidence, however, does not require reversal unless it is reasonably probable appellant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson (1956) 46 Cal.2d 818, 836.)

Appellant argues the admission of the evidence was prejudicial because, without it, insufficient evidence showed his crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members,” as required to support the court’s finding on the gang enhancement allegation with respect to each count. In assessing the sufficiency of evidence, the whole record is reviewed in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) Although this standard differs from the Watson reasonable probability test to determine whether the evidentiary error was prejudicial, appellant’s formulation of prejudice and his intertwined sufficiency of evidence contention necessitate a review and determination of the sufficiency of the evidence supporting the gang enhancement allegations.

Smith effectively claimed expertise regarding the Barrio Van Nuys gang. He testified he was the “senior man” in the Van Nuys Special Enforcement Gang Unit of the Los Angeles Police Department. His assignment at the time of the adjudication hearing was the Barrio Van Nuys gang. He described, in general terms, his training and experience. Defense counsel did not challenge his qualifications as an expert, but only objected that his response regarding training was vague. The court told counsel to explore this on cross-examination, but none of the minors’ attorneys inquired about Smith’s expertise on cross-examination.^[5]

Smith testified to the size, age, common hand signals, primary criminal activities, and pattern of criminal gang activity of the Barrio Van Nuys gang. He noted that the members of the gang used a modified version of the New York Yankees logo as their common insignia. He also testified that two Barrio Van Nuys gang members had been convicted of unrelated assaults with firearms.

Smith also testified that he knew appellant and his co-minor brothers, as well as Patrick Kelly. Smith testified appellant and his co-minor brothers were all members of the Barrio Van Nuys gang, and appellant and his twin were from the same clique