In re Rolando O.

Filed 8/29/06 In re Rolando O. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Rudolph Diaz, Judge. Wardship order affirmed.

Jonathan B. Steiner and Ronnie Duberstein, 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, Assistant Attorney General, Mary Sanchez, and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

The minor, Rolando C., appeals from the September 12, 2005 orders declaring him a ward of the court (Welf. & Inst. Code,

^[1] § 602) and placing him home on probation. The juvenile court sustained the allegations of a petition filed June 6, 2005, charging the minor with criminal threats (Pen. Code, § 422) and misdemeanor firearm exhibition. (§ 417, subd. (a)(2).) The minor argues: there was insufficient evidence to support the juvenile court’s true finding that he exhibited a firearm; the juvenile court improperly denied his section 701.1 dismissal motion; and the juvenile court imposed an unconstitutional probation condition. We affirm the wardship order.

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909; see also In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089 [standard of proof is the same in juvenile proceedings as that required in adult criminal trials]; In re Jose R. (1982) 137 Cal.App.3d 269, 275 [same].) Veronica R. dated the minor for approximately four or five months beginning in September 2004. Veronica broke up with the minor in late February 2005. At approximately 8 p.m. on March 8, 2005, Veronica met the minor at a vacant house three houses down from her own to return his cell phone and other belongings he had left at her home. The minor wanted to remain friends with Veronica. However, Veronica declined to do so. Veronica’s 30-year-old brother, Fernando, passed by in his car. Fernando called Veronica over to his car. Fernando asked Veronica if the minor was following her. Veronica said that he was. Fernando got out of the car and said to the minor: “‘What’s going on? What are you doing? Is anything happening?’” The minor responded, “‘No, I’m not bothering her.’” Fernando got back into his car and left.

Thereafter, the minor pulled out a flat black gun from his pants pocket. The gun did not have a cylinder. The minor pointed the gun towards Veronica’s body while standing behind her. Veronica was standing closer to the sidewalk. The minor said, “‘Okay, you want to get your family involved.’” The minor placed his left arm around Veronica’s chest and pulled her toward the vacant house. Veronica tripped and fell on the grass. Veronica got up and began walking towards her home.

The minor called to her twice and said, “‘Let me just tell you one more thing.’” When Veronica turned around, the minor had switched the gun to his left hand. The minor raised the gun and pulled back the slide. The minor said, “‘Watch tomorrow your sister.’” Veronica’s 16-year-old sister, Lilliana, went to the same school as the minor. The minor did not get along with Lilliana. The minor had previously indicated that he would send someone after Lilliana “if anything happened.” Veronica believed the minor meant he would send someone to hurt Lilliana. Veronica believed the minor would hurt Lilliana because he had the gun in his hand. The minor had previously shown Veronica a gun in his drawer in January 2005 and stated he was “just carrying it.” However, the gun he held on March 8, 2005, appeared to be a different firearm. Approximately 5 to 10 minutes after Veronica went into her house, she received a telephone call. Veronica believed the telephone call was from the minor’s sister or his sister’s friend. Veronica told her 25-year-old sister, Maria, about what occurred. Thereafter, they called the police.

First, the minor argues there was insufficient evidence to support the juvenile court’s finding that he exhibited a firearm. However, there was substantial evidence to support the minor’s conviction for firearm exhibition. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576; see also People v. Gurule (2002) 28 Cal.4th 557, 630.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319; People v. Moon (2005) 37 Cal.4th 1, 22; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258; People v. Bolin (1998) 18 Cal.4th 297, 331; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Hughes (2002) 27 Cal.4th 287, 370.)

There was substantial evidence to support the minor’s conviction for exhibiting a firearm. Penal Code section 417, subdivision (a)(2) provides in pertinent part: “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: . . . .” (See also People v. Sanders (1995) 11 Cal.4th 475, 542; People v. Rivera (2003) 114 Cal.App.4th 872, 877.) The California Supreme Court has held: “The weapon need not have been pointed directly at a victim. (People v. Mercer (1980) 113 Cal.App.3d 803, 806.)” (People v. Sanders, supra, 11 Cal.4th at p. 542.) As to the exhibition element, there is no real issue.

The minor argues that the evidence does not establish that the gun was a real firearm rather than an imitation. At the adjudication hearing defense counsel argued: “Veronica said she didn’t know if it was a real or fake gun. The charge requires that it be a firearm.” The juvenile court responded: “Make it clear, I think it’s a gun. Not a problem. It was a gun. Convinced beyond a reasonable doubt, beyond a reasonable doubt it was, given his history. [Veronica] described a weapon on two occasions. So I do believe [Veronica] saw and there was exhibition of a firearm.” The Penal Code provides a separate provision for the exhibition of an imitation firearm in section 417.4. Appellate courts have therefore concluded that a violation of Penal Code section 417 involves the use of a real firearm. (In re Michael D. (2002) 100 Cal.App.4th 115, 123-124 [“[Penal Code s]ection 417, subdivision (a)(2) proscribes drawing or exhibiting an actual firearm in a threatening manner”]; In re Jose A. (1992) 5 Cal.App.4th 697, 700-702 [“We conclude the Legislature intended to restrict the meaning of firearm in [Penal Code] sections 245, subdivision (a)(2) and 417, subdivision (a)(2) to exclude such instruments as pellet or BB guns”].)

Nonetheless, whether a firearm is real may be demonstrated by circumstantial evidence. California courts have held: “[In] appropriate cases the fact finder may draw the inference from the circumstances surrounding use of a gun that it was real and was loaded. [Citations.]” (People v. Brookins (1989) 215 Cal.App.3d 1297, 1304; accord, People v. Aranda (1965) 63 Cal.2d 518, 533, abrogated on other grounds by Prop. 8 as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465; People v. Orr (1974) 43 Cal.App.3d 666, 672.) Similarly, in People v. Rodriguez, supra, 20 Cal.4th at page 12, the California Supreme Court held: “California courts have often held that a defendant’s statements and behavior while making an armed threat against a victim may warrant a jury’s finding the weapon was loaded.” (See also People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541 [defendant’s words and actions in verbally threatening and displaying and aiming a gun supported evidence the firearm was operable]; People v. Montgomery (1911) 15 Cal.App. 315, 317-319 [in absence of direct evidence that the defendant’s gun was loaded, jury was entitled to reject his testimony under the circumstances where the accused was enraged, left a fight, and returned with a firearm, which was then pointed at the victim].)

The circumstantial evidence of the minor’s statements and behavior in this case support the juvenile court’s finding the weapon was real. After becoming upset, the minor drew a handgun from his pocket, pointed it at Veronica, and later pulled the slide on the weapon while threatening her. Veronica described the gun as a flat black gun without a cylinder. Veronica had previously seen a gun in the minor’s drawer, which she described as different from the one he pointed at her on March 8, 2005. We are bound to accept the logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. (People v. Carter, supra, 36 Cal.4th at p. 1258; People v. Combs (2004) 34 Cal.4th 821, 849.)

Second, the minor argues that the juvenile court improperly denied his section 701.1 dismissal motion following the presentation of the prosecutor’s case in chief. Section 701.1 provides: “At the [adjudication] hearing, the court, on motion of the minor or on its own motion, shall order that the petition be dismissed and that the minor be discharged from any detention or restriction therefore ordered, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602. If such a motion at the close of evidence offered by the petitioner is not granted, the minor may offer evidence without first having reserved that right.” In ruling on a section 701.1 dismissal motion, the juvenile court weighs the believability of the evidence and applies the proof beyond a reasonable doubt standard. (In re Anthony J. (2004) 117 Cal.App.4th 718, 727; In re Andre G. (1989) 210 Cal.App.3d 62, 66.)

Here, defense counsel made the dismissal motion as to both counts immediately after the prosecutor rested. The juvenile court found that the evidence demonstrated that the minor had a real gun: “Further, count 2, I think it was a gun. He had a history of possessing guns and it was a gun in this instance, as well.” As noted, there was substantial evidence to support the prosecutor’s allegation that defendant drew a real handgun, activated the slide on it, and threatened Veronica. As a result, the juvenile court could reasonably deny the dismissal motion.

Third, the minor argues the juvenile court improperly imposed the following probation condition, “You’re also to have no dangerous or deadly weapons in your possession, nor remain in the presence of any unlawfully armed person.” The minor argues the condition violates his federal constitutional right to association and is unconstitutionally overbroad. The minor argues the probation condition at issue must be modified by adding the element of knowledge.

The minor has forfeited the right to raise the issue of the juvenile court’s exercise of discretion on appeal. Defense counsel did not object at the time the conditions were imposed. Thus, any contentions concerning the inappropriateness of the conditions are the subject of waiver and forfeiture. The California Supreme Court has held that an adult defendant may not challenge the reasonableness of conditions of probation for the first time on appeal. (People v. Welch (1993) 5 Cal.4th 228, 232-238.) The Welch court specifically disapproved the contrary holding in In re Jason J. (1991) 233 Cal.App.3d 710, 714, thereby making the waiver doctrine applicable to juvenile proceedings. (People v. Welch, supra, 5 Cal.4th at pp. 233, 237.) In the decision of In re Josue S. (1999) 72 Cal.App.4th 168, 170, 173, we reiterated that conclusion. (See also People v. Gardineer (2000) 79 Cal.App.4th 148, 151; In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 536-537; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 971; but see In re Justin S. (2001) 93 Cal.App.4th 811, 813-816.)

Notwithstanding such a waiver, the condition of probation at issue here was reasonably imposed. Section 730, subdivision (b), provides in pertinent part: “When a ward . . . is placed under the supervision of the probation officer or committed to the care, custody and control of the probation officer, the court may make any and all reasonable orders for the conduct of the ward. . . . The court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” The juvenile court enjoys broad discretion to impose conditions of probation that will serve to rehabilitate the minor. (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82; In re Josh W. (1997) 55 Cal.App.4th 1, 5; Welf. & Inst. Code,§ 730, subd. (b).) That discretion will not be disturbed on appeal in the absence of manifest abuse. (In re Abdirahman S., supra, 58 Cal.App.4th at pp. 968-969; In re Josh W., supra, 55 Cal.App.4th at p. 5; In re Tanya B. (1996) 43 Cal.App.4th 1, 7, overruled on a different point by In re Justin S., supra, 93 Cal.App.4th at p. 812; In re Bacon (1966) 240 Cal.App.2d 34, 45-46.)

In People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115, the California Supreme Court held: “‘A clear and precise enactment may . . . be “overbroad” if in its reach it prohibits constitutionally protected conduct.’ [Citation.]” (See In re Jason J., supra, 233 Cal.App.3d at p. 714.) The Gallo court set forth two principles to guide an evaluation of a probation condition to determine whether it is unconstitutionally vague: “[A]bstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law’s meaning, giving facially standardless language a constitutionally sufficient concreteness. . . .

The second guiding principle is the notion of ‘reasonable specificity’ [citations] or ‘”’[r]easonable certainty.’”’ (People v. Victor (1965) 62 Cal.2d 280, 300, italics added; see also In re Marriage of Walton (1972) 28 Cal.App.3d 108, 116 [statute will not be held void for vagueness ‘if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources’].” (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1116-1117.)

In this instance, the condition that the minor not “remain in the presence of any unlawfully armed person” was reasonably related to the enforcement of those matters as well as the minor’s potential future threat to public safety. (See In re Antonio R. (2000) 78 Cal.App.4th 937, 941-942 [condition requiring permission to leave the county is reasonable to prevent criminal behavior related to another county]; In re Todd L. (1980) 113 Cal.App.3d 14, 20 [search condition is reasonable in enforcing drug-related conditions even where there was no evidence the crime was drug or alcohol related].) In addition, our colleagues in the Fourth District Court of Appeal have held that juvenile conditions of probation may be broader than those imposed on adult offenders. The Courts of Appeal have held, “This is because juveniles are deemed to be more in need of guidance and supervision. . . .” (In re Antonio R., supra, 78 Cal.App.4th at p. 941; In re Byron B. (2004) 119 Cal.App.4th 1013, 1015-1016; In re Frank V. (1991) 233 Cal.App.3d 1232, 1242-1243 [“‘[E]ven where there is an invasion of protected freedoms “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.”’ [Citations.]”)

The minor argues the condition he not remain in the presence of any unlawfully armed person is unconstitutionally vague. He further argues the condition does not specify that he know that the individual with whom he is associating is unlawfully armed. However, it is presumed any effort to enforce the probation conditions will only be done so after the juvenile court imposes a knowledge requirement. Moreover, by its own language, the condition does not prohibit constitutionally protected conduct and is reasonably related to the “‘rehabilitative purpose of probation and constitutional parental authority.’” (In re Byron B., supra, 119 Cal.App.4th at p. 1017, quoting In re Frank V., supra, 233 Cal.App.3d at p. 1243; Antonio R., supra, 78 Cal.App.4th at p. 942.) Finally, the minor’s threatening use of a gun in the present case and prior possession of a different firearm further supports imposition of this probationary condition.

The wardship order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J. KRIEGLER, J.

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