In re Deandre W.

Filed 10/5/06 In re Deandre W. CA2/25

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 orders of the Superior Court of Los Angeles County. Charles Clay III, Judge. Affirmed.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Juliet H. Swoboda, Deputy Attorney General, for Plaintiff and Respondent.

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The juvenile court sustained a petition alleging that appellant Deandre W. committed an assault with a deadly weapon or by means likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a), and committed battery with serious bodily injury in violation of section 243, subdivision (d), both felonies. The trial court also sustained the allegations that in the commission of the assault and the battery, appellant personally inflicted great bodily harm within the meaning of section 12022.7, subdivision (a). The court found that appellant was a person described by Welfare and Institutions Code section 602, adjudged him to be a ward of the court, and placed him in a short term camp community program and in the care, custody and control of the probation officer. The juvenile court determined appellant's maximum period of confinement to be seven years.

Appellant appeals from the orders sustaining the petition and adjudging him a ward of the court, contending that the juvenile court erred in imposing the section 12022.7 enhancement and that probation condition number 12 must be stricken. We affirm the juvenile court's orders.

Facts

On Friday, April 29, 2005, at about 11:30 a.m., while Jeffrey Perkins was having lunch at Del Amo Burgers, he felt an object hit the back of his neck. The object was a plastic BB. He turned around and said something like, "Hey, that hurt." He saw appellant, two other males and a female sitting about two booths away, laughing. Perkins said, "That's not funny. That's serious. It could put somebody's eye out."

Perkins moved to the other side of the booth so that he could keep an eye on appellant and the others. Someone in appellant's group threw a box at Perkins. Perkins threw a napkin holder to the floor behind one of the males in the group. He then realized he needed help. When he stood up, appellant asked, "Where are you going?" Perkins replied that he was going to get help. Appellant pushed Perkins, then hit him in the nose. Perkins was hit at least ten times. He could feel a second person hitting him in addition to appellant, but could not see that person. Employees at the restaurant stopped the fight.

Los Angeles County Sheriff's Deputy Jason Gipson went to Del Amo Burgers in response to a call. He saw appellant and his three companions walking in a parking lot. When they saw the deputy, they got wide-eyed and ran into a building. Deputy Gipson followed and detained them.

Perkins's nose bled for a full day after the fight. The nose had not healed by the time of trial, and Perkins had breathing problems as a result. One of Perkins's teeth was cracked during the fight and was extracted. It needs to be replaced with an implant.

Appellant admitted firing the BB gun, but testified that he was checking the BB gun to see if there was a BB in the chamber. He pointed the gun at the floor and pulled the trigger. The BB bounced off the floor and hit Perkins. Appellant did not intend to hit Perkins or anyone else. When Perkins turned around, appellant said that it was an accident.

At one point, a friend of appellant's threw a Styrofoam box onto the empty table between the group's table and Perkins's table. Perkins then threw the napkin dispenser toward appellant and his friends. Appellant was afraid. He thought Perkins was "flipping out." Perkins said something threatening.

Appellant and his friends got up to leave. As appellant was reaching to get something from the table, Perkins approached. Appellant shoved him away. Perkins again came toward him. Appellant pushed him again. Perkins approached with his hands in fists. Appellant was afraid. To protect himself, he pushed Perkins and punched him a total of three times. Perkins grabbed appellant and they began to wrestle. Some cooks at the restaurant broke up the fight.

Discussion

1. Maximum term of confinement

Allegations that appellant committed both assault and battery on one victim were sustained. The juvenile court stayed one of the offenses pursuant to section 654, but did not specify which one. Appellant contends that this matter must be remanded to the trial court because a section 12022.7 enhancement cannot be added to the battery offense. The enhancement can be added to the assault offense. Appellant contends that it would be "fundamentally unfair" if the juvenile court stayed the battery term, sentenced him on the assault term and imposed the enhancement.^[1]

Appellant is correct that a section 12022.7, subdivision (a), enhancement may not be imposed in addition to a sentence for battery in which serious bodily injury is inflicted in violation of section 243, subdivision (d). (§ 12022.7, subd. (g); People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375.) As appellant acknowledges, a section 12022.7 enhancement may be imposed in addition to a conviction for assault in violation of section 245. Appellant, in effect, asks us to presume that the court did not impose the proper sentence, but instead selected battery as the main term, added the section 12022.7 enhancement to that term, and created an unauthorized sentence.

The rule on appeal is to the contrary. The judgment is presumed correct. Moreover, we presume that a court is aware of the law and properly performs its duties. (Evid. Code § 664; see People v. Hubbell (1980) 108 Cal.App.3d 253, 260.) It is appellant's burden to show error, and he has not given us any reason to believe that the trial court erred.

Further, even assuming for the sake of argument that the trial court had discretion to select battery as the main term,^[2] and further assuming that the trial court was not aware of this discretion, we see no probability or possibility that a remand would result in a shorter maximum term of confinement for appellant. The juvenile court's comments indicate that it viewed appellant's offense as serious. The court noted that appellant's conduct had "been declining and this particular offense seems to be the icing on the cake." The court told appellant: "You're sliding towards a line that you don't want to cross and the April 29th petition, I think, crossed that line."

2. Probation condition number 12

Probation condition number 12 is a standard printed probation condition on the Los Angeles County Juvenile Court Conditions of Probation Minute Order form. It provides: "Do not be within one block of any school ground unless enrolled, attending classes, on approved school business or with school official, parent or guardian." Appellant contends that this condition is improper because it is not related to criminality or his offense and is constitutionally overbroad because it does not specify that he know that he is within one block of a school. Respondent contends that appellant has waived these claims by failing to object to condition number 12 in the trial court.

The issue of waiver under these circumstances is currently before our Supreme Court in In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, in case number S123980.^[3] We will assume for the sake of argument that appellant has not waived his claims.

Any violation of probation must be willful. Thus, appellant could not be found in violation of the challenged probation condition unless he knew he had traveled to within one block of a school. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1116 [involving a challenge to an injunction prohibiting association with gang members because it did not specify that the enjoined party know that an individual was a gang member; Court found that the party seeking to enforce the injunction would have to establish the enjoined party's own knowledge of the associate's gang membership].)

The juvenile court has very broad discretion to set probation conditions. (In re Binh L. (1992) 5 Cal.App.4th 194, 203.) A condition of probation is invalid only if it has no relationship to the crimes of which the offender was convicted, relates to conduct which is not in itself criminal and requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.)

Juvenile probation is an ingredient of a final order for the minor's reformation and rehabilitation. (In re Tyrell J. (1994) 8 Cal.4th 68, 81.) In planning the conditions of supervision of a minor, the juvenile court must consider the minor's entire social history as well as the circumstances of the crime. (In re Todd L. (1980) 113 Cal.App.3d 14, 20.)

Here, appellant was with friends when he committed the current offense, and these friends were not a good influence on him. The offense was committed on a Friday, during what seems to have been normal school hours. Appellant's grades were poor. He had an anger management problem. Keeping appellant away from an area of potential conflict reduced the chances of future criminality. Thus, this condition addresses the problem of appellant's potential future criminality. It is proper.

Disposition

The juvenile court's orders are affirmed. The clerk of the juvenile court is directed to prepare an amended minute order clarifying that the maximum term of confinement consists of a four year term for the assault conviction, plus the section 12022.7 enhancement, and that sentence on the battery conviction is stayed pursuant to section 654.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, ACTING P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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^[1] Respondent contends that appellant has waived this claim by failing to object in the juvenile court. We agree in part. Appellant could not waive his claim that the sentence is unauthorized, but he has waived his claim that the sentence is unfair.

^[2] Respondent contends that Penal Code section 726 required the trial court to impose sentence on the assault conviction so that the court could impose the section 12022.7 enhancement. We do not reach this contention, as we see no reason to doubt that the juvenile court did impose sentence on the assault term. We note that section 654 would require imposition of the assault term if the defendant were an adult. (People v. Kramer (2002) 29 Cal.4th 720.)

^[3] The case also involved the issue of whether a knowledge requirement may or may not be inferred where a juvenile is ordered: "Do not associate with anyone disapproved of by the probation officer or your parents."