In re E.R.

Filed 2/3/10 In re E.R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed and remanded with directions.

Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

E.R. argues the juvenile court imposed an unconstitutionally vague and overbroad condition of probation in a dispositional order which prohibits him from knowingly associating with criminal street gang or tagging crew members and from individuals using, possessing, selling or under the influence of alcohol or a controlled substance. For the reasons we discuss post, we conclude the probation condition, reasonably construed, is neither vague nor overbroad.

E.R. also contends the juvenile courts minute order must be corrected to accurately reflect the courts findings at the jurisdictional hearing; the Attorney General agrees. On remand, we direct the juvenile court to correct that minute order to reflect the courts finding E.R. did not commit the offense of resisting and obstructing an officer; the minute order currently and incorrectly states the court dismissed this allegation. The minute order shall also be corrected to delete its reference to the court finding a factual basis for plea as there was no plea in this case.

Background

I.

The October 3, 2008 Petition[1]

In September 2008, police officers responded to a disturbance call at a park in Anaheim. One of the officers who responded to the call was patrolling that area when he observed 17‑year‑old E.R. running through the park and flailing his arms while yelling and screaming. Another male minor, G.,[2] appeared to be chasing after E.R.

E.R. stopped running and started to walk toward the officer. The officer asked to speak to E.R. and G.; G. assisted E.R. who had difficulty walking on his own. E.R. was sweating profusely and had difficulty standing; he swayed back and forth and leaned. The officer smelled the odor of alcohol. Another officer who was present observed E.R.s eyes were red and watery and his clothing was dirty. E.R. also had difficulty maintaining a seated position as he appeared to be almost falling at times. E.R. did not respond to questioning. He was arrested for being intoxicated in public.

On October 3, 2008, a juvenile delinquency petition was filed alleging E.R. committed one count of misdemeanor public intoxication (alcohol and the controlled substance of toluene) in violation of Penal Code section 647, and one count of resisting and obstructing an officer in violation of section 148, subdivision (a)(1) (October 3 petition).

II.

The October 16, 2008 Petition

On October 14, 2008, 14‑year‑old A.S. was walking after football practice between 4:00 p.m. and 5:00 p.m. with teammate 14‑year‑old C.P. when they encountered a group of five guys sitting on a bench. Two members of the group, E.R. and A.A. got up and approached A.S. and C.P. and told them to empty their pockets. E.R. was drunk; he smelled like alcohol, his eyes were bloodshot, his speech was slurred, and he was unable to stand steadily.

After C.P. initially refused to comply with the demand to empty his pockets, E.R. said, [d]o it or Ill spill this beer on you. C.P. emptied his pockets because they looked like they were going to beat [him] and [A.S.] up. E.R. and A.A. were dressed like gangsters and were part of a group that outnumbered A.S. and C.P. C.P. gave them his wallet. E.R. and A.A. saw that C.P. did not empty his right pocket and told him to do so. C.P. took out his iPod and gave it to them; he was a little scared.

A.S. was nervous because E.R. and A.A. were bigger than he was. A.S. gave them 15 cents and an identification card. E.R. told A.S. to unfold his pocket; A.S. pulled out his cell phone. After E.R. reached out to grab A.S.s cell phone, A.S. backed up and ran away. Either E.R. or A.A. threw a water bottle at A.S. that hit him in the head.

On October 16, 2008, a juvenile delinquency petition was filed, alleging E.R. committed two counts of second degree robbery (October 16 petition).

III.

Jurisdictional Hearing, Dispositional Hearing, and Appeal

The October 3 and October 16 petitions were heard simultaneously at a jurisdictional hearing. The juvenile court found the second count of the October 3 petition (resisting and obstructing an officer) not true. The court found the remaining count of the October 3 petition for public intoxication true beyond a reasonable doubt and also found true beyond a reasonable doubt both counts of second degree robbery as alleged in the October 16 petition.

At the dispositional hearing, the juvenile court declared E.R. a ward of the Orange County Juvenile Court under Welfare and Institutions Code section 602 and ordered E.R. committed to juvenile hall for 150 days. The court imposed several probation conditions which included that E.R. was not to use, possess, or be under the influence of alcohol or illegal drugs or narcotics, alcohol, and was not to associate with anyone he knows is using/selling/possessing, or under the influence of alcohol or controlled substances.

E.R. appealed.

Discussion

E.R. argues (1) the juvenile court erred because it imposed a probation condition that is unconstitutionally vague and overbroad, and (2) the juvenile courts minute order, dated November 7, 2008, contains erroneous information that should be corrected to reflect the juvenile courts oral pronouncement of its findings after the jurisdictional hearing. We address each contention in turn.

I.

The Probation Condition Was Constitutional.

E.R. challenges the constitutionality of the following probation condition imposed by the juvenile court: Minor not to associate with anyone who you know is disapproved by the court, your parent/guardian, or probation officer, or anyone who you know is on probation or parole, or a criminal street or tagging crew or using/selling/ possessing, or under the influence of alcohol or controlled substances.

E.R. contends that probation condition is vague. He argues: While the condition contains a knowledge element as to disapproved persons or those on probation or parole, the knowledge element does not also expressly apply to persons in gangs or tagging crews or those using or possessing alcohol or controlled substances. We disagree. The condition prohibits E.R. from associating with anyone he knows who is on probation or parole or in a criminal street gangor in tagging crew or using/selling/ possessing or under the influence of alcohol or controlled substances. (Italics added.) We therefore conclude this probation condition must be reasonably interpreted to prohibit E.R. from associating with anyone he knows to be affiliated with a criminal street gang or tagging crew or he knows is using, selling, possessing, or under the influence of alcohol or a controlled substance. We therefore reject E.R.s vagueness challenge.

E.R. also contends the probation condition is overbroad on two grounds. First, he contends it is overbroad because it sets no time limit. E.R. argues: The broad nature of the word use in the condition provides little guidance to either minor or the alcohol-using individual of a permissible time frame between the presumable legal alcohol use and the subsequent association. In fact, there is no indication regarding passage of time that suffices between allowable alcohol use and permitted association between minor and the alcohol‑using individual.

The purpose for and the reasonable interpretation of this probation condition is to prohibit E.R. from associating with individuals who are currently using, selling, or possessing alcohol or a controlled substance, or who are engaging in conduct or otherwise displaying characteristics showing that they are currently under the influence of alcohol or a controlled substance. Such a condition is not unconstitutionally overbroad.

Second, E.R. contends the probation condition is overbroad because E.R. may not have any control over whether adults with whom he comes into contact are legally using alcohol or controlled substances, a problem he argues is compounded by another probation condition imposed by the court restricting him to his home between 10:00 p.m. and 6:00 a.m. E.R. argues he would be in violation of this probation condition if a parent or a guest of his parent were to have an alcoholic beverage at his residence. E.R. argues that the probation condition should be modified to prohibit his association with individuals unlawfully consuming alcohol or using controlled substances. If we were to modify the condition as proposed by E.R., it would require E.R. to discern lawful from unlawful consumption of alcohol or use of a controlled substance. Furthermore, the probation condition is designed, in part, to keep E.R. away from individuals who might be of age and able to lawfully consume alcohol but might supply it or otherwise encourage E.R.s use of alcohol. Thus, E.R.s proposed modification is untenable.

We also considered whether the probation conditions prohibition against E.R.s association with individuals using, selling, possessing, or under the influence of alcohol or controlled substances might be modified to exclude E.R.s residence or circumstances in which E.R. is in the presence of his parents. The record, however, shows E.R. has a serious problem with alcohol and the narrowing of this probation condition in that manner would open the door to situations that would undermine its purpose of keeping E.R. away from alcohol and controlled substances. We therefore conclude the probation condition as written is appropriate and clear to E.R. as to his responsibilities. We trust this condition will be reasonably interpreted using common sense such that he would not be found in violation of this condition in the event his parent or his parents guest consumed an alcoholic beverage at his residence or by associating with a schoolmate taking prescribed medication.

II.

The Minute Order Must Be Corrected to Accurately Reflect the Juvenile Courts Findings.

E.R. argues the November 7, 2008 minute order, which summarizes the juvenile courts findings following the jurisdictional hearing, must be corrected to reflect the courts oral pronouncement of its finding that E.R. did not resist and obstruct a police officer as alleged in the second count of the October 3 petition; the minute order erroneously states this count was dismissed on motion of petitioner. E.R. further contends the minute orders statement that Court finds factual basis for plea is also in error as there was no plea in this case. The Attorney General agrees that the minute order should be modified in both respects and the record supports such corrections.

[A] court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore direct the juvenile court to correct the November 7, 2008 minute order as set forth in the disposition.

Disposition

On remand, the juvenile court is directed to correct the November 7, 2008 minute order to reflect that the juvenile court found the second count of the October 3 petition not true and to delete the phrase Court finds factual basis for plea. The juvenile courts dispositional order is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

BEDSWORTH, J.

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[1] This petition is referred to as the second petition in the record because a prior juvenile delinquency petition was filed against E.R. in January 2008 alleging one count of petty theft of lost property in violation of Penal Code section 485 (a misdemeanor). In September 2008, the juvenile court found E.R. complied with all terms and conditions of informal probation under Welfare and Institutions Code section 654 and dismissed the January 2008 petition in its entirety.

[2] The record does not provide a first name or initial for G.