In re G.D.
Filed 1/30/14 In re G.D. CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re G.D., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
G.D.,
Defendant and
Appellant.
A138559
(Alameda
County
Super. Ct. No. SJ13020590)
G.D. appeals from an
Code, § 602, subd. (a)) after the juvenile court sustained an allegation that
he possessed a firearm in a school zone (Pen. Code, § 626.9). Defendant contends that there is insufficient
evidence to support the court’s finding. He also argues that the
association with known gang members is unconstitutionally vague and overbroad. We affirm.
On March 11, 2013, Officer Valencia received a call about a fight involving a gun at
the Hayward Community Day School. Upon noticing Valencia’s
arrival, the students at the scene started running away. About 15 minutes after the original call, another
officer informed Valencia that he found a gun in a garbage can in the back of the
school. After collecting the gun, officers
arrested E.C., whom they found running from the scene. Valencia
identified defendant and E.C. as being at the scene in a video of the activity.
Later that day, E.C. provided Valencia
with a statement, indicating that she had been having problems with some of the
students at the school, and that she and three friends, whom she would not
name, went to the school to fight these students. She later testified that defendant and C.R.
were the individuals she was with that day.
E.C. stated that one of her friends had brought a gun and that while
walking to the school, she placed the gun in the waistband of her pants for
some time. She gave the gun back to her
friend before they got to the school.
E.C. told officers that the gun “belongs to our gang D.G.F.†She had previously told Valencia
that she had been “Norte†for about three years and in “D.G.F.†for about one
year.
On March 12, defendant told Valencia that
he was with his girlfriend, E.C., and his friend “C.â€, later identified as
C.R., on the day of the fight. C.R. told
defendant that he had a problem with some kids at school, showed defendant a
gun, and said he wanted to fight the kids after they got out of school. Defendant told Valencia
that he, E.C., and C. took turns holding the gun, and that when they got to the
school, defendant “gave the gun back to [C].†The following day, Valencia
spoke to defendant again, whereupon he changed his statement to say that the
gun belonged to him, and that he had pointed the gun at the crowd during the
At the jurisdictional hearing,
defendant testified that his prior statements to Valencia
were not true. He testified that C.R.
was the one who pulled out the gun during the fight, and that he did not fight
or touch the gun. The juvenile court did
not find defendant’s testimony credible. The court sustained the charge of possessing a
firearm in a school zone and imposed, among other things, standard gang
conditions. The conditions prohibited
the minor from associating with individuals he knows or should know to be
involved in a gang, and from wearing items reasonably known to be associated
with or symbolic of gang membership. Defendant
filed this timely appeal.
A. Sufficiency of the
Evidence
Defendant
contends that there was insufficient evidence to support the finding that he
possessed a firearm in a school zone. We
review the trial court’s finding under the substantial evidence standard. (
Cal.App.4th 1654, 1656.) Under this
standard, we review the whole record “in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.†(People v. Johnson (1980)
26 Cal.3d 557, 578.) If the
circumstances reasonably justify the trier of fact’s finding, reversal of the
judgment is not warranted despite the existence of circumstances which might
also be reasonably reconciled with a contrary finding. (People
v. Reilly (1970) 3 Cal.3d 421, 425.)
Reversal is only appropriate where it “clearly appear[s] that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
judgment].†(People v. Redmond (1969) 71 Cal.2d 745, 755.)
Penal Code section 626.9, subdivision
(b) provides that “[a]ny person who possesses a firearm in a place that the
person knows, or reasonably should know, is a school zone . . . shall
be punished as specified in subdivision (f).â€
The record supports the court’s finding that defendant committed this
offense.
On two occasions defendant admitted
to Valencia that he possessed the gun on school grounds. The day after the incident, he told Valencia
that he was accompanying C.R., and his girlfriend E.C. to school to fight some students. They passed around the gun, and when they
arrived at school, defendant “gave the gun back to [C].†In defendant’s second statement to Valencia,
he admitted that the gun was his and that he had pointed the gun during the
fight. E.C. also provided a statement to
Valencia the day of the incident indicating that a gun was being passed
between her and some friends on their way to school. E.C. testified that defendant was one of the
friends with her. Moreover, Valencia
identified both defendant and E.C. as being present during the fight at the
school.
While defendant changed his story at
the jurisdictional hearing and claimed
that he did not fight at school or possess the gun there, the court found that
his testimony was not credible. It was
for the trial court to determine which version of the events was the more
credible. The power to judge the
credibility of witnesses, to resolve conflicts in the testimony, to weigh the
evidence and to draw factual inferences is vested in the trial court. (People
v. Leyba (1981) 29 Cal.3d 591, 596.)
Hence, while defendant’s statements and testimony about being in
possession of the gun were inconsistent, the evidence as a whole, viewed in the
light most favorable to the judgment, showed that he at some point while in the
school zone was in possession of the gun.
In sum, the evidence is sufficient to support the court’s finding.
B. Probation
Conditions
Defendant contends that since he
does not associate with any specific gang, the gang-related conditions of
probation are unconstitutionally vague and overbroad.
Juvenile courts have broad
discretion in establishing the conditions of probation. “The court may impose ‘any . . . 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.’ [Citation.]â€
(In re Antonio R. (2000) 78
Cal.App.4th 937, 940.) Juveniles are
deemed to be more in need of guidance and supervision than adults; thus, their
rights are circumscribed. (
impermissible for an adult offender may be reasonable for a minor. (In re
Frank V. (1991) 233 Cal.App.3d 1232, 1242.)
The juvenile court’s discretion is
not unlimited. A juvenile probation
condition must relate to the crime of which the offender was convicted, relate
to conduct which is itself criminal, or require or forbid conduct which is
reasonably related to future criminality.
(In re Babak S. (1993) 18
Cal.App.4th 1077, 1084; People v. Lent (1975)
15 Cal.3d 481, 486.) A condition of
probation that forbids conduct which is not itself criminal is valid only if
that conduct is reasonably related either to the crime of which the defendant
was convicted, or to future criminality.
(Ibid.)
Here, the court imposed standard
gang conditions restricting the minor from associating with any person known to
him or who reasonably should be known to him to be involved in the activities
of a criminal street gang. The
conditions also restricted defendant from wearing or displaying items or
emblems reasonably known to be associated with or symbolic of gang
membership.
The court’s imposition of gang
conditions was reasonable in this case. Defendant
admitted to the probation officer that he has “ ‘friends who are Norte, we
get together sometimes and smoke weed.’ †He admitted that he lied to Valencia in
order to protect his friend C.R., and that he knew C.R. was in a gang. E.C., defendant’s girlfriend, had been “Norteâ€
for about three years and in “D.G.F.†for about one year. E.C. told officers that the gun “ ‘belongs
to our gang D.G.F.’ †Even though
defendant was not currently in a gang, the propriety of gang terms does not
turn on whether a minor is currently involved in a gang. (People
v. Lopez (1998) 66 Cal.App.4th 615, 624.)
In light of the minor’s relationship and association with gang members,
the court’s order was reasonable as it sought to prevent future
criminality. (See In re Michael D. (1989) 214 Cal.App.3d 1610, 1616–1617 [probation
conditions designed to curb dangerous associations with gangs reasonable];
1496, 1502 [“an order directing a minor to refrain from gang association is a
reasonable preventive measure in avoiding future criminality and setting the
minor on a productive courseâ€].)
Relying on In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), defendant argues that the condition prohibiting
possession of items symbolic of gang membership is unconstitutionally vague. Defendant’s reliance on Sheena K., however, is misplaced.
In Sheena K., the court held
that the condition that the defendant not associate with anyone “ ‘disapproved
of by probation’ †was both vague and overbroad because the juvenile court
did not require that in order to be in violation, the defendant must know which
persons were disapproved of by the probation officer. (Id. at
p. 890.) The court in
condition ‘must be sufficiently precise for the probationer to know what is
required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations
on a person’s constitutional rights must closely tailor those limitations to
the purpose of the condition to avoid being invalidated as unconstitutionally
overbroad.†(Ibid.)
Unlike Sheena K., the conditions here are narrowly drawn to prohibit the
minor from associating only with individuals he knows or should know to be
involved in a gang, and from wearing items reasonably known to be associated
with or symbolic of gang membership. The
conditions as they stand include a knowledge requirement, providing adequate
notice as required by Sheena K. (Sheena
K., supra, 40 Cal.4th at p. 892.)
Defendant also contends the
restriction on gang colors is unconstitutionally overbroad because the colors he
is prohibited from wearing are not limited to the gang with which the minor is
known to associate. He points out that
red and blue are colors associated with the Norteño and Sureño gangs,
respectively, and that the record is devoid of evidence that he is associated
with any gang. According to defendant,
the condition is overbroad because it reaches the colors of gangs that he is
not known to have any association with, and thus, the conditions would require
defendant to engage in a study of gang culture to guess whether he is in
violation of his probation. Defendant
requests that the conditions be modified to include the specific name of the
gang with which the minor is known to associate.
We reject this contention. The court in People v. Leon (2010) 181 Cal.App.4th 943, 950 considered whether a gang condition that prohibited the defendant
from wearing or displaying clothing or other items that were evidence of
affiliation with or membership in a criminal street gang was overbroad because
the condition was not limited to the gang with which the defendant was known to
associate, the Norteños. The court held
that the word “Norteño†did not need to be mentioned to save the condition from
being overbroad. (Id. at pp. 950–951.) “Defendant’s
need for rehabilitation is due to his association with a criminal street gang,
and the probation condition can be aimed squarely at that without inserting the
word ‘Norteño’.†(Id. at p. 951.) We agree
with the court’s reasoning in
Accordingly, we uphold the court’s
imposition of gang-related probation conditions.
The order is affirmed.
_________________________
Rivera,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Humes, J.
