In re J.A.















Filed 1/9/13 In
re J.A. CA2/5

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION FIVE




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In re J, A. et al., Persons Coming Under the Juvenile Court Law.	B241725 (Los Angeles County Super. Ct. Nos. PJ42841 1& PJ49022)
THE PEOPLE, Plaintiff and Respondent, v. J. A. et al., Defendants and Appellants.

APPEALS
from orders of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Mark R. Frazin, Temporary Judge. Reversed in part; modified in part; and
affirmed in part.

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

Steven
A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant M.R.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback
II and Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION



Two
minors, J.A. and M.R., appeal from May 17, 2012
adjudication and disposition orders. The
juvenile court found the minors committed second
degree robbery. (Pen. Code, §
211.) The juvenile court further found
J.A. committed the felony for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).) J.A. was placed in camp community placement
for a period not to exceed 10 years and 8 months. M.R. was placed home on probation, but the
juvenile court set a maximum period of physical
confinement. We modify the orders in
part as to both M.R. and J.A. We affirm
in all other respects.



II. THE EVIDENCE



A. The Prosecution Case



Kenneth
G. and his girlfriend, Nataly P., were walking down a street on their way to
catch a bus when Jasmine C. approached them.
Jasmine asked whether Kenneth and Nataly had seen money on the
ground. They said they had not. As they continued walking, four Latino males,
including J.A. and M.R., approached them.
Kenneth and Nataly did not know the boys. J.A. stood in front of Kenneth and Nataly. The three other Latinos surrounded Kenneth
and Nataly from behind. J.A. repeatedly
asked whether Kenneth and Nataly had taken a friend’s money. J.A. said someone said Kenneth had taken
it. M.R. said, “Do you have my $80 that
belong to my home girl?” Kenneth and
Nataly repeatedly denied they had the money.
Kenneth and Nataly were told to show the four youths their wallets. Nataly testified she showed the four young
men her wallet because she was “mostly” scared.
Kenneth was afraid he might be harmed.
Nataly had $10 in her wallet. She
did not give it to the assailants and they did not take it from her. One young Latino, who is not a party to this
appeal, was wearing a hat with a “P” on it.
The unidentified youth said the name of a local gang. The youth with the hat said, “You’re going to
get blasted.”

M.R.
walked towards Kenneth with a clenched fist.
Kenneth and Nataly were afraid.
They walked away. When Kenneth
looked back, he saw four males and three females following them. Nataly saw six boys and two girls. The one wearing the hat yelled out, “I know
you have the money.” J.A. walked up to
Kenneth and said, “Look, you have the money . . . .” Kenneth said, “No, I don’t have your
money.” Kenneth spoke to J.A. Kenneth said he had only $30. He said, “Just leave us alone and I’ll give
you the money.” J.A. said: “Okay.
That’s fine.” Kenneth began
handing J.A. the money. But, Nataly took
it from Kenneth’s hand. She said: “No, this isn’t their money. This is our money. Don’t give it to them.” J.A. shoved Nataly from behind, causing her
to drop her cellular telephone. Nataly
handed the money back to Kenneth and he took the money from her hand. Kenneth began handing the money to J.A. Suddenly, J.A. snatched it from Kenneth’s
hand. J.A. said, “This should be good
enough.” As this occurred, M.R. was
standing in front of Kenneth. M.R.’s
fist was clenched, as if he was going to attack. After J.A. snatched the money from Kenneth’s
hand, the group took off. Kenneth and
Nataly flagged down a passing police officer.
At trial, Kenneth and Nataly each denied they had picked up any money
from the ground.

Officer
Katherine O’Brien testified concerning the gang allegation. She had been working in gang enforcement for
just under two years. Officer O’Brien
had received training on gang culture and awareness in the police academy. She had worked side-by-side with tenured gang
officers in a specialized unit dealing with gang violence for nine months. Officer O’Brien had worked with other gang
units on task forces. She had taken
several courses and attended conferences on gang culture and violence. These included a four-day gang awareness
course given by the sheriff’s department and a five-day gang conference. As a member of the gang detail, Officer
O’Brien dealt with gang members on a daily basis. She was familiar with the gang local to the
area in which the present incident occurred.
Officer O’Brien had been assigned to monitor that gang for the nearly
two years that she had worked the gang detail.
She regularly spoke with: members
of the gang; members of rival gangs; and community members. She worked with officers who had previously
been assigned to cover the local gang.
Officer O’Brien had spoken with 15 members of J.A.’s gang, which
numbered 30 to 40 members. Officer
O’Brien testified: J.A. was a gang
member; he lived in the gang neighborhood;
J.A. had identified himself as a gang member in the past; he had gang
tattoos; and J.A. had a gang
moniker. Officer O’Brien testified that
M.R. was an associate of the gang. In
response to a hypothetical question tracking the facts of the present case,
Officer O’Brien testified the robbery was committed for the benefit of the
gang.



B. The Defense Case



Jasmine
testified she was walking to the market when $85 in cash fell out of her back
pocket. When she realized she had
dropped the money, she went back to look for it. She saw the money on the ground. She saw Kenneth and Nataly walking hand and
hand. They both reached down to pick up
Jasmine’s money, which was lying on the sidewalk. Kenneth picked up the money and put it in his
pocket. Jasmine approached them and
asked for her money. Kenneth and Nataly
laughed at her. They denied they had
Jasmine’s money. Kenneth said, “There’s
a couple ones thrown in back over there.”

Jasmine
called J.A. and told him what had happened.
She asked him to help her get her money back. J.A. and M.R. arrived to help. They were accompanied by individuals Jasmine
did not know. Jasmine told J.A. and M.R.
which direction the couple had gone in.
Jasmine watched as J.A. and M.R. caught up to Kenneth and Nataly. Jasmine did not see anything happen between
them. J.A. and M.R. returned. J.A. asked Jasmine, “Are you sure that they
got your money?” Jasmine said: “Yes, I’m positive. I seen them reach for it.” J.A. and M.R., accompanied by Jasmine, caught
up with Kenneth and Nataly a second time.
Two other boys were with them, but Jasmine was the only girl in the
group. J.A. told Kenneth and Nataly,
“[M]y friend told me that she saw you guys pick her money up.” Kenneth said:
“Oh, I’m sorry. My bad.” He reached into his pocket and took out
Jasmine’s money. It was folded just the
way she had folded it when she placed it in her pocket. He held the money out. Nataly snatched it from Kenneth’s hand. She said, “I’m going to call the cops.” Jasmine responded: “Well, go ahead. Call the cops. I didn’t do nothing. It’s my money.” Nataly became angry and threw the money on
the ground. Jasmine and her companions
picked up the money. Kenneth and Nataly
walked away.

M.R.’s
mother, Sonia S., testified she had contacted the detective in charge of her
son’s case. Sonia wanted to give him
Jasmine’s name. Sonia believed Jasmine
was a potential witness. In addition,
Sonia wanted to give the detective Jasmine’s mother’s name for the same
purpose. But the detective was
uninterested and would not take the names.
He told Sonia, “You are not understanding the situation.” Sonia further testified her son was enrolled
in school and planned to play football in college. Sonia denied M.R. had any tattoos. They did not live in the neighborhood where
the incident occurred, but her son went to school there.



C. Rebuttal



In
rebuttal, Kenneth and Nataly both denied they had picked up any money from the
ground. They denied any of the four
Latinos said, “My friend said she saw you take her money.” Kenneth denied ever saying: “Sorry.
My bad.” Kenneth also denied
seeing Nataly talking to Jasmine. And he
did not see Nataly throw any money on the ground.



III. DISCUSSION



A. Claim-Of-Right Defense



The
minors argue the juvenile court erred as a matter of law when it rejected their
claim of right defense to robbery. (See People
v. Tufunga (1999) 21 Cal.4th 935, 938, 950 [a claim-of-right defense can
negate the requisite felonious intent of robbery]; People v. Butler (1967) 65 Cal.2d 569, 573, disapproved on a
related point in People v. Tufunga,
supra, 21 Cal.4th at pp. 939, 956 [same].)
This argument is frivolous. The
juvenile court, as trier of fact, weighed the evidence, including Jasmine C.’s
credibility. The juvenile court could
reasonably find the minors did not act with the intent to reclaim Jasmine’s
property. (See People v. Demetrulias (2006) 39 Cal.4th 1, 24 [claim-of-right
defense turned on whether trier of fact believed defendant]; >People v. Tufunga, supra, 21 Cal.4th at
p. 944.) The trial court specifically
articulated that it did not find Jasmine credible. There was no misapplication of the law.



B. Gang Enhancement



J.A.
challenges the sufficiency of the evidence to support the gang enhancement
under section 186.22, subdivision (b)(1)(A).
He asserts the hypothetical posed to Officer O’Brien improperly assumed
two facts as to which there was insufficient evidence. Those two facts were that M.R. was a gang
associate and that Edgar Gonzalez was a fellow gang member who participated in
the robbery. The minor forfeited this
argument by failing to object to the hypothetical in the trial court. (Evid. Code, § 353, subd. (a); >People v. Boyette (2002) 29 Cal.4th 381,
450.) Even if the issue were properly
before us, we would not find any prejudicial error or abuse of discretion. It was for the trier of fact to determine
whether to credit Officer O’Brien’s opinion.
Moreover, as our Supreme Court has explained, “[The trier of fact] must
[also] determine whether the facts stated in the hypothetical questions are the
actual facts, and the significance of any difference between the actual facts
and the facts stated in the questions.”
(People v. Xue Vang (2011) 52
Cal.4th 1038, 1050; see also CALJIC No. 2.82; CALCRIM No. 332; >People v. Boyette, supra, 29 Cal.4th at
p. 452.) The juvenile court was qualified
to make that determination.







C. Maximum Term Of Confinement



The
juvenile court placed M.R. home on probation with a maximum confinement time of
five years. M.R. argues the juvenile
court order setting a maximum term of confinement should be stricken. M.R. correctly asserts that because he was
placed home on probation, the maximum term of confinement order has no legal
effect. (In re Ali A. (2006) 139 Cal.App.4th 569, 574; 10 Witkin, Summary of
California Law (2012 supp.) Parent & Child, § 944, pp. 563-564.) Moreover, under Welfare and Institutions Code
section 726, subdivision (c), the order was unauthorized. Welfare and Institutions Code section 726,
subdivision (c) provides: “>If the minor is removed from the physical
custody of his or her parent or guardian as the result of an order of
wardship . . . , the order shall specify that the minor may
not be held in physical confinement for a period in excess of the maximum term
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.” (Italics added.) Here, the minor was placed home on probation
and not removed from the physical custody of his parents or guardian. Thus, the order setting a maximum term of
confinement was unauthorized and must be stricken. (Welf. & Inst. Code, § 726, subd. (c);
see In re Matthew A. (2008) 165
Cal.App.4th 537, 541.)



D. Conditions of Probation



The
juvenile court ordered as a condition of M.R.’s probation, “You are not to
remain in any building, vehicle, or in the presence of any person where you
know one or more dangerous or deadly weapons or firearms or ammunition
exist.” M.R. asserts “dangerous or deadly
weapons or firearms” is unconstitutionally overbroad and vague because many
objects can be used as deadly weapons.
We disagree. The terms “dangerous
or deadly weapon or firearm” are well defined in the law; the condition is
sufficiently precise for the minor to understand what conduct is prohibited. (In re
R.P. (2009) 176 Cal.App.4th 562, 565-568; see People v. Rodriquez (1975) 50 Cal.App.3d 389, 398-399 [“deadly
weapon” is not unconstitutionally vague]; 10 Witkin, Summary of California Law,
supra, Parent & Child, § 939, p.
557; 27A Cal.Jur.3d (2011) Delinquent and Dependent Children, § 405, pp.
535-537.)

M.R.
further asserts the probation condition is overbroad in that dangerous or
deadly weapons or firearms or ammunition may exist in a large number of
establishments including a: police station
(which he has frequented in the past); courthouse (where he was adjudicated);
bank; museum; city hall; or any establishment that sells weapons including
Walmart, Dick’s Sporting Goods or Pro Bass Shops. The Attorney General concedes that the probation
condition is overbroad in this respect.
The Attorney General argues that the probation condition be modified to
specify, “[The minor] shall not have any dangerous or deadly weapon, firearm,
or ammunition in his possession, and shall not remain in any building or
vehicle where he knows any person unlawfully
possesses such a weapon or ammunition, nor remain in the presence of any
person whom he knows to unlawfully possess
such a weapon or ammunition.” (See >In re Sheena K. (2007) 40 Cal.4th 875,
892 [modification necessary to render condition constitutional]; accord, >People v. Moses (2011) 199 Cal.App.4th
374, 377.) We agree and shall so order.



E. Predisposition Credit



J.A.
received predisposition credits of 709 days.
We asked the parties to brief the question whether the juvenile court
miscalculated J.A.’s predisposition credit.
A minor is entitled to credit against maximum confinement time for all
days of actual predisposition confinement.
(In re Eric J. (1979) 25
Cal.3d 522, 533-536; In re Stephon L. (2010)
181 Cal.App.4th 1227, 1231-1232; In re
Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) When, as here, the juvenile court elects to
aggregate the maximum period of confinement based on multiple petitions, the
predisposition credits attributable to those petitions must be aggregated as
well. (In re Eric J., supra, 25 Cal.3d at pp. 533-536; >In re Stephon L., supra, 181 Cal.App.4th
at p. 1232; In re Emilio C., supra, 116
Cal.App.4th at pp. 1067-1068.) The
juvenile court has a nondelegable duty to calculate the number of days
earned. (In re Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079; >In re Emilio C., supra, 116 Cal.App.4th
at p. 1067.) J.A. should have received a
predisposition credit of 708 days on
three aggregated petitions. Pursuant to
a petition filed on September 8, 2010, J.A. was, on September 24, 2010, ordered
to camp community placement. He received
at that time a predisposition credit of 373 days. The 373 days would have included September
24, 2010. J.A. was placed home on
probation pursuant to a May 29, 2011 order.
J.A. was arrested on February 16, 2012, and on February 21, 2012, was
released to his mother. J.A. was again
arrested on February 26, 2012. The
present petition was filed on February 28, 2012. The disposition order was entered on May 17,
2012. Hence, in addition to the 373
days’ credit awarded on September 24, 2010, J.A. was confined for 247 days from
September 25, 2010, to May 29, 2011, for 6 days from February 16, 2012 to February
21, 2012, and for 82 days from February 26, 2012, to May 17, 2012, a total of
708 days. The May 17, 2012 order as to
J.A. must be modified to reflect 708 days of predisposition credit.



IV. DISPOSITION



The
order setting a maximum term of confinement for M.R. is reversed. The term of M.R.’s probation that the minor
not remain in any building and so forth is modified to provide as follows: “[The minor] shall not have any dangerous or
deadly weapon, firearm, or ammunition in his possession, and shall not remain
in any building or vehicle where he knows any person unlawfully possesses such
a weapon or ammunition, nor remain in the presence of any person whom he knows
to unlawfully possess such a weapon
or ammunition.” The May 17, 2012
disposition order as to J.A. is modified to









reflect 708 days of predisposition
credit. In all other respects, the
adjudication and disposition orders are affirmed.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS





TURNER,
P.J.





We concur:





MOSK,
J.





KRIEGLER,
J.