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IN RE ALONSO O., G043511. (2011)

Court: Court of Appeals of California Number: incaco20110527048 Visitors: 5
Filed: May 26, 2011
Latest Update: May 26, 2011
Summary: NOT TO BE PUBLISHED IN OFFICIAL REPORTS OPINION ARONSON, J. The juvenile court declared Alonso O. a ward of the court after it found he committed robbery. (Pen. Code, 211; all statutory citations are to the Penal Code unless otherwise noted; Welf. & Inst. Code, 602.) He contends the juvenile court imposed vague and overbroad probationary terms. For the reasons expressed below, we affirm the judgment as modified. I FACTUAL AND PROCEDURAL BACKGROUND In January 2010, around 10:30 p.m., 16
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

ARONSON, J.

The juvenile court declared Alonso O. a ward of the court after it found he committed robbery. (Pen. Code, § 211; all statutory citations are to the Penal Code unless otherwise noted; Welf. & Inst. Code, § 602.) He contends the juvenile court imposed vague and overbroad probationary terms. For the reasons expressed below, we affirm the judgment as modified.

I

FACTUAL AND PROCEDURAL BACKGROUND

In January 2010, around 10:30 p.m., 16-year-old Cody T. was walking home from a store with his friends, Dominic and Shane. Alonso and several companions drove up in a black van and parked nearby. Alonso, accompanied by his cohorts, ran towards Cody's group. Alonso identified himself as "Tripper," and yelled, "`I know your brother stole something from me. You are done.'"

Cody responded he did not have a brother who could owe Alonso money. Alonso grabbed his shoulder and pulled off his backpack. Alonso and his friends ran back to the van. Alonso entered the driver's side with the backpack. Cody and Dominic pounded on the van's window and demanded return of the backpack. The van backed up, turned around and accelerated toward them, and they jumped out of the way as it sped off. Alonso and his friends warned Cody if he followed, they would grab their "gats" and shoot them.

Cody told an investigating officer he dropped the backpack on the ground to defend himself. Dominic got between Alonso and him. When Cody reached down to grab his backpack, Alonso shouted "`Back up or we're going to blast our gats at you.'" Cody ran toward Shane's house. He did not mention pounding on the van's window and demanding return of the backpack.

Dominic testified Alonso, who Dominic described as a former friend from club soccer, and two or three companions approached from behind, yelling and cursing. Alonso said "`you know who we are,'" and "`I'm a Tripper from Amber leaf.'" Alonso pushed Cody and threatened to beat him up, saying "`come on, fight. Let's go.'" Cody responded "fine" or "all right," stepped back, and put his backpack down. Dominic interceded. Alonso said "`grab his bag [or stuff].'" Alonso grabbed the backpack, and one of his companions grabbed Dominic's store bag containing food and candy. Alonso and his friends retreated to the van, and Dominic and Cody chased after them, pounding on the windows as the van sped away.

A police officer found Alonso at a residence about two miles away. Cody's backpack was in a black minivan parked outside, between the driver and passenger seats.

Alonso testified they were leaving the grocery store parking lot when he saw Cody and his friends cross in front of the van. He recognized Cody because they had smoked marijuana together on a couple of occasions. Approximately two months earlier, Cody had stolen marijuana from him. Alonso and his friend Sergio got out of the van, and Alonso told Cody he was "going to fuck his ass up," and "to get ready." Alonso took off his jacket, and Cody set his backpack on the ground. Dominic interceded and asked Alonso why he wanted to fight. Alonso declared Cody had stolen Alonso's marijuana, but Cody explained his friend Devon had pilfered Alonso's marijuana. Alonso's friend said "take his backpack." Alonso picked up the backpack and they jogged back to the van. Alonso spoke to a police officer after his arrest and denied taking the backpack.

Following a jurisdictional hearing conducted in February 2010, the juvenile court found Alonso committed robbery. The court declared him to be a ward of the court and placed him on probation subject to various terms and conditions.

II

Discussion

The Probation Conditions Are Not Vague or Overbroad as Modified

As conditions of probation, the juvenile court ordered in open court Alonso "to have no personal, telephonic, electronic contact" with Cody, including contact through a third party other than an attorney, and not to come within 100 yards of Cody's location. Additionally, the court ordered him "not to be with anyone who is illegally armed. You're not to associate with anyone disapproved of by your parents, by the court, by probation, no one in a gang, a tagger crew, or probation or parole, no one who is under the influence of alcohol or drugs." It also ordered him "not to possess anything that shows gang affiliation or membership. You're not to be anywhere where Bishop Street congregates."

Alonso contends these conditions are vague because the juvenile court's failure to impose a knowledge requirement meant he could violate his probation without intending to do so. (In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.); In re Vincent G. (2008) 162 Cal.App.4th 238.) He acknowledges the court's minute order included a knowledge requirement for each of the challenged conditions, with one exception. As the Supreme Court explained in Sheena K., the courts have "recognized that a probation condition that otherwise would be deemed vague may be constitutional because the juvenile court offered additional oral or written comments clarifying that the minor must have knowledge of the persons disapproved of by the authorities." (Sheena K., at p. 891.) Sheena K. cited an appellate court's rejection of a vagueness challenge "to a probation condition prohibiting contact with any person disapproved of by a parent, probation officer, or others, because the juvenile court's minute order included the `crucial words "known to be"'; the condition was upheld as providing that the minor `must "not have direct or indirect contact with anyone known to be disapproved by parent(s)/guardian(s)/probation officer, staff."'" (Sheena K., at p. 891, italics added; see In re Byron B. (2004) 119 Cal.App.4th 1013, 1015, 1018.)

Similarly, the juvenile court's minute order provides Alonso is not to "knowingly be in the presence of any illegally armed person," is not to "associate with anyone who you know is disapproved of by the court, [etc.]," and is not to knowingly be in any gang area as indicated by the probation officer or the court, or "knowingly possess any item that indicates gang membership or affiliation." (Italics added.) The written clarifications in the minute order do not conflict with juvenile court's oral pronouncement of judgment. (Cf. People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471.) We reject Alonso's challenge to these conditions.

The same analysis applies to Alonso's contention the juvenile court's order he not "use, possess or be under the influence of drugs or alcohol," is overbroad. The minute order limits the condition to "illegal drugs or narcotics," and thus does not prohibit him from the use of legally prescribed drugs.

Finally, the Attorney General concedes the juvenile court's oral order that Alonso stay 100 yards away from Cody should be modified to include a knowledge requirement. We will modify the judgment accordingly. (§ 1260.)

III

DISPOSITION

The judgment is modified to reflect Alonso may not knowingly approach within 100 yards of Cody T. As modified, the judgment is affirmed.

WE CONCUR.

RYLAARSDAM, ACTING P. J.

FYBEL, J.

Source:  Leagle

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