IN RE: ADRIAN C.

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Court of Appeal, Second District, California.

IN RE: ADRIAN C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ADRIAN C., Defendant and Appellant.

B220351

-- January 26, 2011

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Senior Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Adrian C. appeals from the juvenile court adjudication order sustaining two misdemeanor counts, and a disposition order in which the court ordered Adrian C. to remain a ward of the court, placed him in a camp-community placement program for three months, ordered that he remain subject to previous probation conditions, set a maximum period of physical confinement, and ordered the camp probation officer to compute Adrian C.'s credit for time served.   We reverse in part and remand for resentencing.

BACKGROUND

A July 24, 2009 petition pursuant to Welfare and Institutions Code section 602 1 alleged that Adrian C., then 15 years old and home on probation as a ward of the court under section 602, had committed two misdemeanors:  disobeying a court order, the Pacoima Project Boys Gang Injunction (Gang Injunction) in violation of Penal Code section 166, subdivision (a)(4) (count 1);  and possessing tools (a permanent marker) with the intent to commit vandalism and graffiti, in violation of Penal Code section 594.2, subdivision (a).

A subsequent petition filed on August 11, 2009, alleged that Adrian C. had committed three additional misdemeanors:  aggravated trespass in violation of Penal Code section 602.5, subdivision (b);  resisting a police officer, Officer Brown, in violation of Penal Code section 148, subdivision (a)(1) (count 2);  and resisting another police officer, also in violation of Penal Code section 148, subdivision (a)(1).

Adrian C. denied the allegations.

At an adjudication hearing on September 24, 2009, Los Angeles Police Department Officer Jose Mendoza testified that he worked in the Gang Enforcement Detail, monitoring the Pacoima Flats and Pacoima Project Boys gangs.   On June 5, 2009, at 10:30 p.m., Officer Mendoza was on foot patrol in the San Fernando Gardens housing projects.   Officer Mendoza saw Adrian C. standing between the apartment buildings.   In the past, Adrian C. had admitted to Officer Mendoza that he was a Project Boys gang member with the gang moniker “ ‘Pelon.’ ”   Officer Mendoza knew that the Gang Injunction was in effect against the Pacoima Project Boys gang, and the prosecution introduced the Gang Injunction into evidence.   Officer Mendoza also knew that Adrian C. was on probation, and that one condition of his probation was a curfew prohibiting Adrian C. from being outside his house between 9:00 p.m. and 6:00 a.m. except with parental consent.   The court took judicial notice of the curfew condition.

Adrian C. looked in Officer Mendoza's direction, and began to run away.   Officer Mendoza chased Adrian C. and yelled at him to stop, and Adrian C. complied.   Officer Mendoza noticed a yellow-tipped permanent marker in Adrian C.'s left hand.   Adrian C. dropped the yellow marker to the ground at his feet, and Officer Mendoza recovered it.   Officer Mendoza arrested Adrian C. for violating the Gang Injunction by possessing the yellow marker and for violating curfew, because the injunction required Adrian C. to “obey all laws.”   Officer Mendoza agreed that “violating curfew is just an infraction.”

Defense counsel moved to dismiss for insufficient evidence.   A violation of curfew is merely an infraction, the Gang Injunction only applied to misdemeanors or felonies, and “Adrian [C.] was not even cited or prosecuted whatsoever on curfew.”   There also was no evidence that Adrian C. possessed the marker with the intent to commit vandalism or graffiti.   The prosecutor responded that Adrian C. had a specific court order requiring him not to be outside after 9:00 p.m., and when he was outside at 10:30 p.m. he was in “clear violation of this court's order, and it's a clear violation of the gang injunction to obey all laws.   Whether it's an infraction, misdemeanor, felony, it's ‘obey all laws' and he failed to do so.”

The court deemed the defense motion as made pursuant to section 701.1, and dismissed the count regarding the permanent marker because “the People have to show that he had that intent at that moment at that time to commit a vandalism and graffiti.   That's not been shown.”   Defense counsel continued to argue that count 1 (violating the Gang Injunction by being outside after curfew) should also be dismissed because Adrian C.'s curfew violation was only an infraction and did not violate the Gang Injunction.   Counsel also pointed out that there was no section 777 allegation of a probation violation before the court.2  Defense counsel renewed the argument after the close of evidence (the defense put on no witnesses, and the prosecution submitted without further argument).   The court denied the motion as to count 1, and found true and sustained the petition as to count 1, which was a misdemeanor.

As to the second petition filed August 11, 2009, Adrian C. pleaded guilty to count 2, resisting a police officer, a misdemeanor.   The court then dismissed the remaining two counts in the August 11, 2009 petition pursuant to a waiver under People v. Harvey (1979) 25 Cal.3d 754.3

At a disposition hearing on October 26, 2009, the court terminated the prior order for home on probation, and ordered Adrian C. placed in the care of a short-term camp program.   The court kept all previous probation conditions in place, adding conditions that Adrian C. not leave camp without permission and perform up to 128 hours of community service.   The juvenile court gave the maximum period of physical confinement under section 726, subdivision (c) to be three years and 10 months.   The minute order provided:  “The camp P.O. [probation officer] shall compute minor's overall credit for time served.”

Adrian C. filed this timely appeal.

DISCUSSION

I. Insufficient evidence supported the true finding on count 1.

Adrian C. argues that the court erred in failing to dismiss count 1, which alleged that he had disobeyed a court order, the Gang Injunction, in violation of Penal Code section 166, subdivision (a)(4).   Adrian C. argues that there was insufficient evidence that his being out after curfew was willful disobedience of the Gang Injunction, because his violation of his probation condition did not violate the terms of the injunction.

We review the court's denial of Adrian C.'s section 701.1 motion much as we would review a ruling on a motion for acquittal under Penal Code section 1118:  “the trial court is required ‘to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the defendant is “proved beyond a reasonable doubt before [the defendant] is required to put on a defense.” ’ ”  (In re Anthony J. (2004) 117 Cal.App.4th 718, 727.)  “[T]he standard for review of the juvenile court's denial of a [section 701.1] motion to dismiss is whether there is substantial evidence to support the offense charged in the petition.  [Citation.]  In applying the substantial evidence rule, we must ‘assume in favor of [the court's] order the existence of every fact from which the [court] could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person ․ accused of the offense.  [Citations.]  Accordingly, we may not set aside the trial court's denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.’  [Citations.]”  (In re Man J. (1983) 149 Cal.App.3d 475, 482;  In re Andre G. (1989) 210 Cal.App.3d 62, 65 [“A section 701.1 motion is properly reviewed under the substantial evidence standard.”].) The same substantial evidence standard applies to the review of Adrian C.'s renewal of the motion after the close of all the evidence, after the defense put on no witnesses and the prosecution made no further argument.  (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)

Penal Code section 166, subdivision (a)(4) provides that any person in contempt of court for willful disobedience of a court order is guilty of a misdemeanor.   The court order in this case was the Gang Injunction, which enjoined all members of the Pacoima Project Boys gang, and specifically enjoined and restrained gang members within a “Safety Zone,” from “failing to obey all laws” as provided in paragraph g:  “Obey All Laws:  Failing to obey all laws (1) which prohibit violence and threatened violence including murder, rape, robbery by force or fear, assault and battery, (2) which prohibit interference with the property rights of others including trespass, theft, driving or taking a vehicle without the owner's consent, and vandalism, or (3) which prohibit the commission of acts which create a nuisance including the illegal sale of controlled substances and blocking the sidewalk.”   Adrian C. argues that the evidence that he was outside his home after curfew in violation of his conditions of probation was insufficient to support the true finding on the allegation that he disobeyed the Gang Injunction by failing to obey a law enumerated in paragraph g. We agree.

The evidence at trial was that Adrian C. was standing outside between project apartment buildings at 10:30 p.m. A condition of Adrian C.'s probation prohibited him from being outside his house after 9:00 p.m. without parental consent.   His presence outside after 9:00 p.m. was not, however, a failure to obey a law prohibiting “violence and threatened violence.”   Nor was it a failure to obey laws prohibiting “interference with the property rights of others.”   The court dismissed the count charging Adrian C. with possession of the permanent marker with the intent to commit vandalism, because the prosecution had not shown that Adrian C. had the intent to commit vandalism.   Further, there was no evidence that Adrian C.'s standing outside violated a law prohibiting “the commission of acts which create a nuisance.”

Respondent's brief on appeal does not argue that any violation of the curfew term of Adrian C.'s probation, in and of itself, is a failure to obey a law specified in paragraph g of the Gang Injunction.   Instead, respondent argues for the first time on appeal that Adrian C. violated a Los Angeles Municipal Code section which makes a curfew violation a misdemeanor, and that a violation of that municipal code section creates a public nuisance.   We reject out of hand this argument, which “fails to take into account constitutional and statutory requirements of adequate notice.   Since the ․ petition in this case did not allege the theory articulated by the People, the court's order may not be sustained on this basis.”  (In re Babak S., supra, 18 Cal.App.4th at p. 1086.)  “[D]ue process requires that a minor, like an adult, have adequate notice of the charge so he may intelligently prepare his defense.”  (In re Arthur N. (1976) 16 Cal.3d 226, 233, superseded on another ground by statute as stated in In re Eddie M. (2003) 31 Cal.4th 480, 485;  In re Gault (1967) 387 U.S. 1, 33 [87 S.Ct. 1428, 18 L.Ed.2d 527].)   As defense counsel pointed out at the adjudication hearing, Adrian C. “was not even cited or prosecuted whatsoever on curfew,” and the court dismissed the probation violation matter at the disposition hearing.

The juvenile court was required to “determine that the case against the defendant is ‘proved beyond a reasonable doubt before [the defendant] is required to put on a defense.’ ”  (In re Andre G., supra, 210 Cal.App.3d at p. 66.)   In this case, the July 24, 2009 petition did not allege that Adrian C. violated a curfew statute, and so of course the trial court never determined beyond a reasonable doubt that Adrian C. violated any such statute.   The evidence is insufficient to support the trial court's true finding that Adrian C. had disobeyed a court order by failing to obey a law as provided in paragraph g of the Gang Injunction.   We reverse the true finding on count 1.

II. On remand the court must recalculate the maximum period of confinement and compute Adrian C.'s predisposition custody credits.

Adrian C. argues that the court miscalculated his maximum period of confinement, which the court stated was three years and 10 months.   Our reversal of the true finding on count 1 in the July 24, 2009 petition requires the juvenile court to dismiss the finding and recalculate the maximum period of confinement, and so we need not address the parties' arguments relating to the three year and 10 months maximum period.

Adrian C. is correct, and respondent concedes, that the juvenile court erred in ordering the camp probation officer to compute his credit for time served.   “It shall be the duty of the court imposing the sentence to determine ․ the total number of days to be credited․”  (Pen.Code, § 2900.5, subd. (d), italics added.)  “[A] minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing.  [Citations.]  It is the juvenile court's duty to calculate the number of days earned, and the court may not delegate that duty.  [Citations.]”  (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.)   On resentencing, the juvenile court must calculate the proper amount of Adrian C.'s predisposition custody credit.

DISPOSITION

The finding that Adrian C. committed a violation of Penal Code section 166, subdivision (a)(4) is reversed.   The matter is remanded to the juvenile court with directions to dismiss that finding and, accordingly, to recalculate Adrian C.'s maximum period of confinement.   On remand the juvenile court is further ordered to calculate the amount of Adrian C.'s predisposition custody credit.   In all other respects, the orders under review are affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

1.  FN1. All further statutory references, unless otherwise indicated, are to the Welfare and Institutions Code.

2.  FN2. The July 24, 2009 and August 11, 2009 petitions did not allege a probation violation.   Adrian C.'s presence outside after 9:00 p.m. on June 5, 2009, was not the subject of a section 777 probation violation notice.   On August 12, 2009, Adrian C.'s probation officer filed a section 777 notice of violation and probation report, alleging that Adrian C had committed numerous violations of various probation conditions, including that generally “he is in violation of his curfew.”   The court dismissed the section 777 matter at the disposition hearing on October 26, 2009.

3.  FN3. “The phrase ‘Harvey waiver’ means the [minor] has agreed that the court may consider facts behind dismissed or uncharged counts” in determining the proper placement and terms of the disposition.  (In re Josh W. (1997) 55 Cal.App.4th 1, 4, fn. 2.)

JOHNSON, J.

MALLANO, P. J.ROTHSCHILD, J.

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