In re Ryan P. CA1/2 ( 2013 )

Filed 8/27/13 In re Ryan P. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re RYAN P., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A135485
RYAN P.,
(Sonoma County
Defendant and Appellant. Super. Ct. No. SJ09122675)
Ryan P. appeals from the order continuing his status as a ward of the juvenile
court. He contends that one of the two allegations sustained by the court is not supported
by substantial evidence. We conclude this contention is without merit. He also contends
that four of the terms of his probation are constitutionally defective as overbroad or too
vague. We agree in part, and also agree with the Attorney General that the infirmities are
correctable. Thus, we will affirm the dispositional order as it includes modifications to
be made by the juvenile court.
Substantial Evidence
This is the latest in a series of wardship proceedings going back to 2008 in a
different county. Here, the juvenile court sustained allegations of a subsequent petition in
which it was alleged that Ryan had committed robbery, and evaded pursuing police while
driving against the flow of traffic. Ryan presents no challenge to the more serious
1
robbery count, but he does claim that the lesser count does not have the support of
substantial evidence.
Ryan was found to have committed what, if he were an adult, would constitute a
violation of Vehicle Code section 2800.4, which in pertinent part provides: “Whenever a
person willfully flees or attempts to elude a pursuing peace officer in violation of Section
2800.1, and the person operating the pursued vehicle willfully drives that vehicle on a
highway in a direction opposite to that in which the traffic lawfully moves upon that
highway, the person upon conviction is punishable by imprisonment for not less than six
months nor more than one year in a county jail or by imprisonment in the state prison
. . . .” The referenced section 2800.1 makes it a misdemeanor for any driver to “willfully
flee[ ] or otherwise attempt[ ] to elude a pursuing peace officer’s motor vehicle” with an
“intent to evade.” (Veh. Code, §2800.1, subd. (a).) Ryan insists there is no substantial
evidence that it was he who was “operating the pursued vehicle . . . in a direction
opposite to that in which the traffic lawfully moves.”
Our review of the juvenile court’s decision is governed by the same standards
applicable to adult convictions. (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.)
And those standards maximize deference to the trier of fact, which in this case was a very
experienced juvenile court commissioner. “To assess the evidence’s sufficiency, we
review the whole record to determine whether any rational trier of fact could have found
the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] . . . In
applying the test, we review the evidence in the light most favorable to the prosecution
and presume in support of the judgment the existence of every fact the [trier of fact]
could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge . . . to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination depends. . . .’
[Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support” the [trier
of fact’s decision.] [Citation.] [¶] The same standard governs in cases where the
2
prosecution relies primarily on circumstantial evidence. [Citation.]” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
The record shows that less than two hours after stealing a car from the robbery
victim in Oakland, Ryan and his accomplice, Julius W., were speeding in it on the streets
of Oakland when they were spotted by California Highway Patrol Officer Bradford.
After observing the car go past a stop sign without slowing, Bradford followed. Once the
requested back-up arrived, the two units activated their lights and sirens and gave chase.
Bradford learned from his radio dispatcher that the vehicle had been car-jacked.
Bradford testified what ensued: “So we continued . . . . southbound on Embarcadero, and
it’s just a one-lane each direction, and it [the suspect vehicle] accelerated to about
65 miles per hour. And it’s kind of a windy road . . . . And it [the suspect vehicle] just
had crossed--there was a double yellow line that breaks up the northbound and
southbound lane[s], and it just was pretty much just driving southbound on Embarcadero
crossing that line as there was turns in the roadway.” After being joined by a third unit,
Bradford observed the suspect vehicle “went northbound on Kennedy . . . . And then it
went on—the wrong way on the 23rd Avenue off-ramp” to Interstate 880. Asked “how
do you know that’s [sic] . . . an off-ramp there on 880?”, Bradford answered, “Well,
there’s signs . . . that say ‘wrong way.’ ” (This was corroborated by photographs shown
to Bradford.) Asked, “Did you physically see the [suspect vehicle] go onto the 880?”
Bradford responded, “Yes, I did.” And then “we kind of all turned off our lights at the
same time because we don’t chase vehicles on the freeway [going] in the wrong
direction.” The suspect vehicle traveled seven-tenths of a mile before it stopped. Its
occupants fled on foot, and were eventually apprehended. Bradford was unable to
determine who was driving the suspect vehicle.
After he was taken into custody, Ryan gave a statement to California Highway
Patrol Officer Hartman. According to Ryan, it was Julius who did the driving, although
at one point, after the chase began, “he told me to hold the steering wheel while he drive.
So I’m holding the steering wheel.”
3
The Attorney General concedes the evidence does not establish Ryan as the actual
driver at the time Vehicle Code section 2800.4 was violated, but is sufficient to establish
Ryan as an aider and abettor of Julius. We think so too.
The crucial predicate is the nature of the count that Ryan does not challenge—the
robbery. One of the special consequences of this offense is that it is held to continue past
the point at which property is actually taken from another by force or fear. Specifically,
the crime of robbery extends through flight or until such time as the robbers have reached
a place of temporary safety. (See People v. Cavitt (2004) 33 Cal.4th 187, 208.) In this
context, the extension obviously encompasses attempted escape or evading capture.
(E.g., People v. Laursen (1972) 8 Cal.3d 192, 199-200; People v. Haynes (1998)
61 Cal.App.4th 1282, 1294; People v. Miles (1969) 272 Cal.App.2d 212, 217-218;
People v. Servillo (1962) 207 Cal.App.2d 296, 299.)
“ ‘A person who knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the intended
crime. The latter question is not whether the aider and abettor actually foresaw the
additional crime, but whether, judged objectively, it was reasonably foreseeable.
[Citations.] Liability under the natural and probable consequences doctrine ‘is measured
by whether a reasonable person in the defendant’s position would have or should have
known that the charged offense was a reasonably foreseeable consequence of the act
aided and abetted.’ [Citation.]
“ ‘[A]lthough variations in phrasing are found in decisions addressing the
doctrine—“probable and natural,” “natural and reasonable,” and “reasonably
foreseeable”—the ultimate factual question is one of foreseeability.’ [Citation.] Thus,
‘ “[a] natural and probable consequence is a foreseeable consequence”. . . .’ [Citation.]
But ‘to be reasonably foreseeable “[t]he consequence need not have been a strong
probability; a possible consequence which might reasonably have been contemplated is
enough. . . .” [Citation.]’ [Citation.] A reasonably foreseeable consequence is to be
evaluated under all the factual circumstances of the individual case [citation] and is a
4
factual issue to be resolved by the jury. [Citations.]” (People v. Medina (2009)
46 Cal.4th 913, 920.)
It should be remembered that Ryan participated in the robbery, and that among the
property taken from the robbery victim was the vehicle in which Ryan and Julius were
riding. The experienced commissioner, sitting as the trier of fact, could determine that
Ryan had so acted with the knowledge of the robbery and the intent to facilitate it by
assisting Julius to transport the stolen property to safety when they were spotted by
Bradford. (See People v. Houston (2012) 54 Cal.4th 1186, 1224; People v. Beeman
(1984) 35 Cal.3d 547, 560.) As an aider and abettor to the robbery, Ryan became and
aider and abettor to reasonable foreseeable consequences of the ensuing flight from the
officers following the stolen vehicle. Whether such a consequence involved a violation
of Vehicle Code section 2800.4 and whether Ryan’s assisting Julius in steering the stolen
vehicle during the chase constituted aiding and abetting of that second offense, were
matters for the commissioner’s determination. (People v. Medina, supra, 46 Cal.4th 913,
920; People v. Zamudio, supra, 43 Cal.4th 327, 357.) Moreover, in light of Ryan’s past
history, his claim of complete lack of knowledge and noninvolvement with Julius’s
criminal acts did not necessary command credulity. The evidence is not overwhelming,
but we cannot conclude as a matter of law that it is insufficient.
The Probation Conditions
At the hearing conducted on May 7, 2012, the juvenile court stated its disposition
as follows:
“[T]he placement order is continued . . . . All previously ordered terms and
conditions of probation to continue, including drug and search.
“He’s not to drive unless licensed and insured, or be in anyone’s care unless
invited by the owner.
“Not to associate with Julius [W.]. Not to have any contact with the [robbery]
victim, Mr. Alazzani. [¶] . . .[¶]
“One last thing, Ryan.. You’re not to be in any criminal street gang, or associate
with anyone you know is a member of a criminal street gang or should reasonably know
5
is a member of a criminal street gang. You are not to wear any gang clothing, colors, or
emblems, or get any tattoos or piercings, and not possess any burglary tools or graffiti
materials.”
Ryan attacks four of these conditions as impermissibly vague and/or overbroad,
thus allowing review of them even though he did not object when the conditions were
imposed. (See In re Sheena K. (2007) 40 Cal.4th 875, 887-889.) Specifically, Ryan
argues that the prohibitions on gang clothing, gang emblems, burglary tools, and graffiti
materials transgress constitutional limits because they do not include a requirement that
Ryan have knowledge of their criminal nature or their association with criminal street
gangs. The Attorney General largely agrees that this argument is sound (see People v.
Leon (2010) 181 Cal.App.4th 943, 951), but asserts that any problem can be cured by
modifying the conditions to impose a knowledge requirement. Ryan is agreeable to
modification by this court.
Ryan then claims the same problem also infects the no-association condition.
Here, he is objecting not to the court’s orally-pronounced conditions quoted above, but
the condition that appears in the court’s minutes: “Minor is not to be a member of, or
associate with, any person the child knows, or should reasonably know, to be a member
or to be involved in the activities of a criminal street gang.” Ryan insists that the addition
of the word “activities” introduces a degree of ambiguity and vagueness not present in
what the court actually said.
It is unfortunate that there are discrepancies between the reporter’s and the clerk’s
transcripts. These are almost certainly the result of a momentary lapse or inattention by
an experienced bench officer who is undoubtedly aware of constitutional limitations
when it comes to framing conditions of probation. It is this experience that we are certain
explains why the minutes reflect a knowledge requirement in the no-association condition
quoted in the preceding paragraph. And why the graffiti condition as expressed in the
minutes—“Minor is not to possess any graffiti materials, or graffiti-related paraphernalia,
including but not limited to spray paint, paint or ink markers, metal scribers, aerosol
nozzles, or other material used to deface property”—seems perfectly adequate.
6
Ryan and the Attorney General go back and forth quoting rules of construction as
to whether the oral or the minutes versions of the conditions shall prevail. It is important
to remember that the important function of either version is to provide notice to Ryan of
what he is prohibited from doing. It seems a matter of common sense that a teenager is
less likely to remember words spoken a year ago. And at this stage, we wonder how
modifications of oral pronouncements are to be made, or communicated to Ryan, if not in
written form. Accordingly, we believe the modifications should be made by the juvenile
court in light of the views expressed here, assisted by the court’s considerable experience.
A copy of the revised conditions of probation must then be provided to Ryan.
DISPOSITION
The dispositional order is modified to provide for a revised expression by the
juvenile court of the conditions of probation. As so modified, the order is affirmed.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
7