Opinion
G037221
5-24-2007
In re MATTHEW L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MATTHEW L., Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
The juvenile court continued Matthew L. as a ward of the court under Welfare and Institutions Code section 602 after finding he possessed a deadly weapon of a type commonly known as a bat (Pen. Code, § 12020, subd. (a)(1)) and committed assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The court ordered Matthews prior probation conditions to remain in effect, imposed new conditions, and committed him to juvenile hall for 60 days with credit for 35 days served. On appeal Matthew challenges the sufficiency of the evidence and the breadth and specificity of certain of his probation conditions. We modify the challenged probation conditions, but in all other respects we affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
Almost nine months earlier the juvenile court had declared Matthew a ward of the court (when Matthew admitted committing battery on school property (§ 243.2, subd. (a)(1)) and placed him on probation with conditions.
FACTS
As twin brothers Alex and David walked home from high school on May 10, 2006, a car stopped nearby and four men, including Matthew, alighted. Matthew ran toward David, asking where David was from and saying, "This is D.F.J.," a reference to the Dragon Family Jr. gang. Matthew punched Davids left cheek. David and Matthew "started fighting" with Matthew continuing to hit David. At some point Matthew backed up, whereupon two or three of his companions attacked David. Alex joined the fight to help his brother. David fell to the ground and "kicked upward," spurring his attackers to back up and return to their car. Matthew pulled an object from the car, held it above (or next to) his head with his right hand, and said, "Whats up?" (which David interpreted to mean, "Do you want some more?"). With the object in his hand, Matthew approached the brothers. Alex and David ran away into a residential area. A few seconds later, the car appeared and stopped in front of the brothers. Matthew emerged from the car and chased Alex and David, who escaped into a backyard.
DISCUSSION
Substantial Evidence Showed Matthew Possessed a Deadly Weapon
Matthew contends the evidence was insufficient to show he possessed a deadly weapon since the brothers were unable to describe the object he held. Because Matthew challenges the sufficiency of the evidence, we "must 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.)
Section 12020, subdivision (a)(1) prohibits a person from, inter alia, possessing any "instrument or weapon of the kind commonly known as a . . . billy . . . ." The jurisdictional petition alleged Matthew possessed a "weapon of the kind commonly known as a BAT."
At trial Alex could not describe the object held by Matthew, except to say it was "thin." But he told an officer on the day of the incident the object was a bat or machete. Similarly, David could not describe the object at trial except to say it was a dark color and "longer than a pen," but told the police soon after the assault the object was a small black or dark blue bat. The brothers testified at trial the incident was clearer and fresher in their minds on the day it happened. Both Alex and David have "relatively poor" vision, and neither was wearing glasses on the day of the attack.
The court found Matthew carried an object as a weapon. Although the court doubted "either Alex or David could see it clearly" due to poor vision, the court believed "they were able to see enough to be able to relate to the officer that [Matthew] had something in his hand that they construed as a weapon by shape or size or length, enough so that they were afraid, and afraid enough to run, even though he did not specifically begin to approach them." We must therefore determine whether substantial evidence supports the courts implied finding Matthew carried a weapon of the type known as a billy or bat.
In People v. Grubb (1965) 63 Cal.2d 614 (Grubb), the defendant was convicted of possessing a "billy," consisting of a baseball bat with a broken handle. (Grubb, at pp. 615-616.) The defendant claimed section 12020 was unconstitutionally vague because "the term `billy encompasses such ordinary objects as an orthodox baseball bat, a table leg, or a piece of lumber . . . , all of [which] could be used as weapons of physical violence." (Grubb, at pp. 619-620, fn. omitted.) Our Supreme Court upheld the statute. (Id. at pp. 617-618.) The court found the Legislature meant to outlaw "possession of the sometimes-useful object when the attendant circumstances, including the time, place, destination of the possessor . . . and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose." (Id. at pp. 620-621, fn. omitted.) Thus, possession of an "innocent-appearing utensil" or other "ordinarily harmless objects" is criminal "when the circumstances of possession demonstrate an immediate atmosphere of danger," such as when a table leg "is detached from the table and carried at night in a `tough neighborhood to the scene of a riot." (Id. at p. 621.) "Applying this test [the court found] the possession of the altered baseball bat . . . carried about in the car, obviously usable as a `billy, clearly not transported for the purpose of playing baseball, violates the statute." (Ibid.)
Here, substantial evidence showed Matthew possessed a bat for a dangerous purpose. The victims described the object as a bat on the day of the incident when the events were fresh in their minds. Matthew created an atmosphere of danger by displaying the object immediately after the attack on David and saying "Whats up?" in a manner suggesting a challenge. The brothers reacted by running into a residential neighborhood to avoid "get[ting] hit" and into a backyard where they told the homeowner "they got beat up with a bat." Thus, substantial evidence supported the courts finding Matthew possessed a weapon of the kind commonly known as a billy or bat.
Substantial Evidence Showed Matthew Assaulted the Victims with Sufficient Force
Matthew contends the evidence was insufficient to show he assaulted David with force likely to produce great bodily injury because he (Matthew) is "five feet, four inches short, only used his fists in the fight and seemed to have lost."
The jurisdictional petition alleged Matthew violated section 245, subdivision (a)(1) by assaulting David with force likely to produce great bodily injury. The court found Matthew "began it through the first punch" and that two other occupants of the car were prepared to back Matthew up and "would have continued to use force likely to produce great bodily injury."
The courts implied finding that Matthew used force likely to produce great bodily injury is supported by substantial evidence. David testified Matthew threw the first punch with his fist and continued to hit David. It is immaterial that Matthew was short, may have lost the fight, and only used his fists. "[I]t is thoroughly settled that an assault by means of force likely to produce great bodily injury may be made by the use of hands or fists." (People v. Buice (1964) 230 Cal.App.2d 324, 345.) A person may commit aggravated assault "without making actual physical contact with the person of the victim" and "whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
Matthew contrasts his case with People v. Hopkins (1978) 78 Cal.App.3d 316, where an appellate court affirmed the defendants conviction of assault by means of force likely to produce great bodily injury. (Id. at pp. 318, 321.) The appellate court found the trial courts failure to instruct the jury on the meaning of "`great bodily harm" was not a prejudicial error (if an error at all) since the evidence showed the "defendant and his companion knocked the victim to the ground and then proceeded to beat and kick him in the head until the police arrived. The victim was hit at least eight times in the front and back of his head." (Id. at p. 321.) The Hopkins court, however, did not purport to define the term "`great bodily harm," but rather concluded the force used by the defendant there was clearly likely to cause such harm: "The force used against the victim under these circumstances can only be categorized as a force likely to cause serious bodily harm." (Ibid., italics added.)
"[T]he kind of assault likely to produce great bodily injury is generally a question of fact for the jury." (People v. Buice, supra, 230 Cal.App.2d at p. 345.) Here, substantial evidence showed Matthew struck David with his fist and therefore supported the courts finding Matthew assaulted David with force likely to produce great bodily injury.
Certain Probation Conditions Must Be Modified
Matthew contends certain of his probation conditions are unconstitutionally vague and overbroad, and the Attorney General agrees. Although Matthew failed to object in the juvenile court to the imposition of these conditions, he may raise his constitutional claims here. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) The asserted errors are "`pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court" (id. at p. 889), and are "easily remediable on appeal by modification of the condition." (Id. at p. 888.)
The condition prohibiting Matthew from associating with people he knows to be "gang members/associates, users/sellers of narcotics/controlled substances," must be modified to define a criminal street gang and to encompass sellers or users of only illegal narcotics or illegal controlled substances. (People v. Lopez (1998) 66 Cal.App.4th 615, 628-629, 634; see also People v. Garcia (1993) 19 Cal.App.4th 97, 101-102.) The condition barring Matthews association with the Dragon Family Jr. must also be modified to include a knowledge element. (People v. Lopez, at pp. 628-629.)
DISPOSITION
The condition in the June 20, 2006 minute order prohibiting Matthew from associating with the Dragon Family Jr. is modified to read as follows: "Minor is not to associate with any person he knows to be a member of the Dragon Family Jr." The condition in the September 9, 2005 minute order (and ordered to remain in effect by the June 20, 2006 order), prohibiting Matthew from associating with persons he knows to be "gang members/associates, users/sellers of narcotics/ controlled substances," is modified to read as follows: "Minor is not to associate with any person he knows to be a user or seller of illegal narcotics or illegal controlled substances, or with any person he knows to be a gang member. For purposes of this paragraph, the word gang means a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f). This paragraph does not prohibit Minor from associating with Long L., his cousin and co-minor in the September 9, 2005 proceeding, during family gatherings."
In all other respects, the judgment is affirmed.
We Concur:
OLEARY, Acting P. J.
ARONSON, J.