Opinion
A153466
10-23-2018
In re A.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00279)
The minor A.W. appeals from the judgment of the juvenile court adjudicating her to be a ward of the court pursuant to Welfare and Institutions Code section 602. She contends that the court's finding that she violated Penal Code section 243.2, subdivision (a) is not supported by substantial evidence, that the court was not authorized to prohibit her from owning or possessing a gun until age 30, and that the probation condition that she not associate with anyone known to be disapproved by her parent, guardians or probation is unconstitutionally vague and must be modified to specify "known by you." We find no merit to any of these contentions and shall affirm the judgment.
Background
On November 8, 2016, A.W., a 16-year-old student at a different high school, became engaged in an altercation with a student of Antioch High School on the Antioch High School campus. When Vice-Principal Jarrod Bordi placed the other student in a bear hug in an attempt to stop the fighting, he was twice struck in the back by, according to Bordi and a safety officer who restrained her, A.W. The petition under Welfare and Institutions Code section 602 alleged, and the juvenile court found, that A.W. had committed a violation of Penal Code section 243.2, battery on school property. After a contested evidentiary hearing the court sustained the petition, ordered wardship without a termination date, and placed A.W. on home supervision for 60 days. Pursuant to section 29820, the court prohibited A.W. from owning or possessing a firearm until age 30. And among the conditions of A.W.'s probation is that there "be no association with anyone known to be disapproved of by her parents or guardians or probation." A.W. has timely appealed.
All subsequent statutory references are to the Penal Code.
Discussion
1. Substantial evidence
Both Bordi and the safety officer identified A.W. as the person who struck Bordi. A.W. contends that the testimony of neither witness is credible—Bordi's testimony because he failed to identify her in a photograph and her hair color differed from what he recalled, and the safety officer's testimony because he had previously indicated he could not identify the assailant and identified her for the first time in the courtroom. While these factors might have influenced the trier of fact to question the testimony of the two eyewitnesses, they provide no basis for this court to disregard or second guess the trial court's evaluation of their testimony. The testimony of a single witness may be sufficient to uphold the trial court's finding (People v. Reed (2018) 4 Cal.5th 989, 1006) and it is not the function of this court to reweigh the evidence (People v. Mohamed (2011) 201 Cal.App.4th 515, 521). Both witnesses viewed the assailant at short range; their testimony was not inherently incredible and provides substantial evidence to support the court's finding.
A.W. contends that section 29820 does not authorize the court to prohibit her possession and ownership of a firearm until the age of 30 for the violation of section 243.2. Section 29820, subdivisions (a) and (b) requires the court to prohibit the ownership or possession of a firearm until the age of 30 by a person "adjudged a ward of the juvenile court . . . because the person committed . . . any offense enumerated in Section 29805." Section 29805 lists section 242 among the offenses for which it prescribes punishment. While section 29805 does not explicitly refer to section 243.2, it was held in In re David S. (2005) 133 Cal.App.4th 1160, 1165 that the reference to section 242 in what was then section 12021, since renumbered section 29805, encompasses the entire "section '243.x' series." (133 Cal.App.4th at p. 1165.) Section 242 defines battery, while section 243 provides the punishment for a battery, and the "section 243.x" series provides greater punishments for particular batteries: In re David S. involved a violation of section 243.6, battery against a school employee, while the present case involves a violation of section 243.2, battery on school, park or hospital property. As the court reasoned in David S., "The fact these batteries were committed on a particular victim or in a particular site does not make them any less a battery. Conviction of any of the section '243.x' series necessarily requires proof of section 242; 'willful and unlawful use of force or violence upon the person of another.' To read [now section 29805] as not imposing the firearm ban on people convicted of the section '243.x' series because the series of misdemeanors is not specifically enumerated in [now section 29805] would thwart the clear legislative intent that anyone convicted of misdemeanor battery shall be banned from owning or possessing a firearm for a designated period of time." (133 Cal.App.4th at p. 1165.) Since the potential sentence for the violation of section 243.2 is greater than for the violation of section 242, one year rather than six months, it is illogical to suppose the gun restriction was intended to apply to persons committing the lesser offense but not the greater offense.
A.W. points out that subsequent to the decision in In re David S., supra, 133 Cal.App.4th 1160, a 2008 statute adding various sentencing enhancements for sexual offenses against children amended section 29805 by adding a specific reference to section 243.4, sexual battery, to the list of offenses to which section 29805 applies. (Stats. 2008, ch. 599, § 4.) A.W. argues that the specific inclusion of section 243.4 indicates that the Legislature does not intend that section 29805 apply to other unspecified sections within the section "243.x" series. However, in the absence of any indication in the legislative history that there was any intention to overrule In re David S., and of any logical explanation why the Legislature would want the gun proscription to apply to the lesser but not the more serious offense, we adhere to the reasoning and the conclusion in In re David S.. The juvenile court here properly imposed the firearm restriction upon finding that A.W. violated section 243.2.
3. Probation Condition
Finally, A.W. challenges as unconstitutionally vague the probation condition, "No association with anyone known to be disapproved by her parents or guardians or probation." She argues that this condition is vague because it does not state explicitly that it is she who must know that the persons with whom she may not associate are disapproved by her parents, guardians or probation. But the fact that it is she who must know is implicit. (People v. Hall (2017) 2 Cal.5th 494, 501.) Unlike the probation condition in In re Sheena K. (2007) 40 Cal.4th 875, 891-892 ["anyone disapproved of by probation"], the challenged probation condition here has been upheld; it is implicit that the disapproval must be known to the probationer. "In [In re] Byron B. [(2004)] 119 Cal.App.4th [1013,] 1018, the appellate court rejected the minor's challenge, on the ground of vagueness, 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 "[n]ot have direct or indirect contact with anyone known to be disapproved by parent(s)/guardian(s)/probation officer, staff." ' (Id. at p. 1015, italics omitted.)" (In re Sheena K., supra, at p. 891.) While the additional words "by you" might have been included, the absence of those words does not render the condition too vague to understand or to require remand for insertion. The conditions in the two cases cited by A.W., In re H.C. (2009) 175 Cal.App.4th 1067 and In re Vincent G. (2008) 162 Cal.App.4th 238, were different, referring to known gang members or persons on probation or parole and, in all events, do not compel a different result in light of the Supreme Court's subsequent decision in People v. Hall.
Disposition
The judgment is affirmed.
Pollak, Acting P.J. We concur: Jenkins, J.
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.