Opinion
B190019
4-27-2007
In re MIGUEL L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MIGUEL L., Defendant and Appellant.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Appellant Miguel L., a minor, appeals from an order of the juvenile court in which he was found to be a ward of the court as described in Welfare and Institutions Code section 602. He was charged with a violation of Penal Code section 245, subdivision (a)(1), assault with a deadly weapon, and section 594, subdivision (a), vandalism with over $400 in damage. At the adjudication hearing, the juvenile court found the allegations of the petition to be true.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was ordered into a Camp Community Placement Program for a period of six months. On appeal, appellant contends that the juvenile court misapplied the law concerning his self-defense claim, there was insufficient evidence to support the true finding of felony vandalism, the juvenile court failed to declare explicitly whether the vandalism offense was a felony or a misdemeanor, and a probation condition was unconstitutional. We agree that there was insufficient evidence to support the vandalism offense as a felony and the probation condition was vague. In all other respects, we find no grounds for reversal and affirm the order.
FACTS
A. Prosecution
On February 26, 2006, Amanda Fabela (Fabela) had dated appellant and lived with him and his parents for approximately one year. Fabela ended the relationship and moved out of appellants home. The next morning, appellant went to Fabelas new home, a home she shared with her new boyfriend, Billy Dacuna (Dacuna), and his family. Appellant went to the location to return a cellular phone and to try and convince her not to end their relationship.
When appellant arrived at Dacunas home, he exchanged words with Fabela and Dacuna. After Dacuna told appellant to leave, appellant scratched the front, passenger and drivers side doors of the car parked in front of Dacunas house. The car did not belong to Dacuna, but to Dacunas neighbor, Robert Caceres (Caceres). After his car was vandalized, Caceres went outside and people pointed at appellant, who was walking down the street. When Caceres saw the damage to his car, he got into his wifes jeep and drove after appellant. After chasing appellant in the car, Caceres parked the car, and chased him on foot.
Caceres was angry and might have said something to appellant but he did not remember making any specific threats to appellant. Caceres denied ever touching appellant or pushing him to the ground. At one point, appellant appeared to try to hit Caceres, but instead, stabbed him in the arm with a knife. The wound to Caceres arm required 35 stitches and a three-day hospital stay.
B. Defense
Appellant testified in his own behalf. Appellant, 16, had dated Fabela, 21, for approximately a year. On February 26, 2006, Fabela terminated their relationship. On February 27, 2006, appellant went to Fabelas house because he had her cellular phone. Fabelas new boyfriend, Dacuna, was angry and told appellant to leave. Appellant did not say anything back to him.
As appellant was leaving, he noticed a white car parked in front of the house. He thought it was Dacunas, so he scratched it as he left. He noticed Caceres was following him in a car. The car almost hit him. Caceres got out of the car and started chasing appellant. Caceres told him, "I dont know what youre running for, Im still going to get you." Appellant was afraid. Caceres also stated, "Im going to beat you up" and "I know how you look; youre dead." Caceres caught up to appellant and swung at him. Appellant never saw a weapon in Caceres hand, but he was afraid and believed Caceres could be armed and was threatening his life. In response to the threat, appellant took out a knife he carried for work and stabbed Caceres.
DISCUSSION
A. Self-Defense Argument
Appellant contends the juvenile court misapplied the law concerning his self-defense claim. We disagree.
The juvenile courts analysis of the assault charge was as follows: "Now [appellant is] chased down and over fences in areas thats not home to him, but he went to it. He went to it trying to see if he can make up and bring her back to him. Unsuccessful, frustrated, angry. And now hes chased down by another young man; hes an adult, but hes still a young man. Hes frustrated, angry. But using a knife on another person who doesnt show other than his strength—whatever that strength was—to slash at him—because it looked like a slash in the photo, its just not permitted."
The juvenile court correctly stated that appellant was not entitled to use a knife in self-defense when Caceres only displayed his strength. Self-defense requires an actual and reasonable belief in the need to defend against an imminent danger of death or great bodily harm. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) There must be evidence from which the trier of fact could find that appellant actually had such a belief. (People v. De Leon (1992) 10 Cal.App.4th 815, 824.)
The juvenile court, as the trier of fact, determines the credibility of the witnesses. Caceres testified that he chased appellant, was able to catch up to him, and attempted to hold him down. Appellant testified that he never saw Caceres with a knife, gun, or any other type of weapon. Caceres testified that he did not strike appellant at any time. It was reasonable for the juvenile court to find that Caceres had not struck appellant, there was no threat of "imminent" harm to appellant and appellants actions were not reasonable under the circumstances. Even if Caceres had struck appellant, appellant was not permitted to use a knife to stop Caceres alleged attack with his fists.
In People v. Clark (1982) 130 Cal.App.3d 371, the defendant was prosecuted for a homicide which occurred when he was confronted by the husband of the woman with whom he had had a two-year extramarital affair. The defendant asserted self-defense and introduced evidence of the victims violent behavior. The Court of Appeal held that the evidence did not establish, as a matter of law, that the defendant acted in self-defense. Even though it was clear that the victim intended to assault the defendant, the evidence did not show that the defendants resort to deadly force was necessary or appeared necessary at the time. There was no evidence that the victim was armed at the time of the homicide, and deadly force may only be used to repel an attack which in itself is deadly or likely to cause great bodily injury. (Id. at p. 380.)
Clark was abrogated on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 92.
As in Clark, there is no evidence that the victim was armed or that he engaged in a deadly attack on appellant. The juvenile courts determination that appellant did not act in self-defense thus is correct and supported by the evidence.
B. Felony Vandalism
Appellant contends the evidence was not sufficient to establish felony vandalism. We agree.
The evidence presented established that Caceres car was scratched on three sides with a knife. While the juvenile court examined photographs of Caceres car, there was no evidence presented as to the cost of repair needed to put the vehicle back in the condition it was in before appellants vandalism. The People argue that the scratches were deep enough that Fabela was able to see the scratches from her residence. However, there was no evidence presented regarding the distance between the front of her residence and Caceres car. Based upon the lack of evidence, the offense should be reduced to misdemeanor vandalism. Where the prejudicial error goes only to the degree of the offense, the appellate court may reduce a conviction to a lesser degree and affirm the judgment or order as modified. (People v. Alexander (1983) 140 Cal.App.3d 647, 666, disapproved on another ground in People v. Swain (1996) 12 Cal.4th 593, 602, 605.)
C. Welfare and Institutions Code section 702
Appellant contends the juvenile court failed to declare explicitly appellants "wobbler" offense to be a misdemeanor or a felony. The People concur. Section 594, subdivision (b), when committed by an adult, can be treated as either a felony or misdemeanor. When a minor commits vandalism, Welfare and Institutions Code section 702 requires the juvenile court to "declare the offense to be a misdemeanor or felony." (See also Cal. Rules of Court, rule 1493(a)(1).) This was not done. However, based upon our finding as to the insufficiency of the evidence to support felony vandalism, this issue is moot.
D. Imposition of Probation Condition
Appellant contends that probation condition No. 16 is unconstitutionally vague and overbroad. We agree. The condition in question prohibited him from being in the presence of any unlawfully armed person.
The People argue that appellant has waived any objection to the probation condition by failing to raise the objection in juvenile court. The recent case of In re Sheena K. (2007) 40 Cal.4th 875 holds that a minor does not forfeit his objection by failure to raise it in juvenile court.
The issue in a vagueness challenge is the due process concept of "fair warning." (People v. Castenada (2000) 23 Cal.4th 743, 751.) A probation condition is vague if it lacks a knowledge requirement. (In re Sheena K., supra, 40 Cal.4th at p. 891.) While it is certainly appropriate to order appellant to not associate with an unlawfully armed person, appellant must have knowledge that the person is unlawfully armed. As the condition is worded, appellant could be in violation of probation by simply associating with a person he does not know is armed. Even if he knew that an individual was armed, the probation condition is unclear how minor would know if the possession was illegal. For instance, section 12021, subdivision (a)(1), prohibits any person convicted of a felony to be in possession of a firearm. Appellant would be in violation of probation if he associated with an armed felon, even if he was unaware of his associates past. We agree with appellant that in the absence of an express requirement of knowledge, the probation condition imposed is unconstitutionally vague. (In re Sheena K., supra, at p. 891.)
In view of our conclusion, it is unnecessary to decide whether the probation condition is also unconstitutionally overbroad.
We have the power to modify a probation condition to render the condition constitutional. (See, e.g., In re Justin S. (2001) 93 Cal.App.4th 811, 816 [probation condition modified to forbid the minors association "`with any person known to you to be a gang member"]; People v. Garcia (1993) 19 Cal.App.4th 97, 103 [court modified condition prohibiting defendant from associating with drug users or seller, or felons or ex-felons to those persons known to defendant to be such].) Probation condition No. 16 is modified to require the element of knowledge, prohibiting contact with people appellant knows to be "unlawfully armed."
DISPOSITION
Appellants violation of section 594 is reduced from a felony to a misdemeanor. Probation condition No. 16 is modified to require the element of knowledge, prohibiting contact with people appellant knows to be "unlawfully armed." The order is affirmed as modified. The matter is remanded to the juvenile court with directions to recalculate appellants maximum confinement time in light of the reduction of his section 594 violation to a misdemeanor.
We Concur:
MALLANO, Acting P. J.
VOGEL, J.