In re Victor M. CA5

Filed 10/6/15 In re Victor M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

In re VICTOR M., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE, F070118

Plaintiff and Respondent, (Super. Ct. No. JJD065574)

v.
OPINION
VICTOR M.,

Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Smith, J.
 The court found that appellant Victor M. was a person described in Welfare and
Institutions Code section 602 after it sustained allegations charging appellant with two
misdemeanors, sexual battery (Pen. Code, § 243.4, subd. (e)(1))1 and simple battery
(§ 242).
On appeal, appellant contends: (1) the evidence is insufficient to sustain the
court’s findings that he committed either of these offenses; and (2) the gang conditions
imposed by the court are unconstitutionally vague and overbroad. We affirm.
FACTS
On March 5, 2014, L.M. was a high school student in Visalia, California. At
approximately 7:45 a.m., that day, she was riding a transit bus to school seated in a rear
seat with G.R and appellant seated behind them. As L.M. played around with G.R. she
heard appellant make disparaging remarks about her, including calling her a slut and
other derogatory names. L.M. got mad and turned around. After G.R. said something to
appellant, G.R. got up and left. When L.M. turned back around, appellant was sitting
next to her. Appellant then put his arm on L.M.’s shoulders and squeezed her left breast.
L.M. grabbed appellant’s glasses and threw them. She then told him if he did not move
she was going to hit him, but he did not move. L.M. started swinging at appellant and
struck him on the face with her fist. Appellant put L.M. in a headlock and pushed her
down. L.M. kept telling appellant to get off and kept hitting him until he let go. After
appellant pushed L.M. into the aisle, “Josh” got between her and appellant and L.M. felt
one last slap to her face. Appellant got off the bus at the next stop.
Visalia Police Detective Celestina Sanchez testified that on March 18, 2014, she
spoke with appellant about the incident on the bus. Appellant told Detective Sanchez that
L.M. frequently flirts with other males and he admitted calling her names like “slut.”
According to appellant, after he sat next to L.M., he put his arm on an armrest behind

1 All further statutory references are to the Penal Code unless otherwise indicated.

2.
L.M. and she immediately bit him on his chest, near his underarm, and on his arm.
Appellant placed L.M. in a headlock because she would not stop biting him, which
caused her to fall into the aisle. As they continued fighting, L.M. slapped appellant
causing his glasses to fall off and break. After they stopped fighting, appellant got off at
the next bus stop because he felt humiliated. According to appellant, all he did was call
L.M. names and defend himself from her. He denied touching her breast. Detective
Sanchez saw very slight bruising where appellant said L.M. bit him.
During closing arguments, the prosecutor argued appellant was guilty of sexual
battery because he grabbed L.M.’s breast and of simple battery because he placed her in a
headlock. The court reviewed a video recording of the incident before finding both
allegations true. The video was not included in the record on appeal. The court,
however, described its contents prior to rendering its decision. In pertinent part, the court
stated the video showed that when appellant sat on L.M.’s seat, he sat down right next to
her and “proceeded to push himself upon her[,]” and that there was no arm rest on the
seat as appellant claimed. It also showed appellant’s hand on L.M.’s shoulder “go down,
and come back up again.”
DISCUSSION
The Sufficiency of Evidence Issues
Appellant contends the evidence is insufficient to sustain the court’s true finding
on the sexual battery offense because: (1) L.M. “presented several contradictory
timelines regarding the sequence of events that precipitated the altercation” with
appellant; (2) she omitted mentioning that she bit appellant; and (3) she never stated, that
appellant touched her on the breast until it was suggested to her by the prosecution.2

2 In an attempt to impeach L.M., appellant cites to statements by Officer Michael
Verissimo that are contained in appellant’s probation report that were not presented
during the hearing in this matter. Appellant’s citation to these statements is improper

3.
 Additionally, with respect to the simple battery offense appellant contends the
evidence shows he acted in self-defense in responding to L.M.’s aggressive and
spontaneous attack. We reject these contentions.
“…When reviewing a claim of insufficient evidence, we examine the entire record
in the light most favorable to the prosecution to determine whether it contains reasonable,
credible and solid evidence from which the jury could find the defendant guilty beyond a
reasonable doubt. If the circumstances reasonably justify the verdict, we will not reverse
simply because the evidence might reasonably support a contrary finding.… [Citation.]
The testimony of just one witness is enough to sustain a conviction, so long as that
testimony is not inherently incredible. [Citation.] The trier of fact determines the
credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot
reject the testimony of a witness that the trier of fact chooses to believe unless the
testimony is physically impossible or its falsity is apparent without resorting to inferences
or deductions.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)
“[Sexual battery] consists of touching an intimate part of another, against the
victim’s will, committed for the purposes of sexual arousal, gratification or abuse.”
(People v. Chavez (2000) 84 Cal.App.4th 25, 29.)
Although L.M. was apparently reluctant to testify that appellant touched her
breast, eventually she unequivocally testified that after appellant sat down next to her, he
put his arm around her and grabbed her left breast. Further, the video recorded inside the
bus while this incident occurred corroborated L.M.’s testimony. Although the video was
not included in the record on appeal, the court viewed it prior to sustaining the petition
allegations against appellant. The video apparently does not show appellant actually
touching L.M.’s breast because of the angle from which it was taken. However, the court

because we may not consider evidence that was not presented in the trial court. (In re
Zeth S. (2003) 31 Cal.4th 396, 400, 405.)

4.
noted on the record that the video showed appellant’s hand on L.M.’s shoulder “go down,
and come back up again.” Thus, the evidence supports the court’s finding that appellant
touched an intimate part of L.M.’s body, her breast.
Further, the court could reasonably infer from appellant calling L.M. names, like
slut, and his statement to Detective Sanchez that L.M. was always flirting with boys, that
he touched L.M.’s breast “for the specific purpose of sexual arousal, sexual gratification,
or sexual abuse[.]” (§ 243.4, subd. (e).) Therefore, even if L.M.’s testimony was
contradictory, failed to mention that she bit appellant, or was prompted by the
prosecutor’s questions, since her testimony that appellant touched her breast was not
inherently incredible or patently false, the evidence supports the court’s true finding on
the sexual battery count.
“‘A battery is any willful and unlawful use of force or violence upon the person of
another.’ (§ 242.) ‘Any harmful or offensive touching constitutes an unlawful use of
force or violence’ under this statute. [Citation.] ‘It has long been established that “the
least touching” may constitute battery. In other words, force against the person is
enough; it need not be violent or severe, it need not cause bodily harm or even pain, and
it need not leave a mark.’” (People v. Shockley (2013) 58 Cal.4th 400, 404-405.)
“It is [also] well established that the ordinary self-defense doctrine—applicable
when a defendant reasonably believes that his safety is endangered—may not be invoked
by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical
assault or the commission of a felony), has created circumstances under which his
adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994)
7 Cal.4th 768, 773, fn. 1.)
Appellant willfully used force on L.M. when, as argued by the prosecution, he
placed her in a headlock. Further, since appellant precipitated L.M.’s aggressive conduct
in defending herself because appellant called her names, put his arm around her, and
grabbed her breast, he may not claim he acted in self-defense when he put L.M. in a

5.
headlock or, otherwise, physically assaulted her. Thus, we also conclude that the
evidence is sufficient to sustain the court’s true finding with respect to the simple battery
offense.
The Probation Conditions Relating to Gangs
On September 11, 2014, the court placed appellant on probation. As part of the
terms and conditions of his probation, the court ordered appellant to comply with
condition 21, which contained the following gang terms requiring that appellant:

“a. Not 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.

“b. Not wear or display items or emblems reasonably known by the
minor to be associated with or symbolic of gang membership.

“c. Not acquire any new tattoos or piercings known to the minor to
be gang related and have any existing tattoos or piercings photographed as
directed by the probation officer.”
Appellant cites People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez ) to
contend that his probation conditions relating to gangs are unconstitutionally vague and
overbroad because he could associate with groups of people that do not meet the
definition of a criminal street gang contained in section 186.22, subdivisions (e) and (f)3

3 Section 186.22, subdivision (f) provides: “As used in this chapter, ‘criminal street
gang’ means any ongoing organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary activities the commission of one
or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to
(33), inclusive, of subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.”
Under the statute, “‘pattern of criminal gang activity’ means the commission of,
attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of [certain identified crimes], provided at least
one of these offenses occurred after the effective date of this chapter and the last of those
offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons[.]” (§ 186.22, subd. (e).)

6.
and be found to have violated his probation. Thus, according to appellant, the probation
conditions that incorporate the word “gang” must be stricken or modified to clarify that
the word “gang” refers to a criminal street gang as defined in section 186.22, subdivisions
(e) and (f). We disagree.
The juvenile court has broad discretion in formulating conditions of probation.
(In re Tyrell J. (1994) 8 Cal.4th 68, 81; see Welf. & Inst. Code, § 730, subd. (b).) “That
discretion will not be disturbed in the absence of manifest abuse.” (In re Josh W. (1997)
55 Cal.App.4th 1, 5 (Josh W.).) The juvenile court may impose probation conditions that
infringe on constitutional rights if the conditions are reasonably related to the crime of
which the minor was convicted, or to future criminality. (In re Abdirahman S. (1997)
58 Cal.App.4th 963, 969.) Conditions limiting gang activities have been upheld in many
cases. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500-1502; see also In re
Michael D. (1989) 214 Cal.App.3d 1610, 1617; Josh W., supra, 55 Cal.App.4th at p. 6.)
Because “‘[a]ssociation with gang members is the first step to involvement in gang
activity[,]’ such conditions have been found to be ‘reasonably designed to prevent future
criminal behavior.’” (Lopez, supra, 66 Cal.App.4th at p. 624, quoting In re Laylah K.
(1991) 229 Cal.App.3d 1496, 1501, 1503.)
However, “[a] probation condition is subject to the ‘void for vagueness’ doctrine,
and thus ‘must be sufficiently precise for the probationer to know what is required of
him ....’” (Lopez, supra, 66 Cal.App.4th at p. 630.)
In Lopez one of the defendant’s conditions of probation prohibited the defendant
from being involved in gang activities, associating with gang members, wearing or
possessing gang paraphernalia or displaying gang symbols. (Lopez, supra,
66 Cal.App.4th at p. 622.) On appeal, this court found that the word “gang” was, “on its
face, uncertain in meaning” because, “[a]lthough ‘gang’ [had] in the recent past likely
acquired generally sinister implications, the word [had] considerable benign
connotations.” (Lopez, supra, 66 Cal.App.4th at p. 631.) To eliminate any due process

7.
concerns, we modified the probation condition at issue to incorporate into it the
definitions contained in subdivisions (e) and (f) of section 186.22 by adding the following
sentence to the condition: “‘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).’”
(Lopez, supra, 66 Cal.App.4th at p. 638.)
Lopez is inapposite because, here, subdivision (a) of condition 21 uses the term,
“criminal street gang.” Unlike the use of the word “gang” by itself, which can refer to
many types of groups of people or gangs other than those involved in criminal activities,
the phrase “criminal street gang” unambiguously advises appellant that it applies to a
specific type of gang, a street gang involved in criminal activities. It also fairly implies
the statutory definition of gangs contained in section 186.22 subdivisions (e) and (f).
(Cf. In re Justin S. (2001) 93 Cal.App.4th 811, 816, fn. 3.) Thus, the phrase “criminal
street gang” is not unconstitutionally vague.
Further, although the other two conditions use the word “gang” rather than the
phrase “criminal street gang,” this phrase need not be included in every gang condition.
(In re Victor L. (2010) 182 Cal.App.4th 902, 914.)
Moreover, “[a] probation condition that imposes limitations on a person’s
constitutional rights must closely tailor those limitations to the purpose of the condition
to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007)
40 Cal.4th 875, 890.) Since the three conditions at issue only prohibit activities related to
criminal street gangs and they are closely tailored to the legitimate state interest of
rehabilitating appellant, they also are not unconstitutionally overbroad. (Cf. People v.
Leon (2010) 181 Cal.App.4th 943, 951 [the court rejected the contention that the
probation condition that used the phrase “criminal street gang” was unconstitutionally
overbroad].)
DISPOSITION
The judgment is affirmed.

8.