Opinion
A144995
12-28-2016
In re C.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.A., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ15024362)
I.
INTRODUCTION
Appellant C.A., a minor, appeals the juvenile court's order declaring him a ward of the court under Welfare and Institutions Code section 602 and imposing conditions of probation. Appellant contends the juvenile court erred in its disposition order by (1) imposing a condition of probation prohibiting him from using or possessing weapons which is unconstitutionally vague; and (2) incorrectly calculating the maximum custody time as three years and two months. We agree the challenged condition of probation must be modified, and the pronouncement of the maximum confinement term stricken because appellant was not removed from parental custody.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise identified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and two other minors attempted to rob victim L.S. as she was walking on Powell Street in San Francisco. L.S. was carrying a Macy's bag and her purse when someone grabbed her by her hair and threw her to the ground. She saw three people who she described as screaming at her and demanding her purse. She refused to comply and put her body on top of her purse and bag. L.S. kept trying to get up to run, but she was repeatedly pushed down and "slammed to the ground." The minors never succeeded in getting L.S.'s bags.
Sherwood Yee was in a car on Powell Street and saw L.S. get attacked and fall to the ground. He also heard her screaming for help. He observed a minor in the gray hoodie, who he identified as appellant, grab L.S.'s hair, forcing her to the ground. Yee's friend who was riding in his car, yelled "Freeze, police," and the three minors ran away.
San Francisco Police Officer Minh Du responded to a robbery report in the area of California and Powell Streets, where she saw three individuals matching the description of the robbers and detained them. Shortly thereafter, Sherwood Yee arrived and identified the three individuals as the attempted robbers.
The San Francisco County District Attorney's Office filed an amended juvenile wardship petition pursuant to section 602 alleging appellant committed attempted second degree robbery in violation of Penal Code sections 664 and 211, and assault with force likely to cause great bodily injury in violation of Penal Code section 245, subdivision (a)(4).
After finding appellant guilty of second degree robbery and the lesser included offense of misdemeanor assault, the San Francisco court transferred the case to Alameda County for disposition.
Appellant appeared in Alameda County Superior Court for a disposition hearing. The court stated that while this was a serious case, appellant was doing well in school and at home. Therefore, the court concluded that the incident involving L.S. appeared to be an aberration, and appellant was expected to do well on probation. The court stated the maximum custody time was three years two months. Appellant was declared a ward of the court and placed on probation. The court set forth the conditions of probation, including: "You're not to use, possess or traffic in drugs, weapons, or alcohol." The "Conditions of Probation" signed by C.A. and his parents listed the weapons condition as follows: "Do not use or possess any deadly weapon or explosive device."
The dispositional report filed by the probation department listed the maximum custody time at three years eight months.
The court's disposition order stated appellant was adjudged a ward of the court, and "[c]are, custody, control and conduct shall be under the supervision of the Probation Officer. Minor to reside in the home of mother." The conditions of probation stated: "Do not use or possess any deadly weapon or explosive device."
III.
DISCUSSION
A. Probation Condition
Under section 730, subdivision (b), a juvenile court may impose "any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (§ 730, subd. (b).) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) The "underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.]" (Ibid.) "A probation condition which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process." (People v. Freitas (2009) 179 Cal.App.4th 747, 750 (Freitas).)
Respondent argues that appellant failed to object to the probation condition before the juvenile court and therefore any argument on appeal is forfeited. However, an appellant may challenge a probation condition as being unconstitutionally vague or overbroad on its face for the first time on appeal when the challenge presents a pure question of law that the appellate court can resolve without reference to the sentencing record. (Sheena K., supra, 40 Cal. 4th at pp. 887-889; In re Kevin F. (2015) 239 Cal.App.4th 351, 357 (Kevin F.).)
Appellant argues that the weapons condition is unconstitutionally vague because the term "weapon" does not sufficiently inform him of what is expected of him, and the condition should also include a scienter requirement.
Appellant does not object to the condition to the extent it prohibits him for using, possessing or trafficking in drugs or alcohol.
Our analysis is guided by this division's recent decision in Kevin F. The minor challenged a weapons condition that prohibited him from possessing any weapons or toys that looked like weapons. (Kevin F., supra, 239 Cal.App.4th at p. 357.) The written dispositional order contained a more specific condition than the oral pronouncement at the hearing: the minor was "[n]ot [to] possess weapons of any kind, which means no guns, knives, clubs, brass knuckles, attack dogs, ammunition, or something that looks like a weapon. You are not to possess anything that you could use as a weapon or someone else might consider to be a weapon." (Ibid.) We concluded the definition of weapons was not unconstitutionally vague when the written condition was taken into consideration. (Id. at p. 358.) The printed condition specified two categories: (1) items and instruments that categorically fall within the weapons prohibition, and (2) other items that could be used or perceived as a weapon "depending on the circumstances." (Id. at p. 360.) We modified the condition to clarify the second category. "Because what is and what is not a de facto weapon turns in part on intent to use the item for a dangerous or deadly purpose, we will order the condition modified to prohibit Minor from possessing any object that he intends to use as a weapon." (Id. at p. 361, italics omitted.)
In the present case, nothing in the weapons condition provided guidance on what constitutes a weapon. At a minimum, the condition must be modified to prohibit appellant from possessing or using a "deadly or dangerous weapon." (See In re R.P. (2009) 176 Cal.App.4th 562.) The "phrase 'dangerous or deadly weapon' is clearly established in the law" and sufficient for a minor to know what is required of him. (Id. at p. 568.)
We further agree with appellant that the probation condition should be modified to include a knowledge requirement. We addressed this issue in depth in Kevin F. "[G]iven the breadth of what might be considered a 'weapon,' . . . a requirement of actual knowledge of the character of the weapon is appropriate to avoid criminalizing innocent conduct. [Citation.]" (Kevin F., supra, 239 Cal.App.4th at p. 365.) We explained, "the difficulty of defining with perfect clarity every potential item that might be considered a weapon illustrates why more warning is necessary. To provide adequate protection against unwitting violations, the probationer must engage in the proscribed conduct knowingly (i.e., with actual intent and understanding that he possesses something constituting a weapon). Particularly since there is a conditional liberty interest at stake, we think the addition of an express knowledge requirement making the scope of the prohibited conduct clear in advance to all who may be involved—to probationers, to law enforcement officers, to probation departments, and to juvenile courts—best comports with due process. [Citation.]" (Ibid., original italics; see also In re Ana C. (2016) 2 Cal.App.5th 333 (Ana C.), review granted Oct. 19, 2016, S237208 [applying Kevin F. and evaluating the need for a scienter requirement as it applies to each probation condition on a case by case basis].)
In reaching our conclusion, we acknowledged that some courts have found an express knowledge requirement is unnecessary as it is implicit in every probation condition because in order to find a violation the probationer must have willfully violated the probation condition. (In re I.S. (Dec. 8, 2016, A147004) ___ Cal.App.5th ___, 2016 Cal.App. Lexis 1074 [Div. One of this court disagreeing with Kevin F. and holding no express scienter requirement is necessary]; People v. Moore (2012) 211 Cal.App.4th 1179, 1186-1187 [if a probationer lacks knowledge that he is in possession of weapon, his possession cannot be considered a willful probation violation]; People v. Patel (2011) 196 Cal.App.4th 956, 960-961 [construing "every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly"].)
Our Supreme Court has granted review in several cases raising the scienter issue including the case relied on by respondent: People v. Gaines (review granted Feb. 17, 2016, S231723) [People v. Gaines explicitly referenced Kevin F. and rejected adding an express scienter requirement to probation conditions]; see also People v. Hall (review granted Sept. 9, 2015, S227193) [whether drug and weapons conditions are unconstitutionally vague and whether an explicit knowledge requirement is necessary]).
However, we believe the better approach is to include a knowledge requirement. In In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.), the probation condition required the minor " 'not remain in any building, vehicle or in the presence of any person where dangerous or deadly weapons or firearms or ammunition exist' " without limiting it to buildings or vehicles that he "knows to contain, or people who he knows to possess, such weapons." (Id. at p. 912, original italics.) Another division of this court rejected the argument adopted in People v. Moore that a knowledge requirement was not necessary because the condition should be given a "commonsense reading" and the minor's probation could not be revoked without evidence of a willful violation. (Victor L., at p. 913.) The court held that "[d]ue process requires more. It requires that the probationer be informed in advance whether his conduct comports with or violates a condition of probation." (Ibid.; see also Freitas, supra, 179 Cal.App.4th at p. 752 [a condition prohibiting possession of firearms or ammunition should be modified to specify that it applied to "knowing" possession because "the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition"].)
In light of these authorities, we conclude it is appropriate to modify the probation condition to read: "You are not to use, possess or traffic in drugs and alcohol, and not knowingly use or possess any dangerous or deadly weapons."
We reject appellant's request to include an itemized list in the condition. Appellant suggests the condition be modified to read: "Do not knowingly possess weapons of any kind, which means no guns, knives, clubs, brass knuckles, attack dogs, ammunition, or anything else that you knowingly intend to use as a weapon." A similar condition was adopted in Kevin F. based upon the trial court's written order. We have no similar written list enumerating types of weapons in this case. Listing the types of weapons is not required. Altering the condition to include the 'dangerous or deadly weapon' language and a knowledge requirement is sufficient. (See Kevin F., supra, 239 Cal.App.4th at p. 360 ["Because the qualifier 'dangerous or deadly' inheres in the commonly understood meaning of the term 'weapon' (see Black's Law Dict. (10th ed. 2014) p. 1827 ['[a]n instrument used or designed to be used to injure or kill someone']), we agree with the Attorney General that it is implicit in the probation condition as phrased by the court. Even without the qualifier Minor seeks, a reasonable person can understand the plain meaning of the term 'weapon.' "].)
B. The Maximum Term of Confinement Must Be Stricken
Appellant argues that the juvenile court erred at the disposition hearing and in its order by stating the maximum term of confinement was three years two months. He contends under section 731, subdivision (c) the maximum period of confinement should be only three years. He then concludes that the court erred under Penal Code section 654 because appellant should not have been sentenced consecutively for the attempted robbery and misdemeanor assault.
Appellant's argument misses the mark. Appellant cites to section 731, subdivision (c), which applies when a juvenile is committed to physical custody. A ward "may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section." (§ 731, subd. (c); In re Julian R. (2009) 47 Cal.4th 487, 495.) Appellant was adjudged a ward of the court and granted probation to be served while living with his mother. He was never committed to custody.
Respondent cites to section 726, subdivision (d), which provides "(1) If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." Section 726 also does not apply here because appellant was not ordered removed from the custody of his parent.
The parties then proceed to argue at length about the correct application of Penal Code section 654. We do not need to reach any of these arguments because it was error for the juvenile court to specify a maximum term of confinement when appellant was placed on probation in the custody of his parent. (In re A.C. (2014) 224 Cal.App.4th 590, 592 (A.C.); In re Matthew A. (2008) 165 Cal.App.4th 537, 541; In re Ali A. (2006) 139 Cal.App.4th 569, 571 (Ali A.).)
This narrow issue was not addressed by the parties in their respective briefs. By an order dated July 11, 2016, this court requested supplemental letter briefs addressing whether it was error for the juvenile court to specify a maximum period of confinement where appellant was allowed to remain in his parents' custody. Respondent concedes in its supplemental letter brief that it was error to specify a maximum term.
Appellant argues that it was not error for the juvenile court to set the maximum term because the court "impliedly made a factual finding" about whether consecutive terms were appropriate. Again, this argument misses the mark. As explained above, it was error under the authority cited for the court to make any recital of the maximum period of confinement when the minor has not been physically removed from parental custody.
"When a juvenile ward is allowed to remain in his parents' custody, there is no physical confinement and therefore no need to set a maximum term of confinement. Consequently, the maximum term of confinement included in the dispositional order . . . is of no legal effect." (Ali A., supra, 139 Cal.App.4th at p. 571.) In Ali A., the Third District held the maximum confinement term had no legal effect, and was therefore not prejudicial so it was not necessary to strike the term. (Id. at p. 574, fn. 2.) In a more recent decision, the Third District concluded: "The legal reasoning employed in Ali A. remains sound. However, the error of including maximum terms in noncustodial orders continues, unnecessarily depleting the limited resources of the judicial system. To stop this error, and quell the debate over its effect, we now conclude that where a juvenile court's order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term." (A.C., supra, 224 Cal.App.4th at p. 592.) We agree. The maximum confinement term is ordered stricken.
In appellant's supplemental letter briefs, he argues that even if it was error to set the maximum term of confinement, the court should address the merits of his Penal Code section 654 claim for several reasons: (1) he may be precluded from raising it at a later hearing if he violates probation or commits a new offense; (2) his court file may not be available to a court ruling on future charges or violations; and (3) it wastes judicial resources to have a new juvenile court decide the issue. None of these arguments is persuasive.
First, appellant would not be precluded from raising the issue at a subsequent hearing committing him to physical custody. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138 ["A minor may appeal a judgment in a Welfare and Institutions Code section 601 or 602 proceeding 'in the same manner as any final judgment.' (Welf. & Inst. Code, § 800, subd. (a).)"]). Second, his case file, including the transcript of the prior hearing, would be available to any juvenile court at a disposition hearing. The court may consider appellant's entire record including the nature of the current charges before ordering disposition. (See In re Michael B. (1980) 28 Cal.3d 548, 553 ["the court may consider the juvenile's entire record before exercising its discretion at the dispositional hearing [and may rely on prior sustained section 602 petitions in determining the proper disposition and maximum period of confinement]"].) Finally, the juvenile court did not make any findings about whether appellant's sentence should have been consecutive or concurrent, so there is no risk of duplication of effort if a future judge resolves this issue.
IV.
DISPOSTION
The conditions of probation shall be modified to read: "You are not to use, possess or traffic in drugs or alcohol, and not knowingly use or possess any dangerous or deadly weapons." The maximum confinement term is stricken from the juvenile court's dispositional order. Otherwise, the dispositional order is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.