Opinion
F074346
08-07-2017
In re DOMINIK G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DOMINIK G., Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD069169)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appellant Dominik G., a minor, appeals from the juvenile court's dispositional order following a true finding on the charge appellant committed vandalism. (Pen. Code, § 594, subd. (a).) Appellant initially argued a probation term regarding electronic searches was overly broad and that the trial court erred in failing to reduce appellant's conviction to a misdemeanor. Following our request for supplemental briefing, appellant additionally argues the charge brought was a misdemeanor and therefore his felony conviction cannot stand. For the reasons set forth below, we reverse and remand for further proceedings.
All statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On or around February 9, 2015, appellant and two of his friends entered a neighbor's house without permission. Appellant and his friends knew at the time that the residence was unoccupied because the neighbors were moving. The three minors vandalized the interior of the home, spray painting the walls and several remaining possessions, spreading food and other items throughout the home, and destroying a fish tank.
On May 5, 2016, pursuant to a petition filed under Welfare and Institutions Code section 602, the juvenile court arraigned appellant on charges of first degree residential burglary (§ 459) and vandalism (§ 594, subd. (a)). With respect to the vandalism charge, the petition alleged appellant committed "the crime of VANDALISM UNDER $400 DAMAGE-DAMAGE/DESTROY, in violation of PENAL CODE 594(A), a FELONY ...." At this hearing, the court noticed the petition "says under $400 damage, but it says a felony" and asked whether the charge was a misdemeanor. The People responded, "If it is under 400, yes, your Honor, it should be a misdemeanor." The court then modified the petition by interlineation, crossing out "FELONY" and replacing it with "misdemeanor." Appellant waived formal reading of the petition and denied the charges.
At some future proceeding, the misdemeanor notation was crossed out and "Felony" was again written into the charge. The record does not reflect when this change occurred.
At the subsequent contested hearing, the People introduced evidence suggesting the damage incurred due to appellant's vandalism exceeded $1,000. At the conclusion of the evidence, the People dismissed the burglary charge and stated they would be "going forward with the felony vandalism charge." Appellant did not object, but later requested the court discretionarily reduce appellant's charge to a misdemeanor if the court believed the People had proven a felony occurred. The juvenile court found appellant had committed vandalism and found the charge "to be true as a felony."
At disposition, appellant's counsel again requested the juvenile court reduce appellant's conviction to a misdemeanor under section 17. The People responded that they had "a note that this was already reduced, but that could be incorrect." The court reviewed its ruling, noted it had found the offense true as a felony charge, and denied appellant's motion, stating it would consider reducing the charge to a misdemeanor if appellant successfully completed probation.
Appellant received probation for his offense. As part of the dispositional order, the court ordered appellant to not "knowingly and purposefully associate with, have contact in person, in writing, by telephone, or directed through a third party, with [appellant's] co-participants" in the vandalism. Appellant was also ordered to "submit to a search of your person, residence, or vehicle, and any electronic device in your custody or under your control at any time, day or night, with or without consent by any peace officer or probation officer."
This appeal timely followed.
DISCUSSION
In addition to the issues raised by appellant in his opening brief, this court ordered supplemental briefing on whether appellant was charged with felony vandalism. Because we find the People charged appellant with misdemeanor vandalism, and thus cannot claim a felony finding, we do not reach whether the trial court abused its discretion in failing to reduce the charge to a misdemeanor. Separately, we conclude the search term imposed on appellant was overbroad in this instance. Appellant Was Charged With a Misdemeanor Offense
In our request for supplemental briefing, we sought additional clarity on whether appellant faced a felony charge in this matter. The People argue the petition contained a felony charge that was informally and improperly amended based on a mistake. We do not agree.
The People correctly note that appellant was formally charged with a violation of section 594, subdivision (a). This statutory section only defines the offense generally and does not delineate the punishment. Vandalism is punished as either a wobbler (an offense that can be punished as either a felony or a misdemeanor) or a straight misdemeanor, based on the value of the damage caused. (§ 594, subd. (b)(1)-(2); Robert L. v. Superior Court (2003) 30 Cal.4th 894, 906, fn. 14.) The People claim that the designation of the offense as a felony demonstrates appellant faced a felony charge in this matter.
The problem with the People's argument is that it chooses to focus on the one word suggesting the offense was designated a felony, while ignoring the broader language of the charge. While the offense was designated a felony, the description of the offense in the formal charge as "VANDALISM UNDER $400 DAMAGE-DAMAGE/DESTROY" definitively evokes the language of the misdemeanor offense contained in section 594, subdivision (b)(1). Recognizing this conflict, the trial court raised it with the prosecutor and indicated that the conflict was likely the result of a typographical error, stating, "There was a time there where somehow that got distorted in your computer. I'm going to mark that as a misdemeanor." The prosecutor did not object. To the contrary, and to the extent asked about the conflict, the prosecutor stated, "If it is under 400, yes, your Honor, it should be a misdemeanor."
We do not find the People's suggestion that their representative "was not familiar with the underlying facts of the case" and therefore could not agree to the juvenile court's amendment to carry any weight. The juvenile court fairly relied on the representations of counsel appearing before it. We have no reason to believe counsel did not adequately prepare for the hearing.
The authority of the court to correct typographical and clerical errors in court documents is well settled. (People v. Trotter (1992) 7 Cal.App.4th 363, 370 [correcting error in verdict form which did not affect verdict proper because "California has long recognized that a trial court has similar authority to correct clerical errors in court documents"].) Such corrections, often by interlineation, are permissible with respect to charging documents when the correction does not change the underlying offense. (People v. Gary (1968) 263 Cal.App.2d 192, 197.) Here, there was no substantive change to the underlying offense. As the People noted, the statutory charge defined the general offense and not the punishment. Correcting a typographical error regarding the punishment of the offense did not change the charge appellant was facing in the petition and did not prejudice either the People or appellant. Accordingly, we conclude the trial court properly corrected a typographical error in the petition, as confirmed by the People's response when questioned on the issue. Thus, appellant faced a misdemeanor charge in the petition. Correcting the typographical error did not improperly amend the petition.
The People suggest appellant was on notice that he was charged with a felony, in part, because a detention report designated the vandalism charge as a felony. The record is not as clear as the People suggest. The report lists the current vandalism charge as "PC 594(A) M VANDALSIM," with the "M" signifying misdemeanor. Under the prior record section, both a first degree burglary charge and a vandalism charge are listed as felonies. The burglary charge of the prior offense section and the vandalism charge from the current offense section appear to most closely match the petition, leaving no clear inference as to the severity of the vandalism charge from this document. As appellant's detention report arose more than eight months after the petition was filed, due to a failure to appear warrant in the current matter, this document does not demonstrate appellant was notified he faced a felony vandalism charge. --------
Given the fact that appellant faced a misdemeanor charge, we next consider whether appellant could be convicted of a felony nonetheless. We conclude he could not under the facts of this case. The juvenile court lacks authority to add charges to a petition without the prosecutor's consent, a point preserved even without objection. (See People v. Simpson (2014) 223 Cal.App.4th Supp. 6, 10 [dealing with amendments to a complaint alleging driving infractions].) Moreover, we do not find the prosecutor's statement that the People would proceed on the felony vandalism charge to constitute a motion to amend the petition. The prosecutor made no formal request to the juvenile court nor was any specific order amending the petition entered. The court therefore incorrectly made a true finding on an offense that was not charged. (See In re Robert G. (1982) 31 Cal.3d 437, 445 [a petition cannot be sustained "upon findings that the minor has committed an offense or offenses other than one specifically alleged in the petition or necessarily included within an alleged offense, unless the minor consents to a finding on the substituted charge"].) Absent additional facts not present here, the juvenile court was limited to finding the petition true with respect to the misdemeanor offense charged. The Electronic Search Condition
Having concluded the true finding on appellant's petition is not sustainable as a felony offense, we note the juvenile court may need to fashion a new dispositional order. Appellant argues the juvenile court's electronic device search term was overly broad. To the extent the juvenile court considers imposing a similar provision on remand, we note that we agree with appellant.
Under Welfare and Institutions Code section 730, subdivision (b), when placing a juvenile in the care of a probation officer, the juvenile court may "impose and require 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." We review the imposition of such probation conditions for an abuse of discretion. (In re Erica R. (2015) 240 Cal.App.4th 907, 912.) In conducting this review, we keep in mind that " '[t]he permissible scope of discretion in formulating terms of juvenile probation is even greater than allowed for adults ... because juveniles are deemed to be "more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed." ' " (Ibid., citing In re Victor L. (2010) 182 Cal.App.4th 902, 909-910.)
A facial challenge to juvenile probation terms as overbroad may proceed despite the lack of an objection because resolution does "not require scrutiny of individual facts and circumstances," and the challenge thus presents a pure question of legal error that is not subject to forfeiture. (In re Sheena K. (2007) 40 Cal.4th 875, 885.) "When a probation condition imposes limitations on a person's constitutional rights, it ' "must closely tailor those limitations to the purpose of the condition" '—that is, the probationer's reformation and rehabilitation—' "to avoid being invalidated as unconstitutionally overbroad." ' [Citations.] 'The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the [probationer]'s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' " (In re P.O. (2016) 246 Cal.App.4th 288, 297.)
In this case, there is no dispute that some form of an electronic surveillance search condition is appropriate. Appellant may not have contact with the juveniles that engaged in the vandalism with him. Such contact, if it occurred, would reasonably occur through electronic communications. As such, there is little doubt that searching appellant's electronic communications for evidence of improper contacts is appropriate to further his rehabilitation. However, the search term in this case is much broader than that, allowing a search of any electronic device in appellant's custody or control for any purpose, not just to ensure the prohibited communications were avoided. As there is no indication the provision is appropriate to further other rehabilitative goals, it is not narrowly tailored to ensure appellant's rehabilitation succeeds. (See In re P.O., supra, 246 Cal.App.4th at pp. 297-298; In re Malik J. (2015) 240 Cal.App.4th 896, 902-905.)
DISPOSITION
The true finding and subsequent dispositional order are reversed and the matter remanded to the juvenile court for further proceedings consistent with this opinion.