Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV37148
ELIA, J.On May 17, 2010, the Santa Clara County District Attorney filed a wardship petition under Welfare and Institutions Code section 602, subdivision (a) alleging that D.G. illegally possessed a knife on school grounds. (Pen. Code, § 626.10, subd. (a).) Subsequently, D.G. admitted the allegation in the petition and was place on the Deferred Entry of Judgment program.
Thereafter, following a contested jurisdiction hearing, the juvenile court sustained a second wardship petition finding that D.G., had committed an assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a).) The juvenile court found true an allegation in the petition that D.G. personally inflicted great bodily injury on the victim.
During the dispositional hearing on September 14, 2010, the court placed D.G. on probation on, among other things, condition No. 13, which requires that D.G. "not be on or adjacent to any school campus unless enrolled or with prior administrative approval."
D.G. filed a timely notice of appeal.
On appeal, D.G. raises two issues. First, he contends that this matter must be remanded to the juvenile court because the court failed to explicitly declare whether his offenses were felonies or misdemeanors and because there is no indication in the record that the court was aware of its discretion. Second, he asserts that the probation condition forbidding him from being adjacent to any school campus is unconstitutionally vague and overbroad. For reasons that follow, we remand this matter to the juvenile court.
Facts and Proceedings Below
After reviewing the evidence in a light most favorable to the judgment (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466), briefly we summarize the facts underlying the assault charge. D.G. and another student at Yerba Buena High School, T.A., had a hostile relationship. T.A. testified that on June 7, 2010, he and D.G. got into a heated argument in the locker room at school. D.G. said that he would see T.A. later in the day. About 15 minutes later, T.A. went to the bathroom in another building. D.G. followed T.A. into the bathroom and attacked him. T.A. testified that D.G. punched him in the head several times, but he got D.G. into a headlock. Eventually, the two fell to the ground and D.G. punched him several more times and kicked him several times in the head. D.G. left T.A. on the floor in the bathroom where the school's security officer, John Gossett, found him sitting in a disoriented state. T.A. thought that he may have "passed out" during the incident.
T.A. was taken to Kaiser Hospital where emergency room physician Dr. Chandu Karadi diagnosed him with superficial cuts on his face, a bruise and swelling on the left side of this head, and a "closed head injury, " which Dr. Chandu testified could include a concussion. However, Dr. Chandu said that he could not commit to a concussion diagnosis.
The court found T.A. was "definitely... a victim of a 245" and that there was "evidence of great bodily injury of the enhancement petition...."
Since the court talked about "the enhancement" we assume that the court was referring to the allegation that D.G. personally inflicted great bodily injury on T.A. as was alleged in the wardship petition.
As to disposition, the court stated that "this was a serious case and somebody got really hurt." However, the court decided to "give [D.G.] a break" and released him "on the Electronic Monitoring Program" for 50 days. With exceptions not relevant here, the court adopted the recommendations for probation conditions contained in the juvenile probation officer's report, including the condition that D.G. "not be on or adjacent to any school campus unless enrolled or with prior administrative approval."
Discussion
Failure to Declare the Minor's Offenses to be Misdemeanors or Felonies
The minor contends that the court failed to specify whether his offenses of having a knife on school grounds in violation of Penal Code section 626.10, subdivision (a)(1) and assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) were misdemeanors or felonies.
As to the possession of a knife on school grounds offense, the District Attorney charged the offense as a felony. Before D.G admitted the offense, Judge Bernal stated, "In the probation report there is one charge. It says on January 15th 2010, you had a knife at school, in violation of Penal Code section 626.10(a), a felony. Is it true you committed that crime?" D.G. said it was true and Judge Bernal accepted D.G.'s admission and found the allegation to be true. Thereafter, as noted, Judge Bernal deferred entry of judgment. Judge Bernal did not specifically state for the record whether he considered the offense to be a felony or a misdemeanor.
Similarly, after Judge Tondreau found that D.G. had assaulted T.A., Judge Tondreau did not specifically state on the record whether he found the offense to be a misdemeanor or a felony.
Welfare and Institutions Code section 702 provides, "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (Italics added.) Possession of a knife on school grounds and assault with force likely to produce great bodily injury are punishable by imprisonment in the state prison or a county jail. Specifically, possession of a knife on school grounds is punishable by "imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison." (Pen. Code, § 626.10, subd. (a).) Similarly, assault with force likely to produce great bodily injury is punishable by "imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year.... " (Pen. Code, § 245, subd. (a)(1).) As noted, the record does not reflect that the juvenile court ever expressly declared orally that these offenses were felonies rather than misdemeanors.
In In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.), the California Supreme Court held that a remand was required where the juvenile court had failed to make an express declaration as to whether the offense was a felony or a misdemeanor. In Manzy W., the offense had been alleged as a felony, and Manzy had admitted the allegation. (Id. p. 1202.) The juvenile court had committed Manzy to the then California Youth Authority and set his maximum term of physical confinement at three years, a felony-level term. (Id. at p. 1203.) Nevertheless, the California Supreme Court held that Welfare and Institutions Code section 702's requirement of an express declaration required a remand. The court's analysis noted that a reference to the offense as a felony in the minutes of the dispositional hearing would not obviate the need for an express declaration by the court. (Id. at pp. 1207-1208.)
The California Youth Authority is now the Department of Juvenile Justice. (Gov. Code, §§ 12838, subd. (a), 12838.3; Welf. & Inst. Code, § 1710, subd. (a).)
However, in Manzy W., the California Supreme Court pointed out that a remand was not "automatic" whenever the juvenile court failed to make an express declaration. (Manzy W., supra, 14 Cal.4th at p. 1209.) "[T]he record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Id. at p. 1209.)
Requiring the juvenile court to declare whether an offense is a misdemeanor or felony "facilitat[es] the determination of the limits on any present or future commitment to physical confinement for a so-called 'wobbler' offense." (Manzy W., supra, 14 Cal.4th at p. 1206.) Furthermore, "the requirement that the juvenile court declare whether a so-called 'wobbler' offense [is] a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702." (Id. at p. 1207.)
The Attorney General contends that as to the possession of a knife charge, the minute order reflects that the court found the offense to be a felony. Certainly, a minute order shows that the box is checked in front of the statement "Court finds that the following counts may be a felony or a misdemeanor. Court finds Count 1 to be a Felony." However, the court minutes are not signed by the judge. Since the entry of the minutes of the proceedings into the minute order is a clerical function (see People v. Mesa (1975) 14 Cal.3d 466, 471), we have no way of knowing if the court actually exercised its discretion under Welfare and Institutions Code section 702 or the court clerk assumed the court had because D.G. admitted that he "had a knife at school, in violation of Penal Code section 626.10(a), a felony" and the court found the allegation to be true. "[N]either the pleading, minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.]" (Manzy W., supra, 14 Cal.4th at p. 1208.)
As to the assault charge, the Attorney General points out that the record is somewhat different. The minute order does not expressly show that the court determined that the offense was a felony. Nevertheless, the Attorney General argues that because the court found true the personal infliction of great bodily injury enhancement any error in declaring whether or not the offense was a felony is harmless. Specifically, the Attorney General argues that having found that D.G. personally inflicted great bodily injury, it is not reasonably probable that the court would have determined that the crime was a misdemeanor.
The Attorney General concedes that the finding of personal infliction does not automatically make the assault offense a felony. We agree. If the statute that defines the substantive offense does not proscribe a state prison sentence when an additional factual allegation is found true, such as a sentencing enhancement, it does not convert the offense to a straight felony and the offense may be reduced to a misdemeanor. (People v. Feyrer (2010) 48 Cal.4th 426, 443-444 [the substantive offense statute—Pen. Code, § 245—does not specify that the additional factual finding of actual personal infliction of great bodily injury caused the offense to be punished by a sentence to state prison].)
The Attorney General is missing the point. A remand is required unless the record as a whole establishes that the juvenile court was aware of its discretion to treat the assault offense as a misdemeanor. Since the record contains no indication that the juvenile court was aware of its discretion to treat the offenses as misdemeanors, a remand is required to permit the juvenile court to exercise its discretion to treat the possession of a knife on school grounds and the assault charge as misdemeanors.
Probation Condition 13
D.G. contends that the probation condition requiring him to "not be on or adjacent to any school campus unless enrolled or with prior administrative approval" is both unconstitutionally vague and overbroad.
D.G. argues that no objection is necessary to correct a condition of probation that is unconstitutionally vague or overbroad on its face. To an extent, D.G. is correct. A challenge to a "facial constitutional defect in the relevant probation condition" that is "capable of correction without reference to the particular sentencing record developed in the trial court" can be heard by an appellate court. (In re Sheena K. (2007) 40 Cal.4th 875, 887 (Sheena K.).)
Nevertheless, a 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." (Welf. & Inst. Code, § 730, subd. (b).) "A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.]" (In re Josh W. (1997) 55 Cal.App.4th 1, 5 (Josh W.).)
As to D.G.'s vagueness challenge, he argues that the term " 'adjacent to' is vague because it is too imprecise to inform the probationer what distance he must keep from the school to avoid violating the condition."
To withstand a constitutional challenge based on vagueness apparent on the face of a probation condition, the 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.' " (Sheena K., supra, 40 Cal.4th at p. 890 .) The "underlying concern" of the void for vagueness doctrine "is the core due process requirement of adequate notice." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.)
The challenge to a probation condition as being facially vague is a pure question of law, easily remedied on appeal by modification of the condition. (Sheena K., supra, 40 Cal.4th at p. 888.)
The Attorney General appears to concede that the word adjacent is too vague to give D.G. sufficient specificity as to what is required of him. The Attorney General suggests that a specific distance can be included in the condition.
The word "adjacent" conveys proximity and generally means "close to, " "lying near, " "next to" or "adjoining." (See The American Heritage Dictionary (3d ed.1997) p. 16) ["Close to; lying near" and "Next to; adjoining"]; The Oxford American Dictionary of Current English. Oxford University Press, 1999. Oxford Reference Online. Oxford University Press. Administrative Office of the California Courts. http://www. oxfordreference.com (as of 11 October 11, 2010) ["lying near or adjoining"]; Black's Law Dictionary (9th ed.2009) p. 46 ["Lying near or close to, but not necessarily touching"].) However, according to another common dictionary it can also mean "not distant: nearby." (Merriam Webster's Collegiate Dictionary (10th ed.1997) p. 14.)
As an abstract concept, we believe that the meanings of "adjacent" and "adjacent to" are understandable. They describe when two objects are relatively close to each other. The difficulty with this phrase in a probation condition is that it is a general concept that is sometimes difficult to apply. At a sufficient distance, most reasonable people would agree that items are no longer adjacent, but where to draw the line in the continuum from adjacent to distant is subject to the interpretation of every individual probation officer charged with enforcing this condition. As D.G. argues, "Is across the street 'adjacent to' a school? A block away? What if the school is not within sight? How near is too near? How far is just far enough?" To avoid inviting arbitrary enforcement and to provide fair warning of the locations D.G. should avoid, we conclude that the probation condition requires modification by identifying a specific distance from schools in general. Since we must return this case to the juvenile court for other reasons, we shall order the juvenile court to modify the probation condition to include a specific distance from schools.
We do not intend to suggest that all penal statutes employing the word "adjacent" are unconstitutionally vague. (E.g., Pen. Code, § 626.8 [prohibiting disruption of school by any person "who comes into any school building or upon any school ground, or street, sidewalk, or public way adjacent thereto"]; Pen. Code, § 4571 [prohibiting felons from coming on grounds of any institution housing prisoners without the warden's consent or upon "lands belonging or adjacent thereto"]; Pen. Code, § 4574 [prohibiting bringing deadly weapons into any institution housing prisoners without consent or "within the grounds belonging to or adjacent to any such institution"]; Veh. Code, § 22522 [prohibiting parking a vehicle within three feet of "any sidewalk access ramp constructed at, or adjacent to, a crosswalk]; Veh. Code, § 25305 [restricting placing or displaying "any lighted fusee" "upon or adjacent to the highway or highway-railroad crossing"]; Welf. & Inst. Code, § 1001.7 [prohibiting felons from coming on grounds of any California Youth Authority institution without consent or upon "lands belonging or adjacent thereto"].)
As to D.G's overbreadth challenge, he argues that he has a right to travel and the condition interferes with his freedom of movement and to remain in a place for legitimate purposes.
"A clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected conduct." (Grayned v. City of Rockford (1972) 408 U.S. 104, 114, fn. omitted.) "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. [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.)
In juvenile court, a condition of probation may be constitutional even if a similar condition imposed on an adult probationer would not, because of the juvenile court's broader discretion and a minor's lesser liberty interest. (See In re Tyrell J. (1994) 8 Cal.4th 68, 81-82, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 139); In re Eric J. (1979) 25 Cal.3d 522, 530.)
A plurality of the United States Supreme Court has recognized that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment." (City of Chicago v. Morales (1999) 527 U.S. 41, 53, fn. omitted (plur. opn. of Stevens, J.).)
Further, although "[t]he word 'travel' is not found in the text of the [federal] Constitution, " "the 'constitutional right to travel from one State to another' is firmly embedded in [U.S. Supreme Court] jurisprudence. [Citations.]" (Saenz v. Roe (1999) 526 U.S. 489, 498.) "The 'right to travel' discussed in [the U.S. Supreme Court] cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." (Id. at p. 500.) In addition, "[t]he right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution. [Citation.]" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100; see In re White (1979) 97 Cal.App.3d 141, 148 [the right to intrastate travel —which includes intramunicipal travel— is a basic human right protected by the United States and California Constitutions as a whole].)
Nonetheless, as explained in In re Antonio R. (2000) 78 Cal.App.4th 937 (Antonio R.), we reiterate that "juvenile conditions may be broader than those pertaining to adult offenders. This is 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. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may 'curtail a child's exercise of the constitutional rights... [because a] parent's own constitutionally protected "liberty" includes the right to "bring up children" [citation] and to "direct the upbringing and education of children." [Citation.]' [Citations.]" (Id. at p. 941.)
The Antonio R. court explained that even conditions infringing on constitutional rights may not be invalid if they are specifically tailored to fit the needs of the juvenile. (Antonio R., supra, 78 Cal.App.4th at p. 941.) "In planning the conditions of a juvenile probationer's supervision, the juvenile court must consider both the circumstances of the crime and the juvenile's entire social history. [Citation.]" (In re Christopher M., (2005) 127 Cal.App.4th 684, 693.)
That being said, it means that not all defects in conditions of probation may be raised for the first time on appeal. The forfeiture rule applies to constitutional challenges to probation conditions that do not present pure questions of law and involve alleged defects that are only apparent or correctable by reference to the facts. (Sheena K., supra, 40 Cal.4th at pp. 885-889.)
Faced with a claim of constitutional invalidity based upon an overbroad infringement upon the freedom to travel and loiter for legitimate purposes, we must determine whether the condition that allegedly impinges on constitutional rights was carefully tailored and reasonably related to the compelling state interest in the reformation and rehabilitation of D.G. (See Josh W., supra, 55 Cal.App.4th at p. 5.) To do so, we must examine the record. (See Antonio R., supra, 78 Cal.App.4th at p. 940-942; In re Frank V. (1991) 233 Cal.App.3d 1232, 1241-1242.) If D.G. had interposed an objection in the juvenile court, additional evidence to support the probation condition may have been presented, or the court may have taken the opportunity to more narrowly draft the condition to avoid any constitutional deficiencies. We conclude, therefore, that D.G. is precluded from directly challenging as overbroad this probation condition on appeal.
Disposition
The matter is remanded to the juvenile court to declare D.G.'s offenses to be either misdemeanors or felonies and to modify probation condition No. 13 to include a specific distance from school campuses.
WE CONCUR: RUSHING, P. J., PREMO, J.