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In re Mark J.

California Court of Appeals, Third District, Sacramento
Jul 3, 2008
No. C057024 (Cal. Ct. App. Jul. 3, 2008)

Opinion


In re MARK J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARK J., Defendant and Appellant. C057024 California Court of Appeal, Third District, Sacramento July 3, 2008

NOT TO BE PUBLISHED

Super. Ct. No. JV125264

RAYE, J.

Following the beating of a retired sheriff’s deputy, a juvenile wardship petition charged defendant Mark J. with assault by means of force likely to produce bodily injury and battery resulting in serious bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 243, subd. (d).) The juvenile court found the charges true, adjudged Mark a ward of the court, and committed him to the Warren Thornton Youth Center for a maximum of four years.

Mark appeals, arguing the probation condition that he not be in any place where illegal drugs are present must be stricken and the matter must be remanded to require the court to declare whether the offenses are felonies or misdemeanors. The People agree in general with Mark’s contentions. We remand for a modification of the challenged probation condition, and to allow the trial court to declare whether the offenses were felonies or misdemeanors.

BACKGROUND

Since Mark’s contentions on appeal relate only to the court’s actions in the dispositional hearing, only a brief recitation of the facts underlying the offense is necessary. As the probation report summarizes: “The minor punched the victim in the head causing him to fall to the ground. While down, the minor and accomplices punched and kicked the victim in the head and back, resulting in the victim receiving medical treatment for head trauma and a ruptured disc in the back.”

An amended wardship petition alleged that Mark came within the provisions of Welfare and Institutions Code section 602 by committing assault by means of force likely to produce bodily injury, and battery resulting in serious bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 243, subd. (d).) Both counts were alleged as felonies.

Following a contested hearing, the court found the felony allegations to be true and adjudged Mark a ward of the court. After a contested dispositional hearing, the court committed Mark to the Warren Thornton Youth Center and set the maximum confinement time at four years.

Mark filed a timely notice of appeal.

I

Mark contends the probation condition requiring he not be in any place where illegal drugs are present is unconstitutionally vague and must be stricken. The People partially concede the issue.

As a condition of probation, the court ordered that Mark “[n]ot associate with persons who you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana, or be in places where such substances are present . . . .” Mark argues the italicized language is unconstitutionally vague and overbroad since it does not contain an element of knowledge regarding the presence of illegal drugs. He also claims the term “place” is not sufficiently precise.

Both parties agree that a probation condition must be sufficiently precise for the probationer to know what is required of him. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) A condition that is not sufficiently precise is unconstitutionally vague and violates due process under the federal and California Constitutions. (Ibid.)

We agree with both Mark and the People that the probation condition that Mark not be in places where illegal drugs are present lacks the requirement that Mark know such drugs are present. Therefore, the condition must be modified to include the element of knowledge.

Mark also objects to the term “place,” arguing the word is not sufficiently precise for the probationer to know where he may or may not be. We disagree.

Mark argues “place” might mean the State of California, and therefore if there are illegal drugs in California, he would be in violation of the probation condition. We are not persuaded. The word “place” is a common term, easily understood to mean not a city, county, or state, but a contained area such as a residence, park, automobile, or restaurant. Accordingly, we find the condition sufficiently precise to put Mark on notice of what is required of him.

II

Mark contends the matter must be remanded to require the trial court to determine whether the offenses the court found true are felonies or misdemeanors. The People agree.

The court found Mark committed an assault and a battery. These offenses may be punished as either felonies or misdemeanors. The trial court must expressly declare on the record whether the offenses are felonies or misdemeanors. (Welf. & Inst. Code, § 702; In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).)

Here the court did not declare whether the offenses were felonies or misdemeanors. Where the court fails to declare whether an offense is a felony or a misdemeanor, remand is necessary unless the record shows the court was aware of its discretion to declare the offense a misdemeanor. (Manzy W., supra, 14 Cal.4th at pp. 1210-1211.) Here, nothing in the record before us shows the trial court was aware of its discretion. Therefore remand is required.

The pleading charges the offenses as felonies and the court set a felony length maximum period of confinement. However, as the People concede, this is not a substitute for the required declaration. (Manzy W., supra, 14 Cal.4th at p. 1208.)

DISPOSITION

The matter is remanded to modify the challenged probation condition to include the element of knowledge and for the trial court to determine whether the offenses were felonies or misdemeanors. In all other respects, the order (judgment) is affirmed.

We concur: SIMS, Acting P.J., HULL, J.


Summaries of

In re Mark J.

California Court of Appeals, Third District, Sacramento
Jul 3, 2008
No. C057024 (Cal. Ct. App. Jul. 3, 2008)
Case details for

In re Mark J.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARK J., Defendant and Appellant.

Court:California Court of Appeals, Third District, Sacramento

Date published: Jul 3, 2008

Citations

No. C057024 (Cal. Ct. App. Jul. 3, 2008)