Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV34835
Premo, J.
I. Introduction
The minor, M.R., was the subject of two juvenile wardship petitions. (Welf. & Inst. Code, § 602.) In the first, the minor was alleged to have committed two counts of misdemeanor vandalism (Pen. Code, § 594, subds. (a) & (b)(2)(A)), one count of felony possession of methylenedioxy-methamphetamine (MDMA, also known as ecstasy) (Health & Saf. Code, § 11377, subd. (a)), and one count of felony possession of cocaine (id., § 11350, subd. (a)). The second petition alleged that the minor had committed second degree robbery. (§§ 211, 212.5, subd. (c).)
All further unspecified section references are to the Penal Code.
Following a contested jurisdictional hearing, the juvenile court sustained the allegations of the second petition, finding that the minor had committed second degree robbery. The minor admitted the allegations of the first petition. The juvenile court declared the minor to be a ward of the court and placed the minor on probation in the custody of his mother. The conditions of probation included condition No. 18, that the minor not own, use, or possess “dangerous or deadly weapons” or remain in any building, vehicle, or in the presence of any person where dangerous or deadly weapons exist.
On appeal, the minor argues that there was insufficient evidence to support the robbery finding, that condition No. 18 is unconstitutionally vague and overbroad, and that the juvenile court erred in failing to declare whether it found the MDMA charge to be a misdemeanor or a felony.
We find no merit to the minor’s argument pertaining to the evidence. We agree that the condition No. 18 is, in part, overbroad. We also agree that the record fails to establish that the juvenile court designated the MDMA count as either a misdemeanor or a felony. Accordingly, we shall modify condition No. 18 and remand the matter to the juvenile court to state whether it found the MDMA count to be a misdemeanor or a felony.
II. Factual and Procedural Background
At the contested jurisdictional hearing on January 27, 2009, the victim, Balwinder Singh Sanghera, testified that he was the owner of a liquor store in Sunnyvale. On September 13, 2008, around 5:00 p.m., Sanghera was standing behind the counter in his store when three young men came in. Two of the young men walked to the back of the store and picked up some beer, then joined the third youth at the counter where they asked Sanghera the price. Each of the two youths held a 30-pack of beer, the third held a bottle. Sanghera told them the price of the beer and two of the youths ran outside. The minor, who was holding a 30-pack of beer, “started to pick up and was about to run” when Sanghera jumped across the counter and stopped him, saying, “Don’t do this.” The minor hit Sanghera with the package of beer. Sanghera started to feel dizzy and the youth tried to hit him with his fist. Sanghera stated, “When he tried to run initially he had the beer in his hand when we tried to stop him and then the beer fell out of his hand.” He never got outside of the door with the beer.
Sanghera held on to the minor’s leg while he tried to get away. Sanghera then fell down. Two young men kicked Sanghera in the face. The minor freed himself from Sanghera’s grasp and also began to kick him in the face. Other store workers came to Sanghera’s rescue and eventually brought the minor into the store and the police were called. The other youths remained outside, kicking at the door, the minor urging them to come to his aid. A passerby observed the melee and came into the store to help subdue the minor. Sanghera, who is about six feet tall, stated that the minor came up to Sanghera’s shoulder.
Officer Anthony Sult responded to the liquor store and took statements from the witnesses. The officer did not recall Sanghera mentioning that he had been struck with a 30-pack of beer. The police recovered the 30-pack of beer from inside the store. Defense counsel asked Officer Sult to confirm his understanding that, at the time Sanghera had grabbed the minor, he “had already dropped the beer.” The officer clarified, “Originally he was still holding onto the pack of beer.” Counsel then asked, “Let me again refer you to your report page 4 of 5 second paragraph indicates again drop the case of beer and began to punch and kick as well.” To which Officer Sult responded, “That’s correct. In the--or in the second sentence of that paragraph, ‘Well, [the minor] was actively resisting to get away.’ That’s the first struggle that I was referring to. The second one, yes. He dropped the beer.”
The court found, “beyond a reasonable doubt that a second degree robbery was committed. I think there’s evidence beyond a reasonable doubt that [the minor] committed that offense on September 13, 2008, in violation of [sections] 211-212.5 [subdivision] (c), a felony.”
After the court explained his rights, the minor admitted the two vandalism allegations and the allegations that he had been in possession of MDMA and cocaine. The court sustained the allegations of both petitions. At disposition, the prosecutor commented to the minor that she hoped he would distance himself from his gang-member friends. “[M]y impression of this case is that was, sort of, a beer run gone bad. And that’s what happens when you hang out with gang members. Stuff goes bad really fast. And the reason this remained a robbery is because of violence that was involved and the fear of those people were in as you and your friends were trying to kick down the door.”
The court adopted the recommendations of the probation officer. Setting no maximum time of confinement, the court placed the minor on probation in the custody of his mother and imposed the recommended probation conditions, with modifications not pertinent here. This appeal followed.
III. Discussion
A. Sufficiency of the Evidence of Robbery
The minor challenges the sufficiency of the evidence to support the juvenile court’s finding that he committed robbery. The test used to determine a claim of insufficiency of the evidence is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) In making this determination, we review the whole record, viewing the evidence in a light most favorable to the judgment, and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)
“Section 211 defines robbery as ‘the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.’ Robbery is, therefore, ‘ “ ‘a species of aggravated larceny.’ ” ’ (People v. Ortega (1998) 19 Cal.4th 686, 694, quoting Perkins & Boyce, Criminal Law (3d ed. 1982) p. 350.).... [¶]... [¶]
“... Larceny requires the taking of another’s property, with the intent to steal and carry it away. [Citation.] ‘Taking,’ in turn, has two aspects: (1) achieving possession of the property, known as ‘caption,’ and (2) carrying the property away, or ‘asportation.’ [Citations.] Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place of temporary safety with the property.” (People v. Gomez (2008) 43 Cal.4th 249, 254-255, fn. omitted.) Mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. (Id. at p. 255.) Since the asportation component of the taking continues while the loot is carried away and does not end on slight movement, the use of force or fear during the asportation, prior to the perpetrator’s having reached a place of temporary safety with the property, elevates the theft to robbery. (Cf. Ibid.) That is to say, in order to constitute the crime of robbery, the use of force or fear must be motivated by the intent to steal the property. (Cf. People v. Green (1980) 27 Cal.3d 1, 54, overruled on a different point in People v. Martinez (1999) 20 Cal.4th 225, 234.)
The minor concedes that there is sufficient evidence of his intent to steal the beer but argues that there is no evidence that he still harbored that intent when he used force against Sanghera. We disagree. As the minor admits, he was attempting to escape the store with the beer when the owner scaled the counter to stop him. The minor hit the owner with the pack of beer, then dropped it. This evidence might support the minor’s interpretation, which is that he abandoned his intent to steal as soon as the owner came after him. But the evidence could also support the trial court’s implicit finding, which was that the minor used force against the owner in order to flee with the beer but either lost control of the loot in the scuffle or promptly abandoned his intent to steal after hitting the owner because he realized that Sanghera was more physically powerful than he was. That is, the evidence is sufficient to support a finding that the minor still intended to take the beer at the time he hit Sanghera. Accordingly, the evidence is sufficient to support the robbery finding.
B. The Probation Condition
The minor next contends that probation condition No. 18, that he “not own, use, or possess any dangerous or deadly weapons and not remain in any building, vehicle, or the presence of any person where dangerous or deadly weapons exist,” is unconstitutionally vague. He maintains that the phrase “dangerous or deadly weapons” is vague in that it could include common items, such as “a dog, a straight pin, a pillow... [or] a fingernail file.” Thus, he claims, he does not have adequate notice of what items he must avoid.
As a preliminary matter, we note that the minor did not object to the imposition of this condition. The failure to object to a probation condition waives a challenge to the condition on appeal unless the challenge raises a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 880-889.) We shall assume, as respondent has, that the minor’s challenge is cognizable as a pure question of law.
In our view, the meaning of the phrase “dangerous or deadly weapons” is narrower and less restrictive than the minor maintains. There is a “long-standing distinction between weapons that are inherently deadly or dangerous and those that are deadly or dangerous based only on the facts of the particular case: ‘ “ ‘There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are “dangerous or deadly” [to] others in the ordinary use for which they are designed, may be said as a matter of law to be “dangerous or deadly weapons.” This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary... objects [that] are not weapons in the strict sense of the word and are not “dangerous or deadly” to others in the ordinary use for which they are designed, may not be said as a matter of law to be “dangerous or deadly weapons.” When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a “dangerous or deadly” manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a “dangerous or deadly weapon” may be thus established, at least for the purposes of that occasion.’ ” ’ ” (People v. Henderson (1999) 76 Cal.App.4th 453, 467-468.) For example, a screwdriver falls within the second class of weapons and, therefore, its possession, without more, does not establish possession of a dangerous or deadly weapon. On the other hand, a screwdriver is capable of being used as a dangerous or deadly weapon. Therefore, where the circumstances show that the possessor intends to use the screwdriver as a weapon, as where the possessor used it to hold law enforcement officers at bay, possession of the screwdriver would constitute possession of a dangerous or deadly weapon. (People v. Simons (1996) 42 Cal.App.4th 1100, 1107.)
Thus, under established case law, the weapons condition at issue prohibits the minor from possessing objects that are weapons in the strict sense of the word and objects that are capable of being used as dangerous or deadly weapons where the circumstances of possession indicate the minor intends to use them as weapons. Absent these latter circumstances the weapons condition would not prohibit the minor from owning or possessing everyday items that could be misused as weapons. We agree with our colleagues in the Second Appellate District, who recently held that the meaning of the phrase “dangerous or deadly weapon” is clearly established in the law and is “sufficiently precise” for the probationer to know what is required of him. (In re R.P. (2009) __ Cal.App.4th __ [2009 Cal.App. LEXIS 1300, pp. 8-9].) In short, probation condition No. 18, which prohibits the minor from possessing any dangerous or deadly weapon, is not unconstitutionally vague or overbroad.
The minor also argues that the condition that he “not remain in any building, vehicle, or the presence of any person where dangerous or deadly weapons exist” is unconstitutionally vague and should be modified to add a knowledge requirement. The People concede the point.
Absent a requirement that the minor know that he is disobeying a condition prohibiting him from remaining in an area where there are dangerous or deadly weapons, he is vulnerable to punishment for an unwitting violation of the condition. (See In re Justin S. (2001) 93 Cal.App.4th 811, 816.) Such a condition is unconstitutionally overbroad or vague. (People v. Lopez (1998) 66 Cal.App.4th 615, 628-629.) As currently phrased, the condition renders the minor vulnerable to criminal punishment for remaining in areas he does not know contain dangerous or deadly weapons or for remaining in the presence of persons he does not know possess such weapons. Accordingly, we accept the People’s concession and shall modify condition No. 18 to include the knowledge requirement.
C. Declaration of Whether Possession of MDMA Was a Felony or a Misdemeanor
Finally, the minor contends that the juvenile court failed to determine whether his possession of MDMA was a felony or a misdemeanor. 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.” (See also, Cal. Rules of Court, rules 5.780(e)(5), 5.790(a)(1), & 5.795(a).) This language “is unambiguous” and its “requirement is obligatory.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) The statute “requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (Ibid.)
Manzy W., supra, 14 Cal.4th at page 1206,explained that a minor may not be held in physical confinement longer than an adult convicted of the same offense, so that 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.” Further, “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 crime of possessing MDMA, a violation of Health and Safety Code section 11377, subdivision (a), is punishable as either a felony or a misdemeanor. Although his possession of MDMA was alleged and admitted as a felony, the juvenile court did not declare whether it found the offense to be a felony. It is true that remand is not required in every case when the juvenile court fails to make a formal declaration. “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.” (Manzy W., supra, 14 Cal.4th at p. 1209.) The People concede, and we agree, that the record does not make that clear here. Accordingly, we accept the People’s concession and shall remand the matter for the juvenile court to declare whether it found the MDMA offense to be a misdemeanor or a felony.
IV. Disposition
The conditions of probation are modified to add the word “knowingly” to condition No. 18, as follows:
“18. That the minor not own, use, or possess any dangerous or deadly weapons and not knowingly remain in any building, vehicle, or the presence of any person where dangerous or deadly weapons exist.”
The juvenile court’s dispositional order is reversed, and the matter is remanded for the limited purpose of permitting the juvenile court to consider whether the offense of possession of MDMA in violation of Health and Safety Code section 11377, subdivision (a), was a misdemeanor or a felony. The court shall enter a new order, reinstating its original order with the modification set forth above, and adding the express declarations required by Welfare and Institutions Code section 702, and California Rules of Court, rules 5.780(e)(5), 5.790(a)(1), and 5.795(a).
WE CONCUR: Rushing, P.J., Elia, J.