Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NJ17216, John H. Ing, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PERLUSS, P. J.
P. W. appeals from the juvenile court’s order continuing her wardship after finding she had committed aggravated assault with great bodily injury. P. W. contends the juvenile court erred by failing to declare on the record whether a prior adjudicated offense of making a criminal threat was a misdemeanor or a felony and by imposing an unconstitutional probation condition. We affirm the order as modified.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2002 police detained then 12-year-old P. W. after she punched and threatened a minor victim with a knife. The People filed a petition pursuant to Welfare and Institutions Code section 602 on December 17, 2002 alleging P. W. had committed aggravated assault, made a criminal threat and exhibited a deadly weapon (Pen. Code, §§ 245, subd. (a)(1); 422; 417, subd. (a)(1)). P. W. admitted the criminal threat allegation on January 3, 2003. The juvenile court dismissed the two remaining allegations and ordered P. W. home on probation for six months without adjudging her a ward of the court (§ 725, subd. (a)). Although unnecessary, the court specified the maximum period of physical confinement as three years.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
As the result of a second section 602 petition filed January 30, 2003, on February 25, 2003 the juvenile court sustained the allegation P. W. had violated a court order by threatening a minor victim with harm (Pen. Code, § 166, subd. (a)(4)), a misdemeanor. The remaining allegations in the second petition, making a criminal threat and threatening a witness, were dismissed (Pen. Code, §§ 422, 140, subd. (a)). However, the court revoked its previous order of probation without wardship under section 725, subdivision (a), and, at the disposition hearing on March 6, 2003, ordered P.W. “to remain” a ward of the court pursuant to section 602 and ordered suitable placement (group home), with a maximum period of physical confinement not to exceed three years two months (the upper term of three years for the January 2003 criminal threat offense, plus two months -- one-third the maximum six month sentence -- for the misdemeanor offense of violating a court order).
The final sentence of section 725, subdivision (a), provides, “If the minor fails to comply with the conditions of probation imposed, the court may order and adjudge the minor to be a ward of the court.”
The January 30, 2003 petition and the minute orders from the February 25, 2003 adjudication and March 6, 2003 disposition hearing were not originally part of the record on appeal. The record was augmented to include this material following our request for supplemental briefing regarding the proper calculation of the maximum period of physical confinement.
On August 27, 2003 the People filed a third section 602 petition against P. W. for aggravated assault with great bodily injury and for carrying a concealed dirk or dagger (knife) after she cut a neighbor’s arm as he was escorting her off his property (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a); 12020, subd. (a)(4)). The juvenile court sustained the allegation P. W. had carried a concealed dirk or dagger and ordered P. W. to remain a ward of the court and to be placed in the camp community placement program for a nonaggregated period of physical confinement of three years.
The aggravated assault allegation had been previously reduced to simple assault and was dismissed at disposition; the great bodily injury enhancement had been previously dismissed.
On August 11, 2004 the People filed a fourth section 602 petition alleging P. W. had committed misdemeanor battery when she threw a writing pen that hit a minor victim’s leg (Pen. Code, § 242). P. W. admitted the battery allegation; the juvenile court sustained the petition on September 3, 2004 and ordered P. W. to remain a ward of the court, subject to certain terms and conditions of probation including, “12. Do not be within one block of any school ground unless enrolled, attending classes, on approved school business, or with school official, parent or guardian.” P. W. was placed in a six-month camp community placement program with a maximum period of physical confinement of four years.
In August 2005 police detained P. W. after she grabbed a minor victim by the hair and slammed her into some steps, breaking the victim’s jaw. In an amended section 602 petition filed August 3, 2005 the People alleged P. W. had committed aggravated assault with great bodily injury (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a)). On October 20, 2005 the juvenile court sustained the allegations and ordered P. W. to remain a ward of the court, subject to previously imposed and additional terms and conditions of probation. The juvenile court ordered P. W. suitably placed, preferably in a closed facility, and determined the aggregated maximum period of physical confinement was eight years six months, calculated as the upper term of four years for aggravated assault, a felony, plus a three-year term for the great bodily injury enhancement (August 3, 2005 petition); plus eight months (one-third the middle term of two years) for making a criminal threat, a felony (December 17, 2002 petition); plus eight months (one-third the middle term) for carrying a concealed dirk or dagger, a felony (August 27, 2003 petition); plus two months (one-third the maximum term) for battery, a misdemeanor (August 11, 2004 petition). P. W. timely appealed from the October 20, 2005 order.
CONTENTIONS
P. W. contends the juvenile court erroneously calculated the maximum period of physical confinement at the October 20, 2005 disposition hearing by assuming P. W.’s first offense, making a criminal threat (December 17, 2002 petition), was a felony in the absence of an express declaration at the January 3, 2003 disposition hearing whether the offense was a misdemeanor or a felony; and probation condition 12, reimposed by the juvenile court at the October 20, 2005 disposition hearing, is unconstitutionally vague and overbroad and should be modified to include a knowledge requirement.
REQUEST FOR SUPPLEMENTAL BRIEFING
We requested supplemental briefing from the parties to address whether the juvenile court erred at the October 20, 2005 disposition hearing by including as part of its computation of the maximum period of physical confinement a term for the offense of making a criminal threat even though P. W. had not been not adjudged a ward of the court at the January 3, 2003 hearing disposition -- an issue not raised in the parties’ appellate briefs.
We also asked, if the juvenile court did err in calculating the aggregated maximum period of physical confinement, whether the error constituted an “unauthorized sentence” under People v. Scott (1994) 9 Cal.4th 331, 353.
DISCUSSION
1. The Juvenile Court Properly Calculated the Maximum Period of Physical Confinement
P. W. admitted and the juvenile court found on January 3, 2003 that she had committed the offense of making a criminal threat as alleged in the December 17, 2002 petition, for which P. W. was placed on probation without wardship (§ 725, subd. (a)). The crime, if committed by an adult, is a “wobbler” (see Pen. Code, § 17, subd. (b)), punishable by imprisonment in the county jail not to exceed one year or by imprisonment in the state prison (Pen. Code, § 422). Section 702 requires, “[i]f 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.” P. W. argues the juvenile court failed to comply with section 702 at either the January 3, 2003 or the October 20, 2005 disposition hearings by declaring the criminal threat offense to be either a misdemeanor or felony. She urges the matter be remanded for the juvenile court to comply with the statute, and if necessary, to recalculate the eight-year six-month maximum period of physical confinement. (See generally In re Manzy W. (1997) 14 Cal.4th 1199, 1209 [if juvenile court does not expressly declare or characterize nature of “wobbler” offense and record as whole fails to establish court was aware of its discretion, appellate court must remand matter to juvenile court to declare offense to be misdemeanor or felony].)
P. W.’s claim the juvenile court failed to comply with section 702 was not timely raised by an appeal from the January 3, 2003 disposition order. (See In re Do Kyung K. (2001) 88 Cal.App.4th 583, 590 [juvenile may appeal from the order placing him or her on probation without wardship pursuant to § 725, subd. (a)].) As such, the issue has been forfeited. (See In re Ronald E. (1977) 19 Cal.3d 315, 322.)
In fact, at the October 20, 2005 hearing P. W.’s counsel agreed with the juvenile court’s aggregated maximum period of physical confinement, never arguing there had been a failure to comply with section 702 or the criminal threat offense was, or should have been, declared a misdemeanor. (See People v. Vera (1997) 15 Cal.4th 269, 275 [“appellate court will not consider claims of error that could have been -- but were not -- raised in the trial court”].)
Nonetheless, by including the January 2003 criminal threat offense in its October 20, 2005 calculation of the maximum period of physical confinement, the juvenile court’s order appeared to raise the question whether a term for that offense should have been part of the equation at all, in light of the court’s decision to sustain the original section 602 petition but place P. W. on probation without adjudging her a ward of the court pursuant to section 725, subdivision (a).
Section 725 provides, in part, “After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows: [¶] (a) If the court has found that the minor is a person described by Section 601 or 602, by reason of the commission of an offense other than any of the offenses set forth in Section 654.3, it may, without adjudging the minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months. . . .”
Section 726, subdivision (c), which governs the calculation of the maximum period of physical confinement for minors adjudged wards of the court for multiple offenses, provides, in part, “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. [¶] . . . [¶] If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602 , the ‘maximum term of imprisonment’ shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code . . . .” (Italics added.) Thus, to calculate the maximum period of physical confinement, the juvenile court can include only those offenses disposed of by an adjudication of wardship.
Because the January 3, 2003 disposition did not initially result in an adjudication of wardship, it appeared from the record on appeal originally presented to us that no subordinate term for making a criminal threat should have been included by the juvenile court in its October 20, 2005 calculation of P. W.’s maximum period of physical confinement. However, in response to our request for supplemental briefing on the issue, we received copies of minute orders from the adjudication hearing on February 25, 2003 and the disposition hearing on March 6, 2003, at which the juvenile court not only sustained in part the new section 602 petition filed on January 30, 2003, but also revoked its prior order of probation without wardship under section 725, subdivision (a), entered at the January 3, 2003 disposition hearing for the December 17, 2002 petition. The court’s orders plainly adjudicate P. W. a ward of the court with respect to both sustained petitions and properly compute an aggregated maximum period of physical confinement for the offenses involved. Although P. W. argues in her supplemental briefing that the court’s orders do not expressly state she was adjudged a ward of the court in connection with the December 17, 2002 petition, referring instead to her “remain[ing]” a ward of the court pursuant to section 602,” that notation, to the extent it is incorrect at all, must be clerical error; for the only option available to the court once the section 725, subdivision (a), probation had been revoked was to adjudicate P. W. a ward of the court and make an appropriate placement order. (See §§ 725, subd. (b), 727, subd. (a).) Accordingly, the juvenile court on October 20, 2005 properly included an eight-month term (one-third the middle term of two years) for the initial criminal threat offense in its computation of P. W.’s maximum period of physical confinement.
2. The Challenged Probation Condition Must Be Modified To Include a Knowledge Requirement
Probation condition 12 prohibits P. W. from being “within one block of any school ground unless enrolled, attending classes, on approved school business, or with school official, parent or guardian.” P. W. contends this condition is unconstitutionally vague and overbroad and urges us to modify it to include a knowledge requirement. The People argue P. W. has forfeited her challenge to this probation condition by failing to object in the juvenile court either when the condition was initially imposed on September 3, 2004 or when it was reimposed on October 20, 2005. The People also argue the requirement of knowledge is, in any event, implicit in the condition.
The California Supreme Court recently held, as a general matter, a challenge to a probation condition as facially vague or overbroad is not foreclosed by a failure to object in the juvenile court because it presents a pure question of law resolvable without reference to the particular dispositional record developed in the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Additionally, the Court concluded a probation condition forbidding a minor’s association with “‘anyone disapproved of by probation’” was impermissibly vague because it did not provide advance notice to the minor with whom he or she may not associate. The Court held modification of the probation condition “to impose an explicit knowledge requirement [was] necessary to render the condition constitutional.” (Id. at pp. 891-892.)
As examples of similar, vague probation conditions properly modified on appeal, the Supreme Court cited In re Justin S. (2001) 93 Cal.App.4th 811, 816 (probation condition modified to forbid the minor’s association “with any person known to you to be a gang member”); People v. Lopez (1998) 66 Cal.App.4th 615, 624 and footnote 5 (condition of probation modified to prohibit defendant from associating “with any person known to defendant to be a gang member”); People v. Garcia (1993) 19 Cal.App.4th 97, 103 (condition of probation modified to provide that the defendant “is not to associate with persons he knows to be users or sellers of narcotics, felons or ex-felons”). (In re Sheena K., supra, 40 Cal.4th at p. 892.)
Probation condition 12 suffers from the same lack of an express knowledge requirement. Accordingly, we modify it to provide that P. W. must not knowingly be within one block of any school ground unless enrolled, attending classes, on approved school business, or with school official, parent or guardian.
DISPOSITION
Probation condition 12 is modified to read, “Do not knowingly be within one block of any school ground unless enrolled, attending classes, on approved school business, or with school official, parent or guardian.” As modified, the order is affirmed.
We concur: JOHNSON, J., ZELON, J.