Opinion
D057447 Super. Ct. No. JCM225591
08-19-2011
In re N.E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.E., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge, and Lawrence Kapiloff, Judge (retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution). Affirmed in part, reversed in part, and remanded with directions.
INTRODUCTION
The juvenile court found true allegations N.E. committed the offenses of robbery (count 1; Pen. Code, § 211), grand theft from a person (count 2; § 487, subd. (c)), attempted robbery (count 3; §§ 211, 664), and battery (count 5; § 242). The juvenile court placed N.E. on probation, subject to various terms and conditions, including conditions restricting his ability to drive with minors (restricted driving condition) and his ability to access court facilities (restricted court access condition).
Further statutory references are also to the Penal Code unless otherwise stated.
The juvenile court dismissed an allegation N.E. made a terrorist threat (count 4; § 422). The juvenile court also dismissed allegations N.E. committed his offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
N.E. appeals, contending we must reverse the true finding for count 2 because count 2 is a lesser included offense of count 1. In addition, he contends we must dismiss count 5 because the juvenile court did not expressly find the allegation for this count true. He also contends we must order the juvenile court to send corrected notifications to the San Diego Unified School District and the San Diego County Sheriff's Department omitting references to counts 2 and 5. Lastly, he contends we must order the juvenile court to modify the restricted driving condition to include a knowledge requirement and we must strike the restricted court access condition because it is overly broad.
The People concede and we agree we must reverse the true finding for count 2 and order the juvenile court to send corrected notices to the school district and sheriff's department reflecting the reversal. The People also concede and we agree we must order the juvenile court to modify the restricted driving condition to include a knowledge requirement. We further conclude we must strike the restricted court access condition because it is overly broad and remand the matter to the juvenile court to fashion a narrower condition if the juvenile court finds the condition is still necessary. In all other respects, we affirm the juvenile court's judgment.
DISCUSSION
We omit a summary of the facts underlying the true findings we need not refer to them to resolve the issues raised on appeal.
I
Count 2 A Lesser Include Offense of Count 1
Count 1 alleged N.E. committed a robbery against and count 2 alleged N.E. committed grand theft from the person of the same victim. The juvenile court found the allegations in both counts to be true beyond a reasonable doubt, but stated count 2 was "subsumed in [c]ount 1." N.E. contends the juvenile court erred in returning a true finding for count 2 because grand theft is a lesser included offense of robbery. The People concede and we agree the juvenile court erred in this regard. (People v. DePriest (2007) 42 Cal.4th 1, 50 [grand theft is a lesser include offense of robbery]; People v. Lewis (2008) 43 Cal.4th 415, 518 [multiple convictions may not be based on necessarily included offenses arising out of a single act or course of conduct].) We, therefore, reverse the true finding on count 2.
II
Failure to Make an Express True Finding on Count 5
A
When the juvenile court made its findings following the adjudication hearing, it stated, "I find Count 1 to be true beyond a reasonable doubt as a felony and if committed by an adult would be a felony. I am striking the allegation of gang. [¶] Count 2 is true beyond a reasonable doubt, but it's subsumed in Count 1. [¶] Count 3 — [¶] . . . [¶] I'm striking all of the allegations — all the gang allegations. [¶] . . . [¶] Count 3, I find true, an attempt, beyond a reasonable doubt as a felony and if committed by an adult would be a felony. I'm striking the gang allegations. [¶] I'm striking Count 4. [¶] And Count 5 is subsumed in Count 3." The court's corresponding minute order similarly states the court found N.E. in violation of counts 1 through 3 and 5, but that count 2 was subsumed in count 1 and count 5 was subsumed in count 3.
B
N.E. contends we must dismiss count 5 because the juvenile court did not expressly find the allegations in this count to be true. We disagree.
After a contested hearing on a wardship petition, the juvenile court "shall make a finding, noted in the minutes of the court, whether or not the minor is a person described by [Welfare and Institutions Code ] Section . . . 602 . . . . If the court finds that the minor is such a person, it shall make and enter its findings and order accordingly . . . . [¶] 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." (Welf. & Inst. Code, § 702, italics added; see also Cal. Rule of Court, rule 5.780(e)(3).) "Shall" in the context of this statute is obligatory and, therefore, requires the juvenile court's findings to be express. (See In re Manzy (1997) 14 Cal.4th 1199, 1204-1205.) Nonetheless, the juvenile court's failure to expressly find an allegation true is harmless error if the record as a whole demonstrates the juvenile court, in fact, found the allegation true. (See id. at p. 1209.)
In this case, we have no doubt from the record, the juvenile court found the allegation in count 5 true for two reasons. First, the juvenile court did not dismiss count 5 as it did the immediately preceding count 4 and the gang allegations, which it found not true. Second, the juvenile court had no reason to state count 5 was subsumed within count 3 unless it found the allegations in count 5 true. The juvenile court's true finding on count 3, which it based on the same facts as count 5, and its similar handling of count 2 fully support our conclusion.
In re Candelario (1970) 3 Cal.3d 702, upon which N.E. relies, is inapposite because, for the reasons stated, the record in this case is not silent as to count 5. Consequently, the record does not support an inference the juvenile court's omission of an express true finding on count 5 was an act of leniency. (People v. Hunt (1977) 19 Cal.3d 888, 895-896; People v. Chambers (2002) 104 Cal.App.4th 1047, 1050-1051.) Accordingly, we conclude the trial court's failure to expressly find the allegations in count 5 true was harmless error and we decline to order dismissal of this count.
C
N.E. alternatively contends we must order count 5 stayed under section 654. The People contend addressing this contention would an idle act. We agree with the People.
The issue of whether section 654 applies to count 5 is relevant only to whether the trial court correctly calculated N.E.'s maximum term of confinement under Welfare and Institutions Code section 726, subdivision (c). (In re Danny H. (2002) 104 Cal.App.4th 92, 106.) In this case, when the juvenile court calculated N.E.'s maximum term of confinement, it did not include any time for count 5. Accordingly, the issue is moot.
The juvenile court presumably found section 654 applicable to this count based on its finding that this count was subsumed in count 3.
III
Correction of Notifications to School District and Sheriff's Department As required by Welfare and Institutions Code section 827, subdivision (b)(2), the juvenile court notified the San Diego Unified School District that N.E. committed robbery, grand theft, attempted robbery, and battery. As required by Welfare and Institutions Code section 827.2, subdivision (a), the juvenile court notified the San Diego Sheriff's Department N.E. committed robbery, grand theft, and attempted robbery. N.E. contends we must direct the juvenile court to send a corrected notification to the school district omitting the grand theft and battery offenses and a corrected notification to the sheriff's department omitting the grand theft offense because the true findings on these offenses must be dismissed for the reasons previously asserted. In view of our conclusions in parts I and II, ante, we agree the juvenile court is required to send corrected notifications omitting the grand theft offense. No correction is required for the battery offense.
IV
Validity of Conditions of Probation
A
The restricted driving condition precludes N.E. from being "in any privately owned vehicle with more than one person under the age of 18 unless accompanied by a parent or legal guardian, or with permission of the Probation Officer." N.E. contends, the People concede, and we agree the restricted driving condition must be modified to include a knowledge requirement. (See, e.g., In re Sheena K. (2007) 40 Cal.4th 875, 890-892; People v. Leon (2010) 181 Cal.App.4th 943, 950.)
B
The restricted court access condition precludes N.E. from appearing "in Court or any courthouse unless [he is] a party in the proceedings." N.E. contends we must strike the restricted court access condition because it is overly broad. We agree.
"A probation condition, whether in an adult or juvenile case, may be challenged as unconstitutionally vague or overbroad. [Citation] . . . A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [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 defendant'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 E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Preliminarily, we note that although N.E. did not object to the restricted court access condition below, he has not, as the People assert, forfeited the overbreadth issue on appeal. Failure to object to a probation condition as vague or overly broad does not result in a forfeiture where, as here, the objection presents a facial challenge raising a pure question of law. (In re Sheena K., supra, 40 Cal.4th at p. 888; In re E.O., supra, 188 Cal.App.4th at p. 1154, fn. 1.)
We further note the People have implicitly conceded the merits of N.E.'s overbreadth claim by failing to address the merits in their brief. Moreover, two appellate courts have recently considered similar probation conditions. Both courts concluded the conditions impinged on the affected probationers' constitutional right of access to courts and were not narrowly tailored to their apparent objective of protecting victims, witnesses, and court personnel during gang-related court proceedings. In addition, both courts observed the conditions restricted the affected probationers from engaging in activities unrelated to future criminality. Furthermore, in each case, the conditions were arguably unnecessary because there was no evidence the affected probationers had engaged in or were likely to engage in the concerning conduct and the affected probationers were subject to other, unchallenged gang-related probation conditions that served the same purpose. (In re E.O., supra, 188 Cal.App.4th at pp. 1154-1155, 1157; People v. Perez (2009) 176 Cal.App.4th 380, 384-386.) These conclusions and observations apply equally in this case. Accordingly, we conclude we must strike the restricted court access condition and remand the matter back to the juvenile court to fashion a narrower condition if the juvenile court continues to find the condition necessary. (In re E.O. at p. 1157; People v. Perez, at p. 386.)
DISPOSITION
The true finding on count 2 is reversed and the restricted court access condition is stricken. The matter is remanded to the juvenile court to send corrected notices to the school district and sheriff's department reflecting the reversal of count 2; to modify the restricted driving condition to include a knowledge requirement; and, if the court continues to find a restricted court access condition necessary, to fashion a more narrowly drawn condition. (See, e.g., In re E.O., supra, 188 Cal.App.4th at p. 1157, fn. 5.) In all other respects, we affirm the judgment.
MCCONNELL, P. J. WE CONCUR: MCINTYRE, J. O'ROURKE, J.