Opinion
A131621
12-27-2011
In re RICHARD D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RICHARD D., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. SJ11016364)
A February 2011 juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a))alleged that 16-year-old Richard D. (appellant) committed robbery (Pen. Code, § 211) (count 1) and attempted robbery (Pen. Code, §§ 211, 664) (count 2), both with personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)); and receiving stolen property (Pen. Code, § 496, subd. (a)) (count 3). After appellant admitted counts 2 and 3, count 1 and the weapon enhancements attendant to counts 1 and 2 were dismissed. Appellant was declared a ward of the court, removed from the custody of his parents, and placed on probation subject to various conditions. On appeal from the dispositional order, appellant contends the court erred in failing to designate the sustained count 3 as a misdemeanor or felony and in imposing several probation conditions which are unconstitutionally overbroad and/or vague.
All undesignated section references are to the Welfare and Institutions Code.
BACKGROUND
In the early morning of January 29, 2011, appellant and minors Clifford M. and Gerardo G. decided to find someone to rob. The three minors retrieved a BB gun from appellant's home. Thereafter, the victims, Christian H. and Levi S., were walking to a friend's house when they noticed a red minivan. As the minivan drove past them, one of the victims heard a sound he recognized as a BB gun being fired from the minivan and felt a BB hit him in the rear left shoulder. The minivan stopped and appellant leaned out the front passenger window and asked, "Where you from?" When that victim answered, "By the lake," appellant exited the minivan carrying the BB gun and told the victims to empty their pockets. When the victims said they did not have anything, Clifford got out of the minivan with a baseball bat and told the victims to empty their pockets. Appellant told Clifford to give him the bat because he was going to "beat their asses." Clifford kept the bat and again told the victims to empty their pockets. One of the victims gave Clifford his wallet, iPod Touch, and backpack; Clifford and appellant returned to the minivan with the stolen property and fled.
While the police were interviewing the victims at a nearby convenience store, one of the victims saw the minivan. The police followed the minivan, stopped it and detained appellant, Clifford, and Gerardo. The victims identified appellant as the person with the BB gun and identified Clifford as the person who had the bat and took the victim's property. Inside the minivan the police found a broken BB gun, a baseball bat, and a wallet and backpack belonging to one of the victims. The stolen iPod was recovered from Clifford's pants pocket.
The probation department's dispositional report noted that appellant has the tattoos "Family" and "First" on his lower arms, which he obtained at age 16. Appellant said the tattoos are not gang-related and he is not a gang member. Although appellant had no history of delinquency, the probation officer was concerned that appellant may have been exposed to gang members and the gang lifestyle through his cousin and coparticipant Clifford.
DISCUSSION
I. The Court Erred in Failing to Designate Count 3 as a Misdemeanor or Felony
Appellant contends, and the People concede, that the matter must be remanded to the juvenile court for an express felony/misdemeanor determination regarding count 3 (receiving stolen property). The parties also agree the matter must be remanded because the court erred in failing to set a maximum term of confinement when it ordered out-of-home placement for appellant.
Receiving stolen property (Pen. Code, § 496) is a "wobbler" offense, which may be sustained as a misdemeanor or felony.
A. The Court's Failure to Declare Count 3 a Misdemeanor or Felony
Section 702 provides, in relevant part: "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."
Similarly, California Rules of Court, rule 5.778(f)(9) (required jurisdictional findings upon admission) provides that following an admission or no contest plea in a section 602 matter, the court must make written findings regarding "the degree of the offense and whether it would be a misdemeanor or felony had the offense been committed by an adult. If any offense may be found to be either a felony or misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing." Rule 5.795(a) (required dispositional findings) imposes the same requirement, if not previously determined.
All further rule references are to the California Rules of Court.
In In re Manzy W. (1997) 14 Cal.4th 1199 the Supreme Court explained that section 702 "requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult." (Id. at p. 1204.) "[N]either the pleading, the 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.] Instead, 'the crucial fact is that the court did not state at any of the hearings that it found the [offense] to be a felony.' [Citation.]" (Id. at p. 1208, citing and quoting In re Kenneth H. (1983) 33 Cal.3d 616, 619-620, fn. omitted.)
Here, the section 602 petition alleged count 3 as a felony. At the jurisdictional hearing the court stated that as to count 3, "the most time [appellant] could be locked up is three years and eight months." After appellant admitted count 3 pursuant to a negotiated disposition, the court found he committed "possession of stolen property, 496 felony as charged in count 3." The jurisdictional minute order, dispositional report and dispositional minute order characterized appellant's admission of count 3 as a felony. However, there is no indication the court exercised its discretion and expressly declared the count 3 allegation to be a felony or misdemeanor. (See In re Manzy W., supra, 14 Cal.4th at p. 1208; In re Kenneth H., supra, 33 Cal.3d at pp. 619-620.)
Remand is not necessarily required when a juvenile court fails to comply with section 702. (In re Manzy W., supra, 14 Cal.4th at p. 1209.) "[S]peaking generally, the 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." (Ibid.) In In re Manzy W., the Supreme Court concluded that the failure to comply with section 702 was not harmless where nothing in the record established the juvenile court was aware of its discretion to sentence an offense as a misdemeanor rather than a felony. (In re Manzy W., at pp. 1210-1211.)
Here, the court's statements and actions do not demonstrate that it was aware of and exercised its discretion to determine the felony or misdemeanor nature of the receipt of stolen property charge. While the court's statements support the conclusion that it was aware appellant was charged with and admitted a felony offense, its reiteration of the felony charge contained in the juvenile delinquency petition does not necessarily reflect that the court was aware of and consciously exercised its discretion to declare the grand theft offense a felony instead of a misdemeanor. As conceded by the People, under these circumstances remand is required so that the court may determine the character of the receipt of stolen property offense and declare that it considered whether to treat the offense as a misdemeanor or felony.
B. The Court's Failure to Specify the Maximum Term of Confinement
When a minor is removed from his parent's or custodian's physical custody as a result of criminal violations sustained under section 602, the court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses. (§ 726, subd. (c); rule 5.795(b); In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Here, the court stated the maximum term of confinement before appellant admitted the count 2 and 3 offenses, and before it ordered appellant's out-of-home placement. Consequently, the parties are correct that on remand the court must make a maximum term of confinement determination.
II. The Challenged Probation Conditions Must Be Modified
Appellant requests that this court modify the following three conditions of his probation which he asserts are unconstitutionally vague and/or overbroad:
Despite appellant's failure to challenge these probation conditions below, his constitutional claim is not forfeited on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 888.)
(1) "Do not use or possess any deadly weapon or explosive device."
(2) "Minor is not to wear or display items or emblems reasonably known to be associated with or symbolic of gang membership."
(3) "Minor is not to possess any graffiti materials, or graffiti-related paraphernalia, including but not limited to spray paint, paint or ink markers, metal scribers, aerosol nozzles, or other material used to deface property." Section 730, subdivision (b) provides in part: "The 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."
The People argue that since this matter must be remanded for a determination of whether the receipt of stolen property count is a felony or misdemeanor and for setting of the maximum time of confinement, appellant's probation condition claims should be raised in the first instance in the juvenile court on remand. Since the parties have fully briefed the probation condition claims, we conclude that our review of those claims is in the interest of judicial economy.
A. Condition Prohibiting Use or Possession of any Deadly Weapon or Explosive Device
Appellant argues the probation condition that he "not use or possess any deadly weapon or explosive device" is unconstitutionally overbroad because it does not require that he have any knowledge that he is in possession of, or using, a deadly weapon or explosive device. Thus, he asserts the condition "encompasses both voluntary and involuntary or unwitting action" on his part. He requests that the condition be modified to state: "Do not knowingly use or possess any deadly weapon or explosive device."
A probation condition that limits constitutional rights will be deemed "constitutionally overbroad when it substantially limits a person's rights and those limitations are not closely tailored to the purpose of the condition. [Citation.]" (People v. Harrison (2005) 134 Cal.App.4th 637, 641.) To withstand a vagueness challenge, a probation 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.' " (In re Sheena K., supra, 40 Cal.4th at p. 890.) Thus, a probation condition that forbids certain conduct, but that lacks a knowledge requirement, is invalid because it is impermissibly vague and overbroad. (See, e.g., In re Justin S. (2001) 93 Cal.App.4th 811, 816.) In such circumstances, the appropriate remedy is to modify the condition to add a knowledge requirement. (Ibid.) The People make several arguments in rejoinder, which we address seriatum.
Appellant expressly does not challenge the deadly weapon condition on vagueness grounds.
First, in reliance on People v. Patel (2011) 196 Cal.App.4th 956 (Patel), the People argue that no modification of probation conditions to include a knowledge requirement is necessary. In Patel, the Third District considered whether a probation condition that the defendant not drink alcohol, possess it, or be in a place where it was the chief item of sale was invalid because it lacked a knowledge requirement. (Id. at p. 959.) The court expressed its frustration with routine challenges to probation conditions lacking a knowledge requirement. In the interests of "fiscal and judicial economy," the court adopted a new procedure: "there is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter. As with contracts generally, this should be considered a part of the conditions of probation ' "just as if [this was] expressly referred to and incorporated." ' [Citations.] We also do not discern how addressing this specific issue on a repetitive case-by-case basis is likely to dissuade a probation officer inclined to act in bad faith from finding some other basis for harassing an innocent probationer. As a result, we . . . now give notice of our intent to henceforth no longer entertain this issue on appeal, whether at the request of counsel or on our own initiative. We construe every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly. It will no longer be necessary to seek a modification of a probation order that fails to expressly include such a scienter requirement." (Id. at p. 960.)
In People v. Moses (2011) 199 Cal.App.4th 374, 380-381, the Fourth District declined to follow the Patel approach, choosing instead to modify probation conditions to include a knowledge requirement. Like the Patel court, we too are frustrated by the frequency of appeals challenging probation conditions lacking a knowledge requirement. However, like the Moses court, we think the better approach is to modify certain challenged probation conditions in this case.
Second, the People cite In re R.P. (2009) 176 Cal.App.4th 562, 569, for the proposition that " 'the term "dangerous or deadly weapon" is a matter of common knowledge and everyday experience—particularly to a juvenile who was already found to have used one.' " In re R.P. rejected a vagueness challenge to a probation condition which prohibited the minor from "possessing any 'dangerous or deadly weapon.' " (Id. at p. 565; see id. at pp. 565-568.) The People assert that, having used a BB gun and baseball bat in committing the robbery and attempted robbery, appellant should already know what constitutes a deadly weapon. However, as appellant notes, In re R.P. is inapposite because appellant's overbreadth objection does not relate to the definition of the terms deadly weapon and explosive device. His sole overbreadth contention is that the condition does not contain a knowledge requirement and, therefore, he could be punished for his unwitting or unknowing possession of a deadly weapon or explosive device.
Similarly, the People's argument that since "explosive device" is defined by statute, appellant would reasonably know what constitutes an explosive and therefore, inclusion of a knowledge requirement is unnecessary, does not address the possibility of appellant's unknowing possession of an explosive device.
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In People v. Freitas, (2009) 179 Cal.App.4th 747, the court modified a condition prohibiting the probationer from possessing a gun or ammunition to include a knowledge requirement: "the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition." (Id. at p. 752.)
Similarly, we conclude the probation condition fashioned by the juvenile court is overbroad in that it restricts his unwitting or unknowing possession of a deadly weapon or explosive device. We, therefore, remand the matter with directions to modify the probation condition to require that any knowing use or possession is prohibited.
B. Condition Prohibiting the Wearing or Displaying of Gang-Related Indicia
Next, appellant contends that the condition that he "not . . . wear or display items or emblems reasonably known to be associated with or symbolic of gang membership" is unconstitutionally vague because it fails to require that he, himself, be possessed of knowledge as to the items or emblems associated with or symbolic of gang membership, and does not give adequate notice as to what items or emblems he must avoid. Appellant requests that the condition be modified to state: "Minor is not to wear or display items or emblems reasonably known to him to be associated with or symbolic of gang membership."
The People assert, "appellant is not unfamiliar with criminal street gangs and it would be speculative to conclude he did not know what constitutes proscribed gang indicia." However, citing People v. Kim (2011) 193 Cal.App.4th 836 and the cases cited therein, the People concede that a knowledge requirement is required regarding probation conditions which restrict the wearing, possession or display of gang-related clothing, insignias, emblems, etc. (Id. at pp. 844-845.) Consequently, the People do not object to inclusion of a knowledge requirement in the challenged condition. We agree the probation condition lacks the requisite knowledge requirement and therefore is unconstitutionally vague. We, therefore, remand the matter with directions to modify the probation condition in the manner suggested by appellant.
C. Condition Prohibiting Possession of any Graffiti Materials or Paraphernalia
Finally, appellant contends the probation condition that he "not . . . possess any graffiti materials, or graffiti-related paraphernalia, including but not limited to spray paint, paint or ink markers, metal scribers, aerosol nozzles, or other material used to deface property," is unconstitutionally vague and overbroad.
Appellant argues that the condition is overbroad because it lacks a knowledge requirement, exposing him to punishment for the unwitting or involuntary possession of the offending materials. He also argues that the terms "graffiti materials" and "graffiti-related paraphernalia" are vague in failing to give him adequate notice of precisely what material he may not possess. He asserts that without the requested modification, "any object capable of writing or etching, from a ballpoint pen to a butter knife, could be considered graffiti material depending on the intent of the individual possessing the items."
Appellant requests that the condition be modified to state: "Minor is not to knowingly possess any marking substance with the intent to use such marking substance to deface property, including but not limited to spray paint, paint or ink markers, metal scribers, or aerosol nozzles, without permission of the probation department, his school, his employment or his parents."
The People again rejoin that although they consider a modification to include a knowledge requirement unnecessary, they do not object to that modification. Having previously rejected this argument, we agree that the condition must be modified to include a knowledge requirement. The People also argue that appellant's suggested modification to add an "intent to commit vandalism" requirement is unnecessary because Penal Code section 594.2 already punishes possession of a graffiti making implement "with the intent to commit vandalism or graffiti," and adding an "intent" element would be coextensive with the obey-all-laws term. They further assert that the record does not indicate a need for appellant's "permission" from various persons to possess graffiti making implements and suggest that appellant's proposed permission-exception modification not be addressed by this court but by the trial court on remand.
Although the record before us provides no evidence that appellant has previously engaged in vandalism or unauthorized graffiti, it does establish concern by the probation department regarding appellant's exposure to gang members and the gang lifestyle. Based on the minimal record before us, we conclude that the trial court is in the best position to consider appellant's suggested modifications of this possession of graffiti material or paraphernalia condition. We therefore direct the court on remand to modify this condition to include a knowledge requirement and to consider appellant's other suggested modifications to this condition.
DISPOSITION
The matter is remanded to the juvenile court for the express declaration required by section 702 regarding the count 3 receiving stolen property, for the court's determination of the maximum term of confinement, and for the court's consideration of appellant's suggested modifications to the probation condition regarding possession of graffiti materials or graffiti paraphernalia. In addition, the juvenile court is directed to modify two of the challenged probation conditions in both the disposition and order of probation as follows:
The condition prohibiting appellant's use or possession of any deadly weapon or explosive device is modified to state, "Minor is not to knowingly use or possess any deadly weapon or explosive device."
The condition prohibiting appellant from wearing or displaying gang-related indicia is modified to state, "Minor is not to wear or display items or emblems reasonably known to him to be associated with or symbolic of gang membership."
As so modified, the dispositional order is affirmed.
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SIMONS, J.
We concur.
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JONES, P.J.
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BRUINIERS, J.