In Jesus O.

Filed 7/17/07 In Jesus O. CA2/7

Opinion following remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary A. Polinsky, Temporary Judge. (Pursuant to Cal. Const., art VI, 21.) Affirmed in part, modified in part, and remanded with directions.

Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Stephanie Brenan, Paul M. Roadarmel, Jr., Michael R. Johnsen and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

The juvenile court sustained allegations of a Welfare and Institutions Code section 602 petition alleging the juvenile committed grand theft person and attempted second-degree robbery. The juvenile appealed from the courts order of wardship, claiming the evidence was insufficient to support a finding of either offense. He also claimed a probation condition ordering him to stay away from areas where users congregate was unconstitutionally vague and overbroad. The juvenile further contended the court erred in failing to declare on the record whether the grand theft person wobbler offense would be a misdemeanor or felony for an adult convicted of the same offense. Finally, the juvenile argued the maximum term of commitment set by the court should be stricken as both erroneous and unnecessary where the disposition the court ordered was home on probation.

In our initial decision we concluded the evidence did not support a finding the juvenile took the property from the person as is required for the offense of grand theft person. We thus reduced the offense to misdemeanor petty theft, a lesser included offense of grand theft person. We also modified the courts order with respect to the challenged probation condition and affirmed the courts order in all other respects. The Supreme Court granted the Peoples petition for review. In In re Jesus O.[1] the Supreme Court concluded the evidence of the juveniles intent to steal, plus the later taking of property which had been on the victims person, was, in combination, sufficient to sustain the grand theft person offense. Accordingly, the Supreme Court reversed and remanded the matter to this court for further proceedings consistent with its opinion.

On remand the parties filed letter briefs addressing omitted and other issues. We now affirm the juvenile courts findings sustaining the allegations of the petition.

However, we remand the matter for an express declaration whether the grand theft person offense would be punishable as a felony or misdemeanor in the case of an adult. In addition, we will again modify the courts order with respect to the challenged probation condition.

FACTS AND PROCEEDINGS BELOW

Prosecution Evidence:

Around 5:30 in the evening on July 5, 2004 Mario H. and his middle school companions, Alex S., Juan C. and George G., went to a McDonalds restaurant on Vose Street in Van Nuys. Appellant, Jesus O., and his friend, Roberto A., sat at a table in the corner. Mario knew appellant and recognized Roberto from school. Mario and his friends sat at a table in the middle of the restaurant.

Roberto approached Mario and claimed A. K. He announced A. K. and Assassin Kings. Mario responded by saying Whatever. Roberto asked Mario, What are you staring at? Roberto asked Mario whether he had a problem.

Mario believed A. K. was a gang. After Mario and his friends finished eating they left the restaurant. Appellant and Roberto followed them out. Mario and his friends walked to an alley behind McDonalds to lose appellant and Roberto. However, when appellant and Roberto spotted them in the alley they yelled, Hey, hold on. Appellant and Roberto set their drink containers down and approached Mario and his friends.

First Roberto and then appellant loudly announced Assassin Kings. Roberto asked Mario if he had any money.[2] Mario replied, I aint got no money. A second later appellant sucker punched Alex in the mouth. Mario pulled Alex behind him to protect Alex from further assault. Appellant and Roberto began pushing Mario and a fight broke out.

Juan and Roberto began fighting. They punched and kicked each other. Juan grabbed Robertos head and placed him in a headlock. George punched Roberto while in this position. Roberto wrestled out of Juans headlock and grabbed Juans head. Juan grabbed Robertos throat to choke him and then threw Roberto against the wall. At some point during the struggle Juans necklace broke and wound up in Robertos hand. Juan grabbed his necklace from Roberto and walked over to Mario and appellant.

In the meantime Mario and appellant had been fighting and wrestling on the ground. When Juan and Roberto joined them Mario had managed to immobilize appellant by holding him in a sort of bear hug from behind. Mario kept telling appellant to calm down. Roberto ordered Mario to let appellant go. Roberto pulled out a knife and unfolded its three to four inch blade. He told Mario, Im going to shank you, Im going to fucking shank you.

Mario and his friends got scared. Juan beseeched Mario to let appellant go and just get out of here. The four boys ran down the alley and hopped a fence. Mario then checked his pants pocket and noticed his cell phone was missing. Mario did not want to go back to retrieve his cell phone, afraid they would get into another fight. Juan saw Marios cell phone lying on the ground in the alley. Then Juan saw Roberto pick up the phone and put it in his pocket.

Defense Evidence:

Juan Hernandez was working in Mendez Market on July 5, 2004. Around 5:30 p.m. he went into the alley behind the store to take out some trash. He saw six boys fighting in the alley 30 to 35 feet away. A minute later they all ran away. Hernandez did not see any boy with a knife. Hernandez did not hear any of the boys make any comment.

Co-defendant Roberto testified at the adjudication hearing. He testified Mario, Alex, George and Juan were making derogatory comments while he and appellant were eating at the McDonalds. Mario and his friends made fun of Robertos nose. They also made unpleasant comments about appellants disfigured eyelids. The boys called appellant, ve ciego or blind and made fun of how he looked. Roberto asked, What are you looking at? Roberto admitted he invoked the name of his crewthe Assassin Kingsbecause he was angry and wanted to scare the boys who were taunting them. Roberto explained Assassin Kings was not a tagging crew but was a regular crew.

Roberto denied he and appellant followed the boys out of the McDonalds restaurant. However, he testified when they saw Mario and his friends in the alley, he and appellant dumped out their sodas and walked up to them.

Roberto denied either he or appellant ever asked Mario or his friends for money. He testified appellant got into an argument with one of the boys over an earlier slight and a fight broke out. Roberto agreed appellant had thrown the first punch. Roberto was about to help appellant when another one of the boys attacked him and they started fighting. When he saw Mario getting the better of appellant Roberto yelled, Let him go, let him go. By this time appellant already had a black eye. Roberto tried to stop the fight by pretending to have a knife and threatening to shank them with his pretend knife. Roberto testified it was just a bluff he used to get Mario to release appellant.

After the fight ended and Mario and his friends ran away Roberto saw a cell phone lying on the ground. He picked the phone up because he wanted it. Roberto apparently changed his mind and threw the cell phone into the trash. When appellant said he wanted the phone, Roberto retrieved the cell phone from the trash and gave it to appellant. Later in the day appellant gave the phone back to Roberto, who gave it to a girl, and the girl in turn gave it to Robertos father. Robertos father turned the cell phone over to the police.

A Welfare and Institutions Code section 602 petition charged appellant in count one with grand theft person,[3] in counts two and three with attempted second-degree robbery,[4] and in count four with second-degree robbery.[5] In closing arguments following the contested adjudication hearing appellants counsel argued the evidence was insufficient to sustain any of the allegations of the petition. In response, the prosecutor argued, this is a classic case of aiding and abetting. Each of these minors was aiding. . . . The juvenile court agreed with the prosecutors theory, stating, [e]ach of them was a principal. One made the demands, the other approached. I understand . . . .

The juvenile court sustained the allegations of counts one and two of the petition and declared appellant a ward of the court. In its minute order for the day, the court indicated the grand theft person offense was a felony and the attempted second-degree robbery offense alleged in count two was a misdemeanor.[6] The juvenile court dismissed counts three and fourone of the attempted second-degree robbery counts and the second-degree robbery charge. At disposition, and after a period in juvenile hall, the court ordered appellant home on probation. The court set a theoretical maximum period of confinement of four years and four months.

DISCUSSION

I. SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURTS FINDING APPELLANT COMMITTED ATTEMPTED SECOND-DEGREE ROBBERY.

Appellant contended the evidence was insufficient to support the finding he committed an attempted robbery of Mario. In our initial opinion we found the record contained sufficient evidence to support the finding he aided and abetted the attempted robbery. We reaffirm this conclusion.

II. THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JUVENILE COURTS FINDING APPELLANT COMMITTED GRAND THEFT PERSON.

Appellant still contends the record evidence is insufficient to support the courts finding he committed grand theft person.

In In re Jesus O. the Supreme Court rejected appellants argument. The court noted the evidence showed appellant intended to steal when the assault began.[7] This evidence of larcenous intent, plus the taking of the cell phone after it had become separated from the victims person as a result of the juveniles actions was sufficient evidence, in combination, to sustain the grand theft person finding. The In re Jesus O. court explained, In this case, there was evidence that, while the telephone was still on Marios person, the juvenile asked him if he had any money. This evidence supports a finding that the juvenile and his cohort intended to steal property of some kind, even if not specifically the telephone, when the assault began, i.e., when the telephone was on Marios person. This generalized intent to steal at the time the telephone was on the victims person satisfies the larcenous intent element of grand theft.[8] This evidence of appellants larcenous intent, plus the evidence the property taken had been physically connected to the victim before the assault began, was sufficient to sustain the grand theft person finding.[9]

As an intermediate appellate court we are bound to follow the decisions of this states highest court.[10] Accordingly, in following In re Jesus O. we necessarily find the evidence sufficient to sustain the finding of grand theft person.

III. REMAND TO THE JUVENILE COURT IS REQUIRED FOR AN EXPRESS DECLARATION WHETHER THE WOBBLER OFFENSE OF GRAND THEFT PERSON WOULD HAVE BEEN PUNISHABLE AS A MISDEMEANOR OR FELONY FOR AN ADULT CONVICTED OF THE SAME OFFENSE.

Welfare and Institutions Code section 702 directs: 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 misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

The Supreme Court in In re Manzy W.[11] described this statutory language as unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.[12] The court emphasized the requirement of a declaration was mandatory, not merely directory. [Welfare and Institutions Code] section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.[13]

Nevertheless, when a juvenile court violates this mandatory duty the Manzy court found remand for such a declaration need not be automatic. The court reasoned, 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. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. 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.[14]

In this case the juvenile court found appellant had committed grand theft person in violation of Penal Code section 487, subdivision (c). This is a wobbler offense which can be treated as either a felony or a misdemeanor.[15] However, the juvenile court violated its statutory duty by failing to expressly declare whether the wobbler offense would be punishable as a misdemeanor or felony for an adult convicted of the same offense.

Appellant asserts the cause should be remanded to the juvenile court for an express declaration under Welfare and Institutions Code section 702. The People concede the juvenile court erred in failing to declare whether the grand theft person wobbler offense would in the case of an adult be punishable as a felony or misdemeanor, but claim the error was harmless and therefore remand is unnecessary. The People claim a review of the entire record shows the juvenile court was aware of, and exercised, its discretion and determined the wobbler offense should be treated as a felony. The record does not support the Peoples assertion.

The fact the court imposed a felony length theoretical maximum term of confinement does not eliminate the need for remand.[16] Also, as the People properly concede, the notation in the minute order indicating the wobbler offense was to be treated as a felony is insufficient to substitute for the required finding.[17]

The courts remarks at a predisposition hearing make clear the court considered appellants and his cohorts behavior very serious. The court commented: I considered their activities to be outrageous. I find their behavior and the testimony to be even more so, and I see no reason why they shouldnt go to camp where they belong. While the courts comments indicate it felt harsh treatment may be in order, this is not the same as acknowledging it had discretion to treat the offense as a misdemeanor, but chose not to, given the seriousness of the case.[18] There is nothing in these particular comments or in any of the courts language elsewhere in the record to show the court was aware of its discretion in this regard.

Accordingly, we will remand the matter to allow the juvenile court to determine in the exercise of its discretion whether the grand theft person offense would be punishable as a felony or misdemeanor for an adult convicted of the same offense.

IV. WE WILL MODIFY PROBATION CONDITION NUMBER 21 TO INCLUDE A KNOWLEDGE REQUIREMENT.

The court imposed numerous conditions of probation. Appellant challenged probation condition number 21 which directs Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate. Appellant challenged the validity of this probation condition. He claimed condition 21 was unreasonable, unconstitutionally vague, overbroad and impinged on his right of association. He urged this court to modify condition 21 to include a knowledge requirement.

In the initial appeal the People argued appellant had waived or forfeited his right to object to the challenged probation condition on either reasonableness or constitutional grounds by his failure to object in the trial court.[19] The People defended the constitutionality of the probation condition as neither vague nor overbroad, claiming a knowledge requirement is implicit in the condition.[20]

In the meantime the Supreme Court issued its opinion in In re Sheena K.[21] In In re Sheena K. the Supreme Court acknowledged a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth could present a pure question of law, correctable on appeal without having to examine factual findings in the particular sentencing record, and without having to remand the matter for further findings by the juvenile court.[22] In this situation, a ward does not forfeit a claim a probation condition is vague or overbroad by failing to raise the issue in the juvenile court.[23]

In their letter brief following remand the People now concede the constitutional issue in this case presented a pure question of law and for this reason appellant did not forfeit his claim probation condition number 21 was unconstitutionally vague and overbroad. Thus, the People and appellant now both agree this court should modify the condition to include a knowledge requirement.

Consistent with the Supreme Courts decision in In re Sheena K. and with our original treatment of the issue, we will again modify the probation condition to expressly include a knowledge requirement.[24]

V. RECONSIDERATION OF APPELLANTS THEORETICAL MAXIMUM TERM OF CONFINEMENT IS UNNECESSARY BECAUSE IT HAD NO LEGAL EFFECT.

At disposition, and after a period in juvenile hall, the court ordered appellant home on probation. The court set a theoretical maximum period of confinement of four years and four months.

In the original appeal appellant argued the juvenile courts imposition of the high term without proper jury findings constituted error under Blakely v. Washington.[25] He requested this court to either strike the maximum term of confinement as unnecessary under Welfare and Institutions Code section 726, subdivision (c),[26] or to remand the matter to the juvenile court to recalculate the maximum term of confinement consistent with the Blakely decision.

The juvenile court was not required to set any maximum term of confinement because appellant was ordered home on probation.[27] For this reason, the term, however calculated, did not prejudice appellant because it did not and could not affect him in any event.[28] In their supplemental briefing after remand appellant and the People now both agree the maximum term of confinement imposed by the juvenile court had no legal force or effect. They thus further agree modification of the judgment or remand to recalculate the term is unnecessary.

Because the theoretical maximum term of confinement the court imposed has no legal effect, there is no need to remand the matter for reconsideration or recalculation and the term may be disregarded.

DISPOSITION

Probation condition number 21 is modified to read, Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where persons whom you know to use illegal drugs or substances congregate. The cause is remanded with directions for the juvenile court to make an express declaration in compliance with Welfare and Institutions Code section 702 whether the grand theft person offense would be punishable as a felony or misdemeanor for an adult convicted of the same offense. In all other respects the juvenile courts order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1]In re Jesus O. (2007) 40 Cal.4th 859.

[2] At trial Juan testified both Roberto and appellant asked if he or Mario had any money.

[3] Penal Code section 487, subdivision (c).

[4] Penal Code sections 664 and 211.

[5] Penal Code section 211.

[6] It is possible the court intended the reverse because the attempted second-degree robbery offense, unlike the grand theft person offense, is strictly punishable by imprisonment in state prison. (Pen. Code, 213, subd. (b).)

[7]In re Jesus O., supra, 40 Cal.4th 859, 867.

[8]In re Jesus O., supra, 40 Cal.4th 859, 868.

[9]In re Jesus O., supra, 40 Cal.4th 859, 868.

[10]Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.

[11]In re Manzy W. (1997) 14 Cal.4th 1199.

[12]In re Manzy W., supra, 14 Cal.4th 1199, 1204.

[13]In re Manzy W., supra, 14 Cal.4th 1199, 1204, quoting In re Kenneth H. (1983) 33 Cal.3d 616, 619.

[14]In re Manzy W., supra, 14 Cal.4th 1199, 1209.

[15]In re Jorge Q. (1997) 54 Cal.App.4th 223, 238.

[16]In re Manzy W., supra, 14 Cal.4th 1199, 1209.

[17]In re Manzy W., supra, 14 Cal.4th 1199, 1207-1208.

[18] See, e.g., In re Dennis C. (1980) 104 Cal.App.3d 16, 23 [it is entirely possible that the judge simply sentenced Dennis C. as a felon without considering the possibility of sentencing him as a misdemeanant. Because of this possible oversight, we have no alternative but to remand the matter to the juvenile court for clarification.].

[19] Citing People v. Welch (1993) 5 Cal.4th 228, 237 [We therefore hold that failure to timely challenge a probation condition on Bushman/Lent grounds in the trial court waives the claim on appeal.]; In re Justin S. (2001) 93 Cal.App.4th 811, 814 [constitutional claims are pure questions of law which may be reviewed for the first time on appeal; however, to preserve for appeal the issue of the reasonableness of a condition of probation, a juvenile offender must object to it in the juvenile court. . . .]; but see, In re Jose S. (1999) 72 Cal.App.4th 168 [contentions conditions of juvenile probation were either unreasonable or unconstitutional were waived or forfeited by failing to object in the trial court].

[20] See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117 [knowledge requirement was implicit in the decree, and to the extent it might not be, the trial court would impose such a limiting construction by inserting a knowledge requirement].

[21]In re Sheena K (2007) 40 Cal.4th 875.

[22]In re Sheena K., supra, 40 Cal.4th 875, 887.

[23]In re Sheena K., supra, 40 Cal.4th 875, 889.

[24]In re Sheena K., supra, 40 Cal.4th 875, 889; see also, People v. Garcia (1993) 19 Cal.App.4th 97, 103; see also, People v. Lopez (1998) 66 Cal.App.4th 615, 628-629; In re Justin S., supra, 93 Cal.App.4th 811, 816.

[25]Blakely v. Washington (2004) 542 U.S. 296.

[26] Welfare and Institutions Code section 726, subdivision (c) provides in pertinent 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.

[27]In re Ali A. (2006) 139 Cal.App.4th 569, 574.

[28]In re Ali A., supra, 139 Cal.App.4th 569, 573 [By its express terms, . . . , section 726(c) applies only [i]f the minor is removed from the physical custody of his or her parent or guardian . . . ].