Filed 10/16/17 In re R.S. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Appellant, R.S., a minor, was the subject of a four-count wardship petition under Welfare and Institutions Code section 602 for taking a gold necklace and money from another minor. (Welf. & Inst. Code, § 602, subd. (a).) The court sustained the petition as to robbery and attempted extortion charges, but found criminal threats and misdemeanor battery charges untrue. The court adjudged the minor a ward of the court and committed him to the juvenile detention center for 90 days with 45 days suspended pending successful school review. Among other terms and conditions of probation upon his release from the juvenile detention center, the court ordered that the minor not “illegally use or possess or associate with persons known to use drugs, narcotics, marijuana, and/or alcohol,” and not “knowingly frequent places where drugs, narcotics, marijuana and/or alcohol are being used illegally.”

On appeal, the minor contends the court erred under Penal Code section 654[1] by punishing him for both the robbery and attempted extortion offenses. He also contends the probation condition prohibiting him from associating with persons who use marijuana and alcohol is unconstitutionally overbroad. We conclude the trial court properly punished the minor for both the robbery and the attempted extortion offenses. We modify the probation condition to prohibit the minor from associating with persons known to unlawfully use or possess marijuana or alcohol. As so modified, the dispositional order is affirmed.

FACTS AND PROCEEDINGS

On February 18, 2016, 13-year-old A.V. was at a park in Lathrop with his friend F.H. and several other kids. A.V. was wearing F.H.’s gold necklace at the time. The minor, who was also 13 years old, was also at the park. A.V. was friends with the minor’s sister.

As A.V. sat next to the basketball court, the minor told him that the gold necklace was fake. A.V. responded it was real. After the exchange, A.V. played basketball for a while before calling his father for a ride. While A.V. waited on a bench for his father to arrive, the minor approached him and demanded the gold necklace, saying, “Nigga, you gonna give me the chain right now . . . or else me and my friends are going to jump you. I got my boys coming right now.” As the minor spoke, A.V. saw two boys, M.G. and A.W. walking towards him. The minor held out his hand, and said, “Give me the fucking chain.” A.V. then handed him the gold necklace because he was afraid they would jump him.

The minor walked away with M.G. and A.W., showing them the necklace. When they were about 29 feet away, A.V. asked the minor to stop. A.V. told the minor that he needed the necklace back because it belonged to his friend F.H. The minor said, “I don’t give a fuck about [F.H.]” He then demanded $60 or else he and his friends would “find [A.V.]” When A.V. said he did not have $60, the minor told him to ask his parents. A.V. asked if he and F.H. could each pay $30, and the minor replied, “I don’t want [F.H.’s] money. I want your money.” He added, “If my name comes up at all, I’m going to beat your ass.” A.V. then asked if he could bring $40, and the minor responded yes and handed him the necklace.

When A.V.’s father arrived at the park, A.V. told him that he had lost a bet and owed the minor money. A.V.’s father gave him $10, which A.V. then gave to the minor. The minor told him to “bring the rest by Saturday.” He warned him, “If you’re not here Saturday, we’re going to jump you.”

A.V. and his father returned home, and A.V. told his older brother R.V., and R.V.’s girlfriend what happened at the park. R.V. and his brother’s girlfriend decided to go to the park to retrieve the money from the minor, and A.V. went with them. R.V. confronted the minor while he was playing basketball with several of his friends. The group immediately surrounded R.V. and several of them started hitting him. R.V. fought back, but was eventually forced to the ground where the group kicked and punched him.

At that point, A.V.’s father showed up and broke up the fight. As A.V. and his family walked away, the minor shouted, “You caused this. You shouldn’t have told,” blaming the melee on A.V.

R.V., his girlfriend, and A.V. got in a car and followed the minor and his friends from the park to a nearby house while R.V.’s girlfriend called the police. They directed officers to the house and left.

The house where the minor and his group returned from the park belonged to M.G.’s mother. M.G.’s mother told officers that M.G. had just come home with his friends even though M.G. claimed he had been home the entire day. After M.G.’s mother directed them to the backyard, officers found five people, including the minor and A.W. A short time later, A.V. identified the people involved, including the minor, in a field showup.

M.G. and C.M., another boy present at the park that day, testified on the minor’s behalf. They both testified that they never saw the minor leave or speak to anyone at the park, and both denied ever seeing the minor with a gold necklace. According to M.G. and C.M., A.V.’s older brother initiated the fight at the park.

Deputy Chris Ly testified that F.H. told him he went back to the park and found the gold necklace in the grass by the basketball court the day after the fight. Deputy Ly did not find $10 on the minor when he arrested him.

The San Joaquin County District Attorney filed a Welfare and Institutions Code section 602 wardship petition alleging the minor had committed robbery (§ 211), attempted extortion (§ 524), made criminal threats (§ 422), and committed misdemeanor battery (§ 242). The minor denied the allegations and the case was set for a contested jurisdictional hearing.

Following the jurisdictional hearing, the court sustained the petition as to the robbery and attempted extortion charges, but found the criminal threats and misdemeanor battery charges untrue. At a subsequent dispositional hearing, the court adjudged the minor a ward of the court and set the maximum term of imprisonment at five years eight months. The minor was committed to the juvenile detention center for 90 days with 45 days suspended pending successful school review. Among other terms and conditions of probation upon his release from juvenile hall, the court ordered that the minor not “illegally use or possess or associate with persons known to use drugs, narcotics, marijuana, and/or alcohol,” and not “knowingly frequent places where drugs, narcotics, marijuana and/or alcohol are being used illegally.” The minor timely appealed.

DISCUSSION

I

Penal Code Section 654

Although he contends it is unclear whether the court punished him for both the robbery and attempted extortion offenses, the minor argues that he robbed and attempted to extort A.V. during a single course of conduct for which he may only be punished once under section 654. We disagree.[2]

Preliminarily, as the People point out, the court set the maximum term of imprisonment at five years eight months. (Welf. & Inst. Code, § 726, subd. (d)(1), (3).) Because the punishment for second degree robbery is two, three, or five years (§ 213, subd. (a)(2)), it is apparent that the minor’s maximum term of imprisonment includes consecutive terms on each of his offenses. We need not remand the matter for further dispositional findings as the minor requests, and instead proceed to consider whether section 654 precludes dual punishment under the circumstances.

Section 654 provides in pertinent part: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) The statute does not prohibit multiple convictions for the same conduct, only multiple punishments. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “In such a case, the proper procedure is to stay execution of sentence on one of the offenses. [Citation.]” (Ibid.)

In any section 654 inquiry, the court must initially ascertain the defendant’s objective and intent. (People v. Porter (1987) 194 Cal.App.3d 34, 38 (Porter).) “ ‘If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (Ibid.) “Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it. [Citation.]” (Ibid.)

The record in this case supports the trial court’s implicit finding that the robbery of A.V. and the subsequent attempted extortion involved multiple objectives even though they may have shared common acts or were otherwise parts of an indivisible course of conduct. The court could reasonably infer that the minor initially planned only to rob A.V. of the gold necklace after A.V. told him that it was real, but thereafter came up with a new idea once A.V. asked him for the necklace back because it belonged to F.H: extort money from him.

We find the minor’s contention that he only had the single objective of taking A.V.’s property unpersuasive. Similar reasoning was rejected in Porter, supra, 194 Cal.App.3d at pages 38 through 39, where the defendant forced the victim to drive to an automatic teller machine to withdraw money after initially finding less than $10 in the victim’s wallet. (Id. at p. 36.) The court rejected the defendant’s argument that section 654 precluded double punishment for robbery and kidnapping for the purpose of robbery since he only harbored the single objective of robbing the victim of money. (Id. at pp. 37-38.) In the court’s view, “What began as an ordinary robbery turned into something new and qualitatively very different. No longer satisfied with simply taking the contents of the victim’s wallet, appellant decided to forcibly compel the victim to drive numerous city blocks to a bank where, only with the victim’s compelled assistance, could appellant achieve a greater reward.” (Id. at pp. 38-39.)

The same principle applies here. Like in Porter, the minor was no longer satisfied with taking the gold necklace so he decided to threaten A.V. with bodily harm in order to induce him into giving him money. (See also People v. Phan (1993) 14 Cal.App.4th 1453, 1466 [§ 654 did not bar multiple punishment for robbery of mother and assault of eight-year-old son where the defendant took money from the mother and then threatened to cut off her son’s hand if she did not give him more money].)

The offenses were also temporally separated, which gave the minor the opportunity to reflect on his actions concerning the robbery and to form the intent to extort money from A.V. (People v. Petronella (2013) 218 Cal.App.4th 945, 963-964 [the defendant properly punished for multiple counts of insurance fraud where he had time in between false statements to reflect and renew his intent].) The minor obtained the gold necklace from A.V. and walked away with his friends. It was only after A.V. ran back to him and asked him for the necklace that the minor attempted to extort money from A.V. The offenses were thus separated by time so as to afford the minor the opportunity of reflection.

The minor’s reliance on People v. Guzman (1996) 45 Cal.App.4th 1023, 1027-1028, where the court found that section 654 barred punishment for both a burglary in which the defendant took a motorcycle from the victim’s garage and a subsequent robbery in which the defendant used force against the pursuing victim who attempted to stop him, is misplaced. There, the defendant in both instances had the single objective of taking the motorcycle. Here, by contrast, the minor had the intent to deprive A.V. of the gold necklace using force or fear, and then later formed the intent to extort money from him under threat of bodily harm.

Whether the minor had reached a place of temporary safety by walking 29 feet from A.V. is immaterial to whether he had an independent criminal objective in extorting money from A.V. “The moment at which a defendant committed all of the elements of an offense is immaterial in applying Penal Code section 654.” (People v. Perry (2007) 154 Cal.App.4th 1521, 1527.)

The evidence supports the court’s implied finding that the minor acted according to two separate criminal objectives. The minor was thus properly punished for both the robbery and attempted extortion offenses.

II

Probation Condition

Although he did not object below, the minor contends the probation condition ordering him not to associate with persons known to use, possess, or traffic drugs, narcotics, marijuana, or alcohol is unconstitutionally overbroad and should be modified because it prohibits him from associating with persons who legally use alcohol and marijuana. We agree the condition must be modified.

Ordinarily, the failure to make a timely objection to a probation condition forfeits the claim of error on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 881.) Where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, however, it may be treated as a question of law which is not forfeited by failure to raise it in the trial court. (Id. at pp. 888-889 [probation condition prohibiting the defendant from associating with “anyone disapproved of by probation” was vague and overbroad despite lack of objection in the trial court].) Because the minor’s overbreadth challenge falls into the latter category—that the probation condition violates his right to freedom of association—we consider his constitutional challenge.

The court ordered the minor “not to illegal[ly] use or possess any drug, narcotic, marijuana or alcohol, or associate with persons known to you to possess or traffick [sic] in these substances or frequent places where you know they’re used unlawfully.” The minor argues that the condition is facially overbroad because it prevents him from associating with law abiding adults who use alcohol and marijuana legally and is not narrowly tailored to any reasonable purpose.

A juvenile court has wide discretion to impose reasonable probation conditions that further the ends of justice and that reform and rehabilitate the ward of the court. (In re Sheena K., supra, 40 Cal.4th at p. 889.) A condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under supervision of the juvenile court. (Ibid.)

Nevertheless, a juvenile court does not have unfettered discretion to impose probation conditions on minor wards. A probation condition that limits a minor’s constitutional rights must “closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K., supra, 40 Cal.4th at p. 890.) The freedom of association, moreover, is “undoubtedly [a] ‘constitutional entitlement[].’ ” (People v. Stapleton (2017) 9 Cal.App.5th 989, 995; In re Frank V. (1991) 233 Cal.App.3d 1232, 1242-1243 [probation condition limiting juvenile’s right of association to those approved by his probation officer or parents did not violate constitutional right to freedom of association].)

The condition at issue here essentially contains three components: (1) the minor’s illegal use and possession of drugs and alcohol; (2) the minor’s association with people known to possess those substances; and (3) the minor’s presence at places where drugs and alcohol are used unlawfully. While the first and third components require illegal or unlawful conduct, the second component does not. Although the People argue such a condition is implied given the clause’s juxtaposition between the two requiring illegal conduct, the language itself does not delineate between the legal or illegal use of alcohol or marijuana, two substances that may be ingested lawfully in California under certain circumstances. (See, e.g., Bus. & Prof. Code, § 25658, subd. (b); Health & Saf. Code, § 11357.) The second component thus casts a broad net over otherwise legal activity. To ensure the constitutional validity of the condition, we shall modify it by inserting the word “unlawful” in the second clause of the condition so that the minor is prohibited from illegally using or possessing any drug, narcotic, marijuana or alcohol, or associating with persons known to unlawfully use, possess, or traffic in these substances, or frequenting places where he knows they are used unlawfully.

DISPOSITION

The dispositional order is modified so the probation condition reads: “The minor is ordered not to illegally use or possess any drug, narcotic, marijuana, or alcohol, or to associate with persons known to unlawfully use, possess, or traffic in these substances, or to frequent places where he knows they are used unlawfully.” As so modified, the dispositional order is affirmed.

NICHOLSON , Acting P. J.

We concur:

HULL , J.

MAURO , J.