Filed 4/26/18 In re Jesus S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA


In re JESUS S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS S.,

Defendant and Appellant.
D072573

(Super. Ct. No. J240000)

APPEAL from orders of the Superior Court of San Diego County, David M. Rubin and Roderick Ward Shelton, Judges. Affirmed.
The Law Offices of Aaron J. Schechter and Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Heidi T. Salerno and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found true allegations that Jesus S. assaulted Sean L. with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with enhancements that he caused great bodily injury and the crime was a serious felony (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8) & (c)(23)). The court declared Jesus to be a ward of the court under Welfare and Institutions Code section 602 and committed him to the Youthful Offender Unit (YOU) program for 480 days.
Jesus argues that the juvenile court erred by denying his motion to exclude evidence of his statements to police during a custodial interrogation because he did not knowingly, intelligently, and voluntarily waive his right to remain silent as required under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He next asserts that the court abused its discretion by committing him to the YOU program rather than releasing him to his mother. Finally, he contends that the order requiring that he have no contact with Sean is unconstitutionally vague because it lacks an express knowledge element. We find no reversible error.
FACTUAL AND PROCEDURAL BACKGROUND
Jesus and Sean were 17 years old at the time of the incident. They met each other through Jesus's girlfriend, Ruby H., who was best friends with Sean's girlfriend, Salena G. A few days later, they met again at a party where Jesus was aggressive toward Sean and Sean's friends.
Sean then learned that Jesus had posted on Instagram about Sean's group of friends. Jesus also posted that he had had sex with Salena, which upset Sean. The two sent each other aggressive and insulting messages. In one message, Sean stated that he was "strapped up," meaning that he had a gun. The two eventually agreed to meet at a park the next day to fight each other. Sean intended to go to the park to fight Jesus, but he changed his mind because Ruby and Salena spoke to each other and did not want the boys to fight.
The next day, Sean and Salena went to the park in the afternoon. Sean did not bring any weapons. Jesus and Ruby were waiting at the park. Jesus and Sean began speaking, but the conversation turned sour. Eventually, Jesus pulled out a knife and stabbed Sean four times—through his lower back, twice in his liver through his diaphragm (one of which was one-half inch from his heart), and in the center of his chest. Sean had surgery for his wounds, received two blood transfusions, and was hospitalized for eight days.
How the stabbing occurred is disputed. Sean claimed that after he brought up the topic of Jesus sleeping with Salena, Jesus pulled out a knife from his right side and started moving toward him. Ruby got in front of Jesus trying to hold him back, while Salena jumped in front of Sean. Sean pushed Salena away and started to run. Jesus chased him. Sean tripped and fell to the ground. Jesus crouched over him and started to stab him. Sean believed that the first stab wound was to his back. When Sean turned over, Jesus stabbed him in the stomach and chest areas. Sean managed to kick Jesus off of him and run away. Jesus started to chase him again until Salena threw her water bottle at Jesus and Ruby grabbed Jesus. Sean denied threatening or lunging at Jesus. He stated that he never made any motions toward his waistband area and did not have any physical contact with Jesus before Jesus stabbed him. Salena's version of the incident was similar to Sean's version.
Jesus testified that Sean looked tense and "on edge" when they met at the park. He stated that he brought a knife because he thought Sean might have a gun. He claimed that he did not want to fight because doctors told him that if he punched anything with his hand he might reinjure a finger and require surgery. At some point, the boys moved away from their girlfriends and Jesus started to think about Sean's claim that he had a gun. He looked where Sean had his hands.
Jesus noticed that Sean's hands were initially in front of Sean's body in a fist and then "for a split second [Sean] no longer had his hands like that." Sean had opened his hands and moved them to his sides, "more around his waist." Jesus admitted, however, that he never saw Sean with a weapon. Believing that he needed to protect Ruby, he pushed her aside and unbuckled the sheath holding his knife.
Jesus claimed that Sean pushed Salena aside and quickly lunged at Jesus from about six feet away. The men bumped each other and Jesus ended up on the ground. Fearing that Sean might kill him, Jesus pulled out his knife because he knew he could not punch Sean without reinjuring his finger. Jesus stated that Sean charged at him while he was still on the ground. Jesus then stabbed Sean, but he could not remember how many times because it happened so fast. Jesus knew that he had stabbed the front of Sean's body multiple times. Jesus did not know how Sean got stabbed in the back. After the stabbing Sean put his hands toward his stomach, turned and ran away. Jesus admitted that he then took a couple of steps toward Sean.
When asked whether he waited to see if Sean had a gun, Jesus replied, "I feel like I did, but at the moment—because it was just in the moment, very frantic, panic mode—didn't feel like I did, at the moment." Jesus claimed that everything happened in a matter of seconds and that he was panicked about his safety and the safety of his girlfriend.
Ruby testified that Jesus pulled out his knife as Sean ran toward him. Both fell. Jesus then stabbed Sean. After Ruby helped Jesus get up she got between the boys. During direct examination she claimed that Sean ran away, with Salena following him. During cross-examination she stated that Sean got up after the stabbing and ran toward Jesus again. She did not remember if the boys made contact when Sean ran toward Jesus the second time. Sean then ran away as she held Jesus back.
A third party, William C., also saw the incident. He claimed that a young White man (Sean) ran after a man dressed in black (Jesus). Jesus tripped, Sean leaned over Jesus and then Jesus got up. Sean then walked toward the girls. Sean asked William for help, stating he had been stabbed.
DISCUSSION
I. JESUS WAIVED HIS MIRANDA RIGHTS
A. Additional Background
At approximately 6:00 p.m. that same day, Jesus, with his mother present, went to the police station to turn himself in. Police officers detained him while they transported Salena to the police station to positively identify Jesus as Sean's assailant. Police also spoke to Sean before he was taken into surgery and viewed his injuries. In the presence of Jesus's mother, Officer Wayne Pugh took Jesus into custody and explained that he would be booked. Jesus was in handcuffs, which were later removed. Officer Pugh placed Jesus in a nonsecure cell to be questioned. The interview began at about 2:45 a.m. with Officer Pugh standing in an open doorway while Jesus was seated inside. Jesus's mother was not present. The entire interview took approximately 25 minutes. Officer Pugh wore a body camera, and the interview was recorded and transcribed. At the beginning of the interview, Officer Pugh read Jesus his Miranda rights:
"PUGH: You have the right to remain silent. If you give up the right to remain silent anything you do say can and will be used in court against you. You have the right to speak with an attorney of your choice before questioning and to have the attorney present during questioning. If you cannot afford an attorney one'll be appointed for you by the court prior to any questioning if you so desire. The attorney will not cost you anything.
The services are free. Do you understand each of these rights that I explained to you?

"[JESUS]: What was the last part?

"PUGH: If you cannot afford an attorney one will be appointed for you by the court prior to any questioning if you so desire. The attorney will not cost you anything and the services are free.

"[JESUS]: M'kay.

"PUGH: So do you understand each of these rights that I explained to you? Having in mind and understanding your rights as I have told you are you willing to talk to me? M'kay. So, do you work (unintell).

"[JESUS]: (unintell).

"PUGH: Do you work?

"[JESUS]: (unintell).

"PUGH: You don't work? Okay.

"[JESUS]: I was tryin' to apply but nah."

After some small talk, Officer Pugh asked Jesus to tell him about the fight at the park. Jesus gave a long narrative about all the events leading up to the incident at the park. He stated that he went to the park with a knife because Sean stated in one of his messages that he had a gun. As they were talking, Sean started to approach, so Jesus unbuckled his knife sheath. They started pushing and punching each other and both ended up on the ground. While Jesus was still on the ground, Sean ran at him, causing Jesus to stab Sean. Officer Pugh then started to question Jesus about the details of the stabbing. Officer Pugh told Jesus that he had already talked to Sean, told Jesus that Sean had been stabbed four times, and asked Jesus about Sean's wounds. After hearing from Jesus, Officer Pugh asked him about the wound on Sean's back:
"PUGH: . . . So but then how did he get the one on his back?

"[JESUS]: I'm not sure. Maybe while he was running away I went ahead and did it again."

Officer Pugh explained to Jesus that he should not lie and told him to collect his thoughts. After some additional discussion, Officer Pugh asked Jesus if he had any questions. The interview ended shortly thereafter.
Before the adjudication hearing, Jesus moved to exclude the police interview under Miranda arguing that his waiver of his Miranda rights was not knowing, intelligent or voluntary. The juvenile court stated that the interrogation happened a few months before Jesus's 18th birthday and occurred in a large and brightly lit holding cell next to an office. The court found the reading of the Miranda warning was not monotone or rushed. The court concluded that Jesus's request that Officer Pugh reread the last part of the warning showed Jesus was following along and understood the warning. The court found that, under the circumstances, Jesus had knowingly, intelligently, and voluntarily waived his rights and denied the motion to exclude his interview statements.
B. General Legal Principles
A defendant's statements to police during a custodial interrogation are inadmissible to establish his or her guilt unless the defendant knowingly and intelligently waived the rights to remain silent and to the presence and assistance of counsel. (Miranda, supra, 384 U.S. at p. 475.) An interrogation must end if the suspect indicates, in any manner, the desire to remain silent or to consult an attorney, and any statement obtained thereafter may not be admitted against the accused during trial. (Fare v. Michael C. (1979) 442 U.S. 707, 709.) "[A] suspect who desires to waive his [or her] Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision." (People v. Cruz (2008) 44 Cal.4th 636, 667 (Cruz).)
"[A] valid waiver of Miranda rights may be express or implied. [Citations.] A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights." (Cruz, supra, 44 Cal.4th at p. 667.) "[C]ourts must use ' "special care in scrutinizing the record" ' to evaluate a claim that a juvenile's custodial confession was not voluntarily given." (People v. Nelson (2012) 53 Cal.4th 367, 379 (Nelson).) Nonetheless, a juvenile may waive his or her Miranda rights implicitly by willingly answering questions after acknowledging that he or she understood those rights. (Nelson, at p. 375; Berghuis v. Thompkins (2010) 560 U.S. 370, 384 ["Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent."].)
A presumption exists against finding a waiver of Miranda rights; the question is "whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation." (Cruz, supra, 44 Cal.4th at p. 668.) "When a juvenile's waiver is at issue, consideration must be given to factors such as 'the juvenile's age, experience, education, background, and intelligence, and . . . whether [the juvenile] has the capacity to understand the warnings given [], the nature of [the juvenile's] Fifth Amendment rights, and the consequences of waiving those rights.' " (Nelson, supra, 53 Cal.4th at p. 375.) Miranda error is reversible unless it was harmless beyond a reasonable doubt. (In re Z.A. (2012) 207 Cal.App.4th 1401, 1422.)
C. Analysis
Jesus contends the court erred in denying his motion to suppress his interview statements. He claims that the totality of the circumstances show that the waiver of his Miranda rights was not knowing, voluntary and intelligent because: (1) he had no prior experience with law enforcement and was presumably unfamiliar with his Miranda rights; (2) Officer Pugh violated the proper police practices for obtaining a juvenile's Miranda waiver; (3) the interrogation occurred at 2:45 a.m. without Jesus ever confirming that he understood his rights and stating that he was willing to talk; and (4) his isolation from his mother suggests his purported Miranda waiver was involuntary. We find no error and, in the alternative, that any error was harmless.
Turning to the facts before us, Jesus correctly notes that he did not have a juvenile record, the interrogation occurred in the early morning, his mother was not present, and Officer Pugh never received a verbal response from Jesus after asking whether he understood his rights and was willing to talk. These facts, however, do not constitute the totality of the circumstances. While still a minor, Jesus was 17 years old, attending high school and receiving passing grades. (See People v. Lewis (2001) 26 Cal.4th 334, 384-385 [valid Miranda waiver by 13-year-old; In re Charles P. (1982) 134 Cal.App.3d 768, 772 [valid Miranda waiver by 12-year-old].)
Officer Pugh read the warnings in a normal conversational tone and speed. Jesus complains that Officer Pugh did not stop after each individual warning and ask him to explain the warning in his own words as advocated by a juvenile interrogation guide published by The International Association of Chiefs of Police. This guide advises police to read the warnings slowly and "ask the child after each individual [Miranda] warning to explain it back in his or her own words" before accepting a Miranda waiver. (Reducing Risks, supra, at p. 7.) While we agree that following this suggestion would be a wise practice for police, we found no case law requiring that this practice be followed. In any event, this guide notes that a 10th grade level of comprehension is often required to understand Miranda rights. (Reducing Risks, supra, at p. 7.) The fact that Jesus was in the 12th-grade and receiving an "A" in English suggests he had the ability to comprehend his Miranda rights without the need for him to repeat each warning in his own words.
Jesus's mother was not present during the interrogation and the Reducing Risks guide advises that a " 'friendly adult' " be allowed to consult with the minor throughout the interrogation process. (Reducing Risks, supra, at p. 7.) Jesus, however, cited no California authority stating that parental involvement is required to obtain a valid Miranda waiver from a minor. Jesus's citation to United States v. Doe (9th Cir. 1998) 155 F.3d 1070 (Doe) is misplaced. The Doe court addressed a federal statute that requires an arresting officer notify the parents of the rights of the juvenile for any violation of federal law (18 U.S.C.A. §§ 5031, 5033). (See Doe, at pp. 1066-1069.) Jesus, however, was charged and convicted of violations of state law, not federal law. In any event, our high court, while recognizing that, "the immaturity of most minors [] make it desirable for those in custody to have the advice of counsel or other responsible adult" (People v. Lara (1967) 67 Cal.2d 365, 382, disapproved on other grounds in People v. Mutch (1971) 4 Cal.3d 389, 393), held that "the presence or consent of counsel or other responsible adult" is not invariably a requirement for a valid Miranda waiver by a juvenile. (Lara, at p. 383.)
Here, the totality of the circumstances supports the inference that Jesus understood his Miranda rights, that he waived his rights and choose to speak to Officer Pugh. Significantly, after Officer Pugh finished reading the Miranda warning Jesus asked that he repeat one part. We agree with the juvenile court's finding that this question indicates Jesus was actively listening to the warnings. Jesus responded "M'kay" after Officer Pugh reread the last warning. Thereafter, Officer Pugh asked Jesus whether he understood these rights and whether Jesus was willing to speak to him. Although the interview was video recorded, Officer Pugh's body camera did not capture Jesus's head. Additionally, Officer Pugh did not testify at the hearing; thus, it is unknown whether Jesus affirmatively nodded his head after each question. Nonetheless, the circumstances show that Jesus chose not to remain silent and thereafter he never invoked any of his rights. Rather, Jesus's conduct indicated that he waived his Miranda rights. (Cruz, supra, 44 Cal.4th at p. 667 [a valid waiver of Miranda rights may be implied].) Moreover, Jesus does not claim that any of his statements were coerced or that Officer Pugh used deception, threats of harm or promises of leniency.
Under the totality of the circumstances surrounding his interrogation, we conclude that Jesus's Miranda waiver was knowing, intelligent, and voluntary. Accordingly, his Miranda rights were not violated, and the juvenile court properly denied his motion to suppress his in-custody statements to police.
In any event, even if the admission of Jesus's in-custody statements was erroneous, any error would be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) It is undisputed that Jesus stabbed Sean four times—through his lower back, twice in his liver through his diaphragm and in the center of his chest. During closing argument defense counsel conceded that the prosecution had proven the elements of assault with a deadly weapon. The sole issue in dispute was whether the People had proven that Jesus did not act in self-defense. On this issue, the court had before it CALCRIM No. 3470 regarding self-defense. The People argued that Jesus used excessive force in defending himself against any perceived danger from his unarmed opponent.
After hearing the evidence, the court found that Sean was unarmed during the incident and that the boys were "rather evenly matched" in size. It found that Sean's back wound suggested that at some point Sean had his back turned to Jesus and "was not a threat, an imminent threat, to Jesus" and that Jesus lacked justification to use deadly force. Jesus's statement during the police interrogation explaining how Sean may have suffered the back wound was of little consequence given the undisputed evidence that Sean was unarmed and suffered four stab wounds to his torso. In other words, Jesus's use of a deadly weapon in response to Sean lunging at him was excessive and unreasonable. (People v. Pinholster (1992) 1 Cal.4th 865, 966 ["[t]he right of self-defense did not provide defendant with any justification or excuse for using deadly force to repel a nonlethal attack"], disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Enriquez (1977) 19 Cal.3d 221, 228 ["an assault with fists . . . does not justify the use of a deadly weapon in self-defense"], disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Even assuming Jesus's initial stabbing of Sean was somehow justified, he used excessive force by stabbing Sean three more times. (People v. Simington (1993) 19 Cal.App.4th 1374, 1380 [the theory of self-defense presented by the defendant was "extremely weak" where the defendant admitted to stabbing the victim simply to "ward" him off but inflicted a wide, deep wound].)
Here, overwhelming evidence demonstrated that Jesus used unreasonable force in response to Sean's perceived aggression. Beyond any reasonable doubt, the result of Jesus's adjudication hearing would have been the same, regardless of any error with respect to the admission of his in-custody statements to police.
II. COMMITMENT TO YOU PROGRAM
A. Additional Background
According to superior court practice, this matter was deemed a long trial and presided over by a superior court judge, with disposition handled by a juvenile court judge. During the adjudication hearing, Judge Rubin denied a defense motion to reduce the assault charge to a misdemeanor, noting that even though two of the stab wounds were to Sean's chest, the People did not file an attempted murder charge "to give [Jesus] a break." Judge Shelton later conducted the disposition hearing, indicating that he read the disposition memoranda submitted by the parties, the probation officer's social study, and a memorandum from probation that stated Jesus was not appropriate for Camp Barrett because he is now an adult and the crime was serious.
At the beginning of the hearing, defense counsel requested that Jesus be released to his mother on probation, while the prosecutor asked that Jesus be sent to the YOU program. The court asked both counsel about the evidence presented at the adjudication hearing, including conflicting evidence, noting it was at a disadvantage because it did not preside over the adjudication hearing. Both counsel stated that a third party witness observed the incident and testified that Sean ran toward Jesus at some point.
After hearing from counsel, the court stated that the "number one priority [was] rehabilitation." The court noted the seriousness of the crime and commented that Jesus could have been charged with attempted murder. The court stated that had the stabbing occurred a few months later, Jesus would be going to state prison for a very long time and it was "glad this [hearing] is about rehabilitation." The court adopted the probation department recommendation and committed Jesus to 480 days in the YOU program. After completing at least 70 percent of his custody time in the YOU Program, Jesus would be screened for weekend furloughs by the probation department. Additionally, if he displayed "exemplary behavior" while in custody and presented a written plan that would continue to enhance his progress, Jesus could be screened for early furlough release.
B. Analysis
Jesus contends the court abused its discretion in committing him to the YOU program rather than to his mother's custody. He argues that the juvenile court rendered an uninformed and misinformed decision that violated his right to due process and fundamental fairness. He claims that had the court been properly informed of the adjudication hearing evidence, it would have known that this case was about whether Jesus stabbed Sean in self-defense, and whether Jesus had an objectively reasonable belief that he needed to use self-defense. He asserts the court failed to independently familiarize itself with the adjudication hearing evidence to determine his fitness for probation in the custody of his mother. Had a properly informed judge presided over the disposition hearing, he claims that it is reasonably possible that he would have been placed in the custody of his mother on formal probation rather than committed to the YOU program. Finally, he complains that the court failed to discuss or articulate any finding under section 726, subdivision (a). Jesus requests that we reverse and remand for a new disposition hearing before another judge.
"Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall . . . receive . . . guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances." (§ 202, subd. (b).) To determine the proper disposition for a minor, the juvenile court must consider public safety, victim redress, and the minor's best interests. (§ 202, subd. (d).) The court must also take into account: (1) the minor's age, (2) the circumstances and gravity of the minor's offense, and (3) any prior history of delinquency. (§ 725.5.) In addition, the disposition may incorporate punishment, where consistent with the minor's rehabilitation and not imposed for purposes of retribution. (§ 202, subds. (b) & (e).) The provisions of section 202 apply to a person who, like Jesus, was declared a ward of the juvenile court while a minor, pursuant to section 602, and who became an adult while under the jurisdiction of the juvenile court. (In re Charles G. (2004) 115 Cal.App.4th 608, 614.)
At the dispositional hearing, the court is required to "receive in evidence the social study of the minor made by the probation officer" as well as "any other relevant and material evidence that may be offered." (§ 706.) The court may consider commitment without prior recourse to other less restrictive placements. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.) The juvenile court is not required to expressly state on the record its reasons for rejecting less restrictive placements, but the record must contain some evidence that the court appropriately considered and rejected reasonable alternative placements. (Ibid.) We review a juvenile court's commitment decision for abuse of discretion, "indulging all reasonable inferences to support the juvenile court's decision." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) No abuse of discretion occurs where the record demonstrates "both a probable benefit to the minor . . . and the inappropriateness or ineffectiveness of less restrictive alternatives." (Ibid.)
As a preliminary matter, Jesus's complaint that the court failed to discuss or articulate any finding under section 726, subdivision (a) lacks merit. A ward or a dependent child may not be removed from a parent's custody unless the court finds one of the following facts: "(1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian." (§ 726, subd. (a)(1)-(3); see also Cal. Rules of Court, rule 5.790(d).)
Although the court must find at least one of these facts, it is enough to recite the language of the statute or to mark a check-box on a form indicating which of the statutorily required facts the court found. (In re Kenneth H. (1983) 33 Cal.3d 616, 620-621.) The juvenile court's finding may be explicit or implicit, but it must be on the record. (In re Michael W. (1980) 102 Cal.App.3d 946, 953, fn. 4.) Here, the minute order for the disposition hearing stated that custody was taken because the parent was "incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor." Nothing more was required.
Jesus argues that the disposition judge was so uninformed and misinformed of the facts that his decision amounted to an abuse of discretion. A fair reading of the disposition transcript, when considered with the documents reviewed by the disposition judge before the hearing, do not support Jesus's claim that the court was uninformed, misinformed, or that it delegated its discretion to the prosecutor.
The disposition judge read the probation officer's social study before the hearing. The social study summarized the dispute leading up to the incident. It also summarized Jesus's statements during the police interview. Jesus's mother acknowledged that Jesus leaves home without her permission and that this behavior sparks arguments. Although Jesus has a 10:00 p.m. curfew, she stated that Jesus does not always comply with his curfew and that this behavior also causes trouble. Jesus admitted that he has been truant from school and was suspended from school about 18 months ago for beating up a classmate who had posted intimate photographs of Jesus's sister. Jesus stated that he started consuming alcohol and marijuana when he was 16 years old and that he uses alcohol once a week and marijuana two to three times a week. During his detention for this crime, Jesus assaulted another minor by trying to hit the minor in the face with his closed fist. An officer grabbed Jesus and pushed him to the floor. The social study concluded that a medium risk of recidivism existed. The probation officer expressed concern regarding Jesus's use of alcohol and marijuana, stating that Jesus is a risk for future delinquent behavior if he continues using these substances when returned to the community. Citing the "seriousness of the offense," the probation officer could not "in good conscience recommend anything other than a commitment to the Youthful Offender Unit (YOU). This will provide the youth with programming and ongoing services, give him an extended period of forced sobriety, and lay the groundwork for his eventual return to the community."
The results of a court-ordered psychological evaluation were also attached to the social study and considered by the disposition judge. The evaluator noted that Jesus scored high on the "asocial index, indicating a potential for antisocial behavior. On a positive note, the social maladjustment scale [was] not significantly elevated, suggesting that [Jesus] has an awareness of prosocial mores and values but may be inclined to ignore them." The evaluator concluded that the incident appeared to have been an isolated antisocial event, as Jesus does not meet criteria for conduct disorder or other impulse control disorder. Nonetheless, the evaluator also noted that Jesus "experiences reactive aggression, in which the individual perceives a threat and reacts with aggression." A high probability existed that Jesus had a substance dependence disorder. Based on certain risk factors, the evaluator concluded that Jesus "rated as low risk for violent behavior."
The court also read the disposition memorandum filed by defense counsel which noted witness testimony that Sean charged toward Jesus. This memorandum also summarized the letters filed in support of Jesus. More importantly, the disposition judge asked both counsel about the evidence in the record because he had not presided over the adjudication hearing. Both counsel informed the court of the evidence showing that Sean ran toward Jesus. Both counsel also informed the disposition judge that Jesus claimed self-defense, but that the adjudication judge had concluded that Jesus used too much force to qualify as self-defense. On this record, Jesus's claim that the disposition judge was uninformed or misinformed rings hollow. Jesus unfairly faults the disposition judge for not reading the transcripts of the adjudication hearing. The disposition judge, however, informed both counsel what materials he had considered and asked if "there [is] anything else that I was supposed to review?" Defense counsel responded "No, your Honor." Defense counsel could have, but did not, present the adjudication hearing transcripts to the disposition judge. (§ 706 ["The court shall receive in evidence . . . any other relevant and material evidence that may be offered . . . ."].)
Jesus contends the disposition judge discounted the psychological evaluator's finding that he presented a low risk for violence and "punished him harshly" based on unfamiliarity with the case and the belief that he should have been charged with attempted murder. The record does not show that the disposition judge was unfamiliar with the case. Moreover, there was nothing improper about the court's observation that Jesus could have been charged with attempted murder. Rather, the disposition judge merely displayed his knowledge of case law holding that an intent to kill can be inferred based on the circumstances of the crime. (People v. Avila (2009) 46 Cal.4th 680, 701 [" '[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may . . . be inferred from the defendant's acts and the circumstances of the crime.' "].) Notably, Jesus stabbed Sean four times in the torso, not an arm or leg. (People v. Moore (2002) 96 Cal.App.4th 1105, 1114 [evidence supporting intent to kill included fact that "defendant stabbed the victim not in the arm or leg, but in the abdomen, an extremely vulnerable area of the body"].)
The record shows that while under his mother's care Jesus consumed alcohol and marijuana on a weekly basis. Based on this report the psychological evaluator found a high probability existed that Jesus had a substance dependence disorder. A forced period of sobriety in the YOU program would benefit Jesus. Additionally, while the evaluator found that Jesus had a low risk for violent behavior, he also concluded that Jesus reacts to perceived threats with aggression. We note that on June 28, 2017, Jesus received a certificate of completion for ten sessions of "Aggression Replacement Training." Nonetheless, six weeks earlier Jesus was involved in an incident where he attempted to punch another minor in the face. Also concerning are the evaluator's comments that Jesus showed a potential for antisocial behavior and is inclined to ignore prosocial mores and values. On balance, the record contained substantial evidence demonstrating that the YOU program would benefit Jesus and that returning him to his mother would be ineffective in addressing these issues. The fact that Jesus believes the disposition judge should have weighed the evidence differently does not establish an abuse of discretion, nor does it meet his burden to show error on appeal.
II. NO CONTACT ORDERS
The court ordered that Jesus "is to stay at least 100 FEET away from and have no direct or indirect contact with SEAN L." (the first order). Jesus contends this order is unconstitutionally vague because it lacks an express knowledge element. He notes that another order (the second order) properly included a knowledge requirement: "The minor shall not knowingly have any direct or indirect contact with SEAN L. AND SELENA G. The minor shall not knowingly contact SEAN L. AND SELENA G. either directly or indirectly in any way, including, but not limited to, in person, by telephone, by texting, in writing, by public or private mail, by email or fax, or by any other electronic means." (Italics added.)
The "void-for-vagueness doctrine . . . , which derives from the due process concept of fair warning, bars the government from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' " (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).) In the context of probation conditions, a court order withstands a vagueness challenge if it is "sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (Ibid.) An appellate court will not find a court order unconstitutionally vague " ' " 'if any reasonable and practical construction can be given to its language.' " ' " (Id. at p. 501.) We review a constitutional challenge to the no contact order de novo. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188.)
Here, while the first order does not have a knowledge requirement pertaining to "direct or indirect contact" with Sean, the second order resolved this perceived defect as it expressly provided that Jesus not knowingly have any direct or indirect contact with Sean. Thus, the only remaining issue is whether the first order must be modified to include a scienter requirement (e.g., that Jesus is to not knowingly be within 100 feet of Sean). Citing People v. Petty (2013) 213 Cal.App.4th 1410 (Petty) and People v. Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez), Jesus contends that he could unwittingly violate the first order and that an express knowledge requirement can remedy the deficiency. Jesus notes that the California Supreme Court rejected a claim that a probation condition prohibiting the possession of firearms and illegal narcotics had to be modified to include an express requirement of knowing possession of the prohibited items. (Hall, supra, 2 Cal.5th at pp. 499-503.) He argues that Hall does not eliminate the need for modification of the first condition because Hall is specific to firearms and narcotics conditions—or at least " 'possessory probation conditions.' " We disagree.
The defendant in Hall argued that a probation condition barring him from possessing firearms or illegal drugs was unconstitutionally vague because it did not explicitly state that only knowing possession of the prohibited items was barred. (Hall, supra, 2 Cal.5th at p. 497.) The Hall court rejected the argument, explaining that "[i]n determining whether the condition is sufficiently definite, . . . a court is not limited to the condition's text [and] must also consider other sources of applicable law . . . including judicial construction of similar provisions." (Id. at p. 500, citations omitted.) Hall explained that relevant case law already construed probation conditions involving the possession of firearms and drugs as prohibiting knowing possession of these items. (Id. at p. 503.) "Given this legal backdrop . . . the firearms and narcotics conditions are not unconstitutionally vague." (Id. at p. 501.) Further, "[b]ecause no change to the substance of either condition would be wrought by adding the word 'knowingly,' " the Hall court "decline[d] defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit." (Id. at p. 503.)
When the Supreme Court decided Hall, it dismissed review of In re A.S. (2016) 245 Cal.App.4th 758, which presented the issue whether no-contact probation conditions must be modified to explicitly include a knowledge requirement. Thus, the Hall court's reasoning applies equally to no-contact probation conditions. Hall's reasoning also applies to the instant no-contact order. Penal Code section 166, subdivision (c)(1) provides the penalty for violating a criminal protective order, stating that the violation constitutes a crime only if it is "willful and knowing." Thus, any knowledge requirement is implicit in the first order since proof of a violation requires evidence that the violation be knowing and willful. (People v. Coria (1999) 21 Cal.4th 868, 876 ["[A] crime cannot be committed by mere misfortune or accident."].)
Jesus's reliance on Petty, supra, 213 Cal.App.4th 1410 and Rodriguez, supra, 222 Cal.App.4th 578 is misplaced. The Petty court modified a protective order "to provide defendant must not "knowingly" come within 100 yards of the victim or her daughter." (Petty, at pp. 1424-1425.) The court, however, provided no analysis justifying the modification. (Ibid.) More importantly, Petty was decided before Hall. The Rodriguez court rejected the defendant's argument that staying 100 yards away from the victim's residence, place of employment or victim's vehicle required an express knowledge element, stating, "No reasonable law enforcement officer or judge can expect probationers to know where their victims are at all times" (Rodriguez, at p. 594), and a no contact condition "does not require [a] defendant to stay away from all locations where the victim might conceivably be. It requires [a] defendant to remove himself ('Stay away at least 100 yards . . . .') when he knows or learns of a victim's presence." (Ibid.)
Unlike this case, the condition in Rodriguez did not designate from whom the defendant was to stay away, and there were two victims in the case. (Rodriguez, supra, 222 Cal.App.4th at p. 594.) Additionally, the condition did not identify the victims or their addresses or vehicles, and the probation report did not provide that information. (Id. at p. 595.) The defendant pointed out that the circumstances of the crime did not indicate he knew or reasonably should have known the car owner's name, where she worked, or what other vehicles she might operate. (Ibid.) The People conceded a knowledge requirement should be added, and thus the Court of Appeal reversed the order to permit the court to modify the condition to require the defendant not knowingly come within 100 yards of a "known or identified victim." (Ibid.) Here, the order requiring that Jesus stay 100 feet away from Sean is clear and, under Hall, a knowledge requirement is implied. Thus, there is no need for any modification.
DISPOSITION
The adjudication and disposition orders are affirmed.



NARES, Acting P. J.

WE CONCUR:



AARON, J.



GUERRERO, J.