Filed 5/27/22 In re Elijah C. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Elijah C. appeals jurisdictional and dispositional orders adjudging him a ward of the juvenile court and placing him at Camp Wilmont Sweeny. (Welf. & Inst. Code, § 602; statutory references are to this code unless otherwise indicated.) Elijah contends the juvenile court erred by: (1) failing to declare whether “wobbler” offenses Elijah was found to have committed are felonies or misdemeanors; (2) failing to calculate Elijah’s maximum term of confinement; (3) miscalculating Elijah’s precommitment credits; and (4) imposing an unconstitutionally vague probation condition requiring Elijah to “be of good conduct.” We will strike the challenged probation condition and remand this matter for the court to correct several errors that are conceded by the People.

BACKGROUND

I. The Section 602 Petitions

Elijah is the subject of three juvenile wardship petitions, one of which was filed in Contra Costa and then transferred to Alameda County for disposition.

A. The December 2019 Petition

In December 2019, the Alameda County District Attorney filed a petition alleging that 14-year-old Elijah was a person described in section 602 due to his commission of a felony second degree robbery. (Pen. Code, § 211.)

The robbery is summarized in a probation department intake report. On December 27, 2019, at around 6:18 p.m., the victim was standing outside a Berkeley restaurant when Elijah “snatched her cell phone from her hand,” pushed her to the ground, struck her in the face, and ran. When the victim got up and began to approach a female who had been with Elijah, Elijah reappeared, shoved the victim to the ground again, and tried unsuccessfully to take her purse before running away.

Following his arrest, Elijah was placed in juvenile hall. On January 2, 2020, Elijah was released on electronic monitoring to the custody of his grandmother, who is his guardian. Pending a trial on the petition, Elijah was placed on electronic monitoring pursuant to a home supervision program.

In June 2020, Elijah was detained at juvenile hall following his arrest by Oakland police. The District Attorney filed an amended petition alleging that 15-year-old Elijah committed two additional offenses: felony driving or taking a vehicle (Pen. Code, § 10851, subd. (a)); and misdemeanor receiving stolen property (Pen. Code, § 496, subd. (a)).

The June 2020 offenses are described in a probation department report. On June 13, at around 12:30 a.m., a male victim parked his car and was walking toward his Airbnb when two suspects approached him. One suspect asked to borrow the victim’s phone to call his mother. Then, the other suspect pointed a gun and demanded the victim’s keys and wallet. The victim complied and the suspects fled in the victim’s car. On June 16, at approximately 5:44 a.m., Elijah and another minor were in the victim’s car when highway patrol officers made a vehicle stop.

Elijah was released on home monitoring to the custody of his grandmother pending a pretrial hearing. On July 20, 2020, the probation department filed a report regarding Elijah’s noncompliance with “GPS rules”; Elijah refused to keep his device charged and repeatedly left home without permission. On one such occasion, Elijah was at McDonalds when he was shot in the leg. Elijah violated his home supervision rules before and after the shooting incident and was admonished and counseled several times. The probation officer and Elijah’s grandmother were both concerned for Elijah’s safety. Throughout the summer of 2020, Elijah continued to violate GPS rules despite issuance of formal violations followed by reinstatements. On September 9, Elijah failed to appear for a pretrial hearing, and a bench warrant was issued for his arrest. On October 6, Elijah was returned to juvenile hall.

On October 8, 2020, the court exercised wardship jurisdiction over Elijah pursuant to his admission that he committed the felony offense of being an accessory after the fact (Pen. Code, § 32), a stipulated lesser included offense of the robbery alleged in the petition. The remaining counts in the amended petition were dismissed, with “facts and restitution open.”

On October 22, 2020, Elijah was released to the custody of his grandmother pending disposition.

B. The September 2020 Petition

A September 2020 wardship petition filed in Contra Costa County alleged that Elijah committed two felonies: carjacking by means of force or fear with the intent to permanently and temporarily deprive the owner of possession (Pen. Code, § 215, subd.(a)); and evading officers by means of reckless driving (Veh. Code, § 2800.2, subd. (a)).

The Contra Costa offenses are summarized in a probation department report. On September 5, 2020, just after 11:00 p.m., a male victim parked his car outside his apartment at a senior living complex in Antioch. As he opened his door, a younger male approached, pointed a gun in his face, and demanded his keys. The victim complied, then ran inside his apartment and called the police. The male with the gun was accompanied by two males and a female, who fled in the victim’s car. The victim did not get a good look at his assailants, who wore masks, but he thought they were teenagers. The incident was captured on surveillance cameras at the apartment complex. Police located the victim’s vehicle on the highway traveling at a high speed and attempted unsuccessfully to stop it. With officers in pursuit, the vehicle exited the freeway and ran multiple red lights before crashing into a residential garage. Elijah, who was driving, and three passengers got out of the car and attempted to flee, but they were all taken into custody. One of the other males had a black BB gun in his possession.

On October 1, 2020, the Contra Costa court held a contested jurisdictional hearing. At the hearing, Elijah entered pleas of no contest to the felonies alleged in the petition in exchange for which the District Attorney agreed not to add a charge that Elijah also committed a second degree robbery. Pursuant to these pleas, the court sustained jurisdictional allegations in the September 2020 petition and then transferred the matter to Alameda County for disposition.

C. The February 2021 Petition

On January 28, 2021, Elijah was arrested by Oakland police on charges of carjacking and robbery. According to a probation department report, these offenses were committed during a crime spree that involved four separate incidents, although only the fourth of these resulted in a sustained petition against Elijah.

The first incident occurred at around 1:00 a.m., when a woman parked her red Mazda near her home. A vehicle screeched to a stop behind the victim, and a male passenger got out and ran toward the woman, shouting “ ‘Give me that key or I’ll shoot you!’ ” The victim ran but slipped and dropped her key. The assailant grabbed the key and drove off in the red Mazda.

Later that day, at around 2:19 p.m., a female victim was walking down the street with her relatives when they were approached by two suspects, one who was later identified as Elijah. The suspects began pulling on the woman’s purse, demanding that she show them what she had. The woman resisted until one assailant pulled out a black handgun. The suspects took the woman’s purse, got into a red Mazda with stolen license plates and drove away.

A few hours later, a female victim was getting out of her car when four suspects ran toward her. They pushed her to the ground and one suspect pointed a gun at her head. Another suspect rummaged through the car and then got into a red sedan and fled. The remaining suspects took the woman’s keys and wallet and fled in her car. That car was soon involved in a hit and run. When its occupants fled, one was seen getting into a red Mazda.

Shortly before 6:00 p.m., Oakland police responded to a report of another carjacking. The victim had been visiting a friend and was accosted by three individuals when she got into her green Camry, which was parked on the street. They pulled her out of the car, threw her to the ground, and fled in her car. While police were at the scene of this crime, other officers located the green Camry and red Mazda. The carjacked vehicles were followed until they stopped at a Home Depot, where officers detained four suspects, including Elijah, who was in the driver’s seat of the red Mazda.

On February 1, 2021, the Alameda County District Attorney filed a wardship petition alleging that Elijah committed two felony second degree robberies on January 28. (Pen. Code, § 211.) The allegations pertained to Ms. K., the woman whose purse was stolen while she was out walking with relatives, and Ms. S., who was forcibly removed from her green Camry. At a February 2 detention hearing, the juvenile court denied Elijah’s request to be released to his grandmother’s home on electronic monitoring. Elijah denied the petition allegations and the matter was continued for a contested jurisdictional hearing, which was held on March 22 and 23, 2021.

At the jurisdictional hearing, Ms. K. testified about the purse-snatching but was not able to identify the boys because they were wearing masks and she was very panicked at the time. Officer Maio, from the Oakland police department, testified that he escorted Ms. K. to an “infield showup” on the night of the January 28 incident, and that Ms. K. identified Elijah as one of her assailants.

Ms. S. testified about the second degree robbery of the green Camry. She confirmed her prior report that one individual pulled her out of her car and two others pushed her down in the street before they drove off in her car. Ms. S. saw the faces of these three people, who did not wear masks. On the day of the incident, Ms. S. identified Elijah as one of her assailants, and she confirmed that identification at the jurisdictional hearing.

At the conclusion of the contested hearing, the court found that the People failed to prove the allegations pertaining to Ms. K., but it found that the allegations pertaining to the robbery of Ms. S. were true beyond a reasonable doubt, and accordingly found Elijah to be a minor as described in section 602.

II. The Dispositional Order

The dispositional hearing on Elijah’s three pending petitions was held on April 12, 2021.

The probation department recommended that Elijah be adjudged a ward of the court, removed him from his grandmother’s home, and committed to Camp Wilmont Sweeney for a period of four to six months. This recommendation was based on Elijah’s escalating criminal behavior, failure to take responsibility for his actions, and noncompliance with court orders and probation department directives. Elijah’s safety was an additional concern. The department reported that Elijah had the support of his grandmother, who wanted him home, but she was unable to control him. The department opined that Elijah would benefit from services at Camp Wilmont Sweeny, including cognitive behavioral therapy, pro-social activities, and decision-making skills that would assist him throughout life.

At the dispositional hearing, Elijah requested that the court return him to his grandmother with additional services. His counsel opined that he had matured and that he would do better once COVID restrictions were lifted. The People urged the court to follow the probation department’s recommendation, opining that if Elijah was successful at camp, he could be returned to his grandmother’s home.

Before announcing its ruling, the court offered these remarks to Elijah’s grandmother: “I have tried this with Elijah several times. I’ve given Elijah plenty of chances. And at this stage, it has become very clear to this Court that he needs more structure and he needs a program that is going to address the underlying causes that are leading to his behavior that’s finding him in trouble with the law. So I am going to follow Probation’s recommendation.”

The court found, among other things, that reasonable efforts were made to avoid having to remove Elijah from his home, Elijah failed to reform while on probation in the home, and remaining there was contrary to his welfare. Elijah was adjudged a ward of the court, with care, custody, and control to be under the supervision of the probation officer. The court ordered Elijah to be placed in a “suitable county facility with Camp Wilmont Sweeny approved for placement under standard out-of-home probation conditions.”

DISCUSSION

I. The Challenged Probation Condition

At the dispositional hearing, the juvenile court followed the probation department’s recommendation to impose standard probation conditions, which included a requirement that Elijah “[b]e of good conduct.” Elijah contends this condition is unconstitutionally vague. The People agree, as do we.

“A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.” (In re Josh W. (1997) 55 Cal.App.4th 1, 5.) However, “[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,’ if it is to withstand a challenge on the ground of vagueness.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)

A general “good behavior” condition is not “ ‘ “sufficiently precise” ’ ” to give a minor notice of the conduct that is expected of him or her. (In re P.O. (2016) 246 Cal.App.4th 288, 299.) This type of condition is vague because “[r]easonable minds can differ about what it means to ‘be of good behavior and perform well’ at school or work and to ‘be of good citizenship and good conduct.’ ” (Ibid.) Therefore, we will strike this condition and remand the matter, “leaving the court free to impose, if it wishes, substitute conditions that are sufficiently clear to comply with constitutional requirements.” (Ibid.; see also In re Anthony L. (2019) 43 Cal.App.5th 438, 456 [striking vague condition and remanding with acknowledgement that juvenile court was free to impose substitute condition].)

II. Designation of Offenses as Misdemeanors or Felonies

Section 702 states, 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.” If this declaration is not made at the jurisdictional hearing, it must be made at or before disposition. (In re G.C. (2020) 8 Cal.5th 1119, 1125 (G.C.); Cal. Rules of Court, rules 5.790(a)(1), 5.795(a).)

The requirement that a juvenile court declare expressly whether a wobbler offense is a misdemeanor or a felony “is ‘obligatory’ rather than ‘merely “directory.” ’ ” (G.C., supra, 8 Cal.5th at p. 1125; see also In re Manzy W. (1997) 14 Cal.4th 1199, 1206–1207 (Manzy W.).) “It is not sufficient that the offenses were identified as felonies in the wardship petitions and in the minute order of the jurisdictional hearing, or that they were treated as felonies for purposes of calculating the maximum term of confinement.” (G.C., at p. 1125.) Requiring this formal declaration from the juvenile court ensures that the court is aware of its discretion under section 702 and also helps determine the length of any present or future confinement for a wobbler offense. (Ibid.)

In the present case, Elijah contends the juvenile court did not make required declarations regarding two wobbler offenses that he was found to have committed. In Contra Costa, the juvenile court sustained an allegation that Elijah violated Vehicle Code section 2800.2 by evading a peace officer while driving recklessly. A section 2800.2 violation is a wobbler offense. (People v. Statum (2002) 28 Cal.4th 682, 685.) Elijah’s offense was characterized as a felony in the wardship petition, and subsequently, at the jurisdictional hearing, Elijah’s counsel stated expressly that Elijah would be pleading no contest to “both felonies” alleged in the petition. But when the juvenile court accepted Elijah’s plea, it did not declare that it was exercising its discretion to treat the section 2800.2 offense as a felony.

Subsequently, at the jurisdictional hearing on the December 2019 petition, the Alameda court sustained an allegation that Elijah violated Penal Code section 32. Section 32, which defines the crime of being an accessory to a felony, is a wobbler offense. (People v. Boatwright (2019) 36 Cal.App.5th 848, 852, fn. 2.) At the jurisdictional hearing pertaining to this offense, Elijah’s counsel advised the court that Elijah would “be admitting a felony.” And, when the court took Elijah’s plea, it characterized the section 32 offense as a felony. However, the court did not declare that it was exercising its discretion under section 702 to treat this offense as a felony rather than a misdemeanor.

On this record, Elijah contends that a remand is required for the court to make express declarations as to whether these two offenses are felonies or misdemeanors. The People argue that Elijah forfeited this claim by failing to raise it below, citing G.C., supra, 8 Cal.5th at p. 1130.

G.C. involved a minor who was the subject of multiple wardship petitions. (G.C., supra, 8 Cal.5th 1119.) In 2015, the juvenile court in Alameda County made a dispositional order regarding two pending petitions despite the fact that the court had failed to declare whether the minor’s wobbler offenses were felonies or misdemeanors. Subsequently, the minor appealed a 2016 dispositional order that was entered in Santa Clara County on the ground that the Alameda court had failed to declare whether her offenses in that county were misdemeanors or felonies. The G.C. court found that this claim was not cognizable because the minor had not filed a timely appeal from the dispositional order previously entered in Alameda. In reaching this conclusion, the court rejected the minor’s contention that the failure to make a finding required by section 702 results in an “unauthorized sentence correctible at any time.” (Id. at p. 1129.) Instead, the court explained, “upon timely appeal the proper course would have been to remand the case for the Alameda court to exercise its discretion.” (Id. at p. 1131.)

In the present case, the People do not dispute that Elijah filed a timely appeal from a dispositional order that pertains to all three of the petitions discussed herein. Thus, G.C.’s forfeiture analysis does not apply under the facts presented here. (G.C., supra, 8 Cal.5th at p. 1131.) Nor do the People cite any other authority supportive of their view that a minor must expressly request that the juvenile court comply with its official duty under section 702 in order to avoid forfeiture of his or her right to the formal declaration required by that statute.

Alternatively, the People contend that, although the juvenile courts did not “strictly comply with the declarative requirement,” the record shows that both courts elected to treat the offenses in question as felonies. Remand is not “ ‘automatic’ whenever the juvenile court fails to make a formal declaration under . . . section 702.” (Manzy, supra, 14 Cal.4th at p. 1209.) The error may be deemed harmless if the record shows “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.” (Id. at p. 1209.)

Elijah emphasizes that it is not sufficient that both of his wobbler offenses were alleged as felonies in the wardship petitions and treated as felonies for purposes of calculating the maximum term of confinement. (Manzy W., supra, 14 Cal.4th at p. 1208.) But that does not mean these facts are irrelevant, and here Elijah admitted allegations that he committed felonies pursuant to plea agreements that benefited him in other ways. Further, in both instances, the juvenile court found there was a factual basis for Elijah’s plea admitting allegations that he committed a felony, and those findings are supported by the evidence we have summarized here. Finally, we note that, when Elijah entered his plea with respect to the December 2019 petition, the Alameda court expressly characterized Elijah’s Penal Code section 32 offense as a felony.

Ultimately, we need not decide whether any omission of express declarations was harmless error because the parties agree that a remand is required for other reasons. On remand, the court is directed to clarify the record by making a formal section 702 declaration as to both wobbler offenses.

III. Maximum Term of Confinement

When a minor is removed from the physical custody of a parent or guardian under section 602, the juvenile court must specify the maximum term of confinement. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541; § 726, subd. (d)(1) (section 726(d)(1)).) The maximum term shall be recorded in the minute order for the dispositional hearing. (Cal Rules of Court, rule 5.795(b).)

At the time of Elijah’s depositional hearing, former section 726(d)(1) provided that a minor’s maximum term of confinement was the maximum term of imprisonment which could be imposed on an adult for the offenses the minor was found to have committed. However, an amendment to this statute that went into effect during the pendency of this appeal provides that a minor’s maximum term of confinement is the middle term of imprisonment that could be imposed on an adult convicted of the same offenses the minor is found to have committed. (See Stats. 2021, ch. 18, § 7.)

In the present case, the parties agree that the juvenile court erred by failing to specify Elijah’s maximum term of confinement when he was removed from his grandmother’s custody at the dispositional hearing. They also agree that, in any event, Elijah is entitled to the ameliorative benefit of amended section 726(d)(1). (See In re Estrada (1965) 63 Cal.2d 740, 744–745.) On remand, the juvenile court is directed to calculate and record Elijah’s maximum term of confinement under the amended statute.

IV. Custody Credits

“Although the juvenile court’s decisions regarding confinement are reviewed for abuse of discretion [citation], a minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. [Citations.] It is the juvenile court’s duty to calculate the number of days earned, and the court may not delegate that duty.” (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.)

At the dispositional hearing in this case, the juvenile court stated that Elijah would receive a credit of 105 days for time served. On appeal, Elijah contends the court erred by relying on a credit calculation contained in the probation report without performing the calculation independently. It is not clear from this record whether the juvenile court discharged its duty with respect to Elijah’s custody credits. Elijah contends further that the 105 day calculation adopted by the court is incorrect. As a remand is required to establish the maximum term of confinement, Elijah may address his custody credits with the juvenile court directly.

DISPOSITION

The probation condition requiring Elijah to be of good conduct is stricken and the matter is remanded to the juvenile court, which remains free to impose a substitute condition that is sufficiently clear to comply with constitutional requirements. On remand, the juvenile court is directed to make an express declaration as to whether Elijah’s wobbler offenses are felonies or misdemeanors, to calculate and record Elijah’s maximum term of confinement, and to reconsider the calculation of Elijah’s predisposition custody credits. The jurisdictional and dispositional orders are otherwise affirmed.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

RODRÍGUEZ, J.

In re Elijah C. (A162493)