In re L.J. ( 2021 )


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  • Filed 11/30/21
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    In re L.J., a Person Coming
    Under the Juvenile Court
    Law.
    THE PEOPLE,
    Plaintiff and
    Respondent,                              A161118
    v.                                       (Contra Costa County
    L.J.,                                    Super. Ct. No. J20-00455)
    Defendant and
    Appellant.
    L.J. (the minor) appeals from the juvenile court’s
    dispositional order committing him to a county institution and
    imposing probation conditions. The juvenile court sustained a
    petition alleging the minor came within the court’s jurisdiction
    under Welfare and Institutions Code section 602, subdivision (a)
    for reckless evasion of a peace officer in violation of Vehicle Code
    section 2800.2, subdivision (a) (count 1); assault with a deadly
    weapon (deadly weapon assault) on a peace officer in violation of
    Penal Code1 section 245, subdivision (c) (count 2); and assault
    with force likely to produce great bodily injury (force-likely
    assault) in violation of section 245, subdivision (a)(4) (count 3).
    He contends (1) the punishment for the reckless evasion count
    1   Undesignated statutory references are to the Penal Code.
    1
    and one of the assault counts must be stayed under section 654
    because all of the counts were based on an indivisible course of
    conduct committed against the same victims; (2) the finding on
    the count of force-likely assault must be vacated under section
    954 because it is a lesser included offense of deadly weapon
    assault on a peace officer and is based on the same conduct; (3)
    the juvenile court failed to designate counts 1 and 3, which are
    wobblers,2 as felonies or misdemeanors; and (4) one of the
    probation conditions is unconstitutionally vague and overbroad.
    We agree with the minor that the punishment on the
    reckless evasion of police count must be stayed under section 654
    because it is based on the same indivisible course of conduct with
    the same intent and objective as the assault counts. We also
    agree with the minor’s third argument that the juvenile court
    failed to designate counts 1 and 3 as felonies or misdemeanors.
    We reject the minor’s remaining arguments. We will therefore
    remand this case with appropriate instructions.
    BACKGROUND
    In August 2020, Antioch police officers responded to a call
    about a prowler in a residential neighborhood. The officers tried
    to stop a Pontiac sedan they found in the neighborhood that the
    caller had identified, but the Pontiac did not stop. Several police
    officers in different vehicles then pursued the Pontiac.
    2 “A wobbler is a crime that can be punished as either a
    felony or a misdemeanor.” (In re G.C. (2020) 
    8 Cal.5th 1119
    ,
    1122, fn. 1.)
    2
    Early in the pursuit, the Pontiac came to the end of a dead-
    end street. The Pontiac turned around and stopped facing three
    patrol vehicles, which were two car lengths away. The street was
    approximately the width of three vehicles. One police vehicle was
    on the right edge of the roadway facing the Pontiac, a second
    vehicle was offset behind the first and partially in the left lane,
    and the third vehicle was behind the first. There was sufficient
    space for the Pontiac to drive past and get around the police
    vehicles without hitting or interfering with them. The officer
    driving the first vehicle started to exit his vehicle with his
    firearm drawn to stop the driver of the Pontiac.
    The Pontiac accelerated towards the officers at 10 to 15
    miles per hour. The Pontiac struck the driver’s door on the first
    vehicle as the officer opened it, slamming the door on the officer’s
    ankle and trapping his foot, and causing a small scrape or dent
    on the bottom of the door.3 The Pontiac then hit the front
    bumper on the passenger’s side of the second vehicle, causing no
    noticeable damage. The Pontiac veered to the left of the third
    vehicle to try to avoid hitting it head on, but still sideswiped and
    scratched the third vehicle on the driver’s side.
    The officers resumed the pursuit of the Pontiac in their
    three patrol vehicles. After an extended chase by police vehicles
    and pursuit by a California Highway Patrol helicopter, law
    enforcement officers eventually apprehended the three occupants
    3 The officer experienced pain but did not sustain any
    visible injuries or see a doctor.
    3
    of the Pontiac, one of whom was the minor. Law enforcement
    officers later identified the minor as the driver of the Pontiac.
    The People filed a petition alleging the minor came within
    the court’s jurisdiction under Welfare and Institutions Code
    section 602, subdivision (a) for committing three felonies: evasion
    of a peace officer while driving in willful disregard of others in
    violation of Vehicle Code section 2800.2, subdivision (a) (count 1);
    deadly weapon assault on a peace officer in violation of section
    245, subdivision (c) (count 2); and force-likely assault in violation
    of section 245, subdivision (a)(4) (count 3). After a contested
    jurisdictional hearing, the court sustained the petition as to all
    three counts. At the dispositional hearing, the court ordered the
    minor committed to a county institution until the earliest of the
    age of 21 or the maximum custody time of six years and eight
    months. The court further ordered that the minor participate in
    the Youth Offender Treatment Program. The court imposed
    various probation conditions, one of which was that the minor
    was “to report any police contact related to criminal activity and
    any arrests to [a probation officer] within 24 hours.”
    DISCUSSION
    I.   Section 654
    Section 654, subdivision (a) states in pertinent part, “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.” “Th[is] section applies to juvenile court proceedings.”
    4
    (In re Jesse F. (1982) 
    137 Cal.App.3d 164
    , 170.) “Whether a
    defendant may be subjected to multiple punishment under
    section 654 requires a two-step inquiry, because the statutory
    reference to an ‘act or omission’ may include not only a discrete
    physical act but also a course of conduct encompassing several
    acts pursued with a single objective. [Citations.] We first
    consider if the different crimes were completed by a ‘single
    physical act.’ [Citation.] If so, the defendant may not be
    punished more than once for that act. Only if we conclude that
    the case involves more than a single act—i.e., a course of
    conduct—do we then consider whether that course of conduct
    reflects a single ‘intent and objective’ or multiple intents and
    objectives.” (People v. Corpening (2016) 
    2 Cal.5th 307
    , 311.)
    “ ‘Whether a course of criminal conduct is divisible and
    therefore gives rise to more than one act within the meaning of
    section 654 depends on the intent and objective of the
    actor.’ . . . [¶] ‘Whether the facts and circumstances reveal a
    single intent and objective within the meaning of Penal Code
    section 654 is generally a factual matter; the dimension and
    meaning of section 654 is a legal question.’ ” (People v. Dowdell
    (2014) 
    227 Cal.App.4th 1388
    , 1414.) “When a trial court
    sentences a defendant to separate terms without making an
    express finding the defendant entertained separate objectives,
    the trial court is deemed to have made an implied finding each
    offense had a separate objective.” (People v. Islas (2012)
    
    210 Cal.App.4th 116
    , 129.) We review for substantial evidence a
    trial court’s implied finding that a defendant had separate
    5
    intents and objectives for different offenses. (Dowdell, at
    p. 1414.)
    A.    Separate intents and objectives
    The minor raises two arguments under section 654. First,
    he contends his punishment for evading a police officer while
    driving in willful disregard of others must be stayed because it is
    based on the same course of conduct as the assault counts. The
    minor argues that his collisions with the officers’ vehicles, which
    constitute the basis for the sustained assault allegations,
    constitute part of his attempt to evade them, so that both the
    evasion and the assaults had the single objective of eluding the
    police. We agree.
    The reckless evasion count is based on the same course of
    conduct as the assaults, as the assaults occurred during the
    extended flight from the police. The evidence does not support a
    finding that the minor’s assaults on the officers were based on
    different intents and objectives than the minor’s overall purpose
    of trying to evade the police officers. The low speed of the Pontiac
    (10 to 15 miles per hour), together with the fact that the minor
    evidently slalomed between the three police vehicles and struck
    them largely on the sides of the Pontiac and not head-on,
    indicates the minor was trying to get past the police vehicles
    rather than targeting them. The officer in the third vehicle
    admitted that at one point the Pontiac was approaching him
    dead-on, but the Pontiac veered to the side to avoid striking the
    third police vehicle. The lack of significant damage—a small
    scrape or dent on one car, no damage to the second, and a scratch
    6
    to the third—indicates the minor was trying to evade the police.
    Especially when considered in light of the minor’s youth, the
    assaults reflect a clumsy and ill-advised attempt to escape the
    blockade at the end of the dead-end street, rather than an intent
    to injure the officers or damage their vehicles that was separate
    from the goal of escape.
    The Attorney General stresses that the road was wide
    enough to allow the Pontiac to pass the vehicles without striking
    them. This does not demonstrate that the intent or objective of
    the assaults was different from the objective of evading the
    police. The road was only three car-widths wide, and the police
    vehicles were on the right side and in the middle of it. The
    minor’s failure to avoid contact with the police vehicles in such
    tight quarters indicates only the minor’s attempt to elude the
    police at 10 to 15 miles per hour, not a deliberate targeting of the
    vehicles. The contact along the sides of the Pontiac and the police
    vehicles was so slight that it is unreasonable to think the minor
    had a separate intent to assault the officers.
    The facts of this case may be contrasted with People v.
    Jimenez (2019) 
    32 Cal.App.5th 409
    , on which the Attorney
    General relies. There, a defendant fleeing from one law
    enforcement vehicle during a chase turned a corner and began
    driving towards a second law enforcement vehicle coming in the
    opposite direction. (Id. at pp. 413–414.) The defendant drove on
    the wrong side of the road in an attempt to intimidate the
    oncoming vehicle. (Id. at pp. 414, 425.) The Court of Appeal
    found substantial evidence supported the trial court’s implied
    7
    finding that the defendant had separate intents to flee the
    pursuing officers and assault the oncoming officers. (Id. at
    p. 425.) The court also held that the defendant had time to
    reflect because he could have avoided driving toward the
    oncoming vehicle. (Id. at p. 426.)
    Here, the minor took no action as dangerous as driving into
    oncoming traffic, and, in fact, attempted to avoid striking the
    third vehicle by veering away from it. The time from when the
    Pontiac reached the end of the road and the officer got out of the
    first vehicle to when the Pontiac took off was very brief. The
    contact between the Pontiac and the police vehicles was
    incidental to the overall purpose of escaping the dead-end street.
    Because the charge of reckless evasion of a police officer in
    violation of Vehicle Code section 2800.2, subdivision (a) does not
    carry the highest punishment, the punishment for that count
    must be excluded from the calculation of the minor’s maximum
    time of confinement. (§ 654, subd. (a) [act must be punished
    under the provision that provides for the longest potential term of
    imprisonment]; Veh. Code, § 2800.2 [punishable by six months to
    one year in county jail or imprisonment]; § 245, subd. (a)(4)
    [punishable by two, three, or four years in prison or one year in
    county jail]; § 245, subd. (c) [punishable by three, four, or five
    years in prison].)
    B.    Multiple Victims and Section 654
    The minor next argues that section 654 requires the
    exclusion of one of his assault counts from his maximum time of
    confinement. The minor recognizes that “section 654 does not
    8
    apply to crimes of violence against multiple victims. [Citation.]
    The reason is that “ ‘[a] defendant who commits an act of violence
    with the intent to harm more than one person or by a means
    likely to cause harm to several persons is more culpable than a
    defendant who harms only one person.” ’ ” (People v. Correa
    (2012) 
    54 Cal.4th 331
    , 341, fn. omitted.) But the minor contends
    the multiple victim exception does not apply here because the
    same three officers were the victims of both assault charges. He
    cites People v. Cardenas (2015) 
    239 Cal.App.4th 220
    , 230, which
    stated, “To preclude application of section 654, however, each of
    the crimes must have involved at least one different victim.”
    According to the minor, this means at least one victim of the
    conviction for force-likely assault in violation of section 245,
    subdivision (a)(4) must be a different, separate victim of the
    conviction for deadly weapon assault on a peace officer in
    violation of section 245, subdivision (c).
    “The multiple victim exception, simply stated, permits one
    unstayed sentence per victim of all the violent crimes the
    defendant commits incidental to a single criminal intent.”
    (People v. Garcia (1995) 
    32 Cal.App.4th 1756
    , 1784.) The juvenile
    court found the minor committed assault against three different
    police officers. The minor could therefore have been punished
    separately for each victim of his assaults without violating
    section 654. This would be consistent with the rationale of the
    multiple-victim exception, which is to recognize the greater
    culpability of a defendant whose actions harm or threaten to
    9
    harm multiple people. (People v. Correa, supra, 54 Cal.4th at
    p. 341.)
    The prosecutor charged the minor with only two counts of
    assault on the same three officers in each count, but that does not
    change the application of the multiple-victim exception, as People
    v. Garcia, supra, 
    32 Cal.App.4th 1756
     demonstrates. There, the
    defendant was convicted of shooting at an occupied motor vehicle
    and assaulting the four victims inside. (Id. at pp. 1762–1763.)
    The trial court imposed a sentence on the defendant for the count
    of shooting at an occupied motor vehicle and for the assault on
    one of the occupants, staying the charges for the other three
    assault counts. (Id. at pp. 1764–1765.) The Court of Appeal
    rejected the defendant’s argument that this sentence violated
    section 654. (Id. at p. 1785.) As relevant here, the court
    explained, “Where one person is the victim of both a shooting at
    an occupied motor vehicle and a simultaneous assault, the trial
    court can impose an unstayed sentence for one or the other, but
    not for both. [Citations.] We believe this is equally true where the
    same persons are the victims of a shooting at an occupied motor
    vehicle and of simultaneous assaults: the trial court can impose
    an unstayed sentence for the shooting, based on any given victim,
    or for the assault on that victim, but not for both.” (Id. at
    p. 1784.) Garcia demonstrates that the relevant consideration is
    the total number of victims and charges, not the overlap between
    victims in various charges.
    We recognize that in People v. Centers (1999)
    
    73 Cal.App.4th 84
    , 101–102, which the minor cites, the court
    10
    upheld punishments for two different counts where the victims in
    each count overlapped only partially, rather than completely as
    they do here. This distinction, however, is not significant. The
    rationale in Centers was that the defendant could be punished
    based on the number of victims, and the degree of overlap was
    relevant to show the defendant was punished only once per
    victim. Centers did not hold that the result would have been
    different if the same group of people were the victims of each
    count.
    The minor’s theory that complete overlap of victims bars
    multiple punishments would lead to absurd results. It would
    mean a defendant who committed two crimes against the same
    two victims would be punished less severely than a defendant
    who committed two crimes against one victim and one crime
    against a second victim. It would also allow a prosecutor to
    selectively increase the punishment for a defendant simply by
    choosing not to charge or prove the defendant’s guilt on a crime
    as to one of the victims, to avoid a complete overlap of victims.
    Thus, the prosecutor in this case could have avoided the reach of
    section 654 (as interpreted by the minor) by charging him with
    force-likely assault as to two officers and deadly weapon assault
    on a peace officer as to three officers. Such outcomes are contrary
    to the purpose of the multiple-victim exception, which is to
    increase punishment based on harm or threat of harm to more
    people. We therefore hold that section 654 does not prohibit the
    minor’s punishment for both assault counts.
    11
    II.   Section 954
    “Section 954 provides as relevant here: ‘An accusatory
    pleading may charge two or more different offenses connected
    together in their commission, or different statements of the same
    offense or two or more different offenses of the same class of
    crimes or offenses, under separate counts . . . . The prosecution is
    not required to elect between the different offenses or counts set
    forth in the accusatory pleading, but the defendant may be
    convicted of any number of the offenses charged . . . .’ Under
    section 954, as [the Supreme Court has] interpreted it, ‘a
    defendant properly may be convicted of two offenses if neither
    offense is necessarily included in the other, even though under
    section 654 he or she could not be punished for more than one
    offense arising from the single act or indivisible course of
    conduct.’ ” (People v. Vidana (2016) 
    1 Cal.5th 632
    , 636–637,
    fn. omitted (Vidana).) Additionally, “ ‘[t]he most reasonable
    construction of the language in section 954 is that the statute
    authorizes multiple convictions for different or distinct offenses,
    but does not permit multiple convictions for a different statement
    of the same offense when it is based on the same act or course of
    conduct.’ ” (Id. at p. 650.) Thus, section 954 permits multiple
    convictions based on the same conduct except when the
    convictions rest on different statements of the same offense or
    when a statement of one offense is necessarily included within
    another. We review the application of section 954 de novo.
    (People v. Villegas (2012) 
    205 Cal.App.4th 642
    , 646.)
    12
    The minor contends that both the exceptions to section 954
    prohibit the court from convicting him of both force-likely assault
    under section 245, subdivision (a)(4) and deadly weapon assault
    on a peace officer under subdivision (c). He presents two
    alternative paths to this conclusion, relying on the holding in
    People v. McElheny (1982) 
    137 Cal.App.3d 396
    , 406 that deadly
    weapon assault is a lesser included offense of deadly weapon
    assault on a peace officer under subdivision (c). In one argument,
    he contends force-likely assault is a lesser included offense of
    deadly weapon assault, so by extension it must also be included
    within deadly weapon assault on a peace officer. In the other, the
    minor contends that force-likely assault is a statement of the
    same offense as deadly weapon assault, so force-likely assault
    “should be treated as a lesser included offense of” deadly weapon
    assault on a peace officer for purposes of section 954. We are not
    persuaded by either contention.
    A. Lesser included offense
    For the minor’s first argument, one offense is necessarily
    included within another “if the statutory elements of the greater
    offense include all of the statutory elements of the lesser offense.”
    (People v. Reed (2006) 
    38 Cal.4th 1224
    , 1227.) Construing
    substantially similar language in a former version of the statute,
    In re Mosely (1970) 
    1 Cal.3d 913
    , 919, fn. 5, stated that force-
    likely assault is not a lesser included offense of deadly weapon
    assault. More recently, People v. Aguayo (2019) 
    31 Cal.App.5th 13
    758, 766, review granted May 1, 2019, S25454 (Aguayo),4 reached
    the same conclusion under the current version of the statute.
    Both decisions contradict the minor’s argument.
    Aguayo relied in large part on People v. Aguilar (1997)
    
    16 Cal.4th 1023
     (Aguilar). (Aguayo, supra, 31 Cal.App.5th at
    pp. 765–767.) Construing an earlier version of the statute (see
    Aguayo, at p. 765, fn. 5), Aguilar held that “except in those cases
    involving an inherently dangerous weapon,” a jury’s decision
    when considering force-likely and deadly weapon assault is
    “functionally identical regardless of whether, in the particular
    case, the defendant employed a weapon alleged to be deadly as
    used or employed force likely to produce great bodily injury; in
    either instance, the decision turns on the nature of the force
    4 The Supreme Court originally deferred briefing in People
    v. Aguayo, review granted May 1, 2019, S254554, pending
    resolution of People v. Aledamat, review granted July 5, 2018,
    S248105. (People v. Aguayo (2019) 
    439 P.3d 764
    ; see Cal. Rules of
    Court, rules 8.512(d)(2), 8.520.) After the Supreme Court issued
    its decision in People v. Aledamat (2019) 
    8 Cal.5th 1
    , the court
    ordered the parties in Aguayo to brief the following questions: “Is
    assault by means of force likely to produce great bodily injury a
    lesser included offense of assault with a deadly weapon? If so,
    was defendant’s conviction of assault by means of force likely to
    produce great bodily injury based on the same act or course of
    conduct as her conviction of assault with a deadly weapon?”
    (People v. Aguayo (Nov. 20, 2019, S254554) 2019 Cal. Lexis 8785.)
    In April 2020, the Court ordered the parties to file supplemental
    briefs “addressing the following questions: ‘Are Penal Code
    section 245, subdivision (a)(1) and section 245, subdivision (a)(4)
    merely different statements of the same offense for purposes of
    section 954? If so, must one of defendant’s convictions be
    vacated?’ ” (People v. Aguayo (Apr. 22, 2020, S254554) 2019 Cal.
    Lexis 2769.)
    14
    used.” (Aguilar, at p. 1035.) But Aguilar noted that deadly
    weapon assault was not duplicative of force-likely assault,
    because “[t]here remain assaults involving weapons that are
    deadly per se, such as dirks and blackjacks, in which the
    prosecutor may argue for, and the jury convict of, aggravated
    assault based on the mere character of the weapon.” (Id. at
    p. 1037, fn. 10.)
    Aguayo concluded from Aguilar that “although every force-
    likely assault must be committed in a way that is likely to
    produce great bodily injury (either with or without a deadly
    weapon), there is a subset of assaults with deadly weapons—
    those committed with inherently deadly weapons—that are not
    necessarily likely to produce great bodily injury.” (Aguayo, supra,
    31 Cal.App.5th at p. 766.) In other words, because one element of
    force-likely assault is that the force used be likely to produce
    great bodily injury, while not every use of a deadly weapon is
    necessarily likely to produce such injury, force-likely assault is
    not a lesser included offense of deadly weapon assault. (See ibid.)
    The minor distinguishes Aguayo on its facts, noting that
    the defendant’s convictions there were based on hitting the victim
    with multiple different objects. (Aguayo, supra, 31 Cal.App.5th
    at p. 768.) We consider the facts of the minor’s offense only to
    decide if the minor has established the threshold condition for
    application of section 954, namely, that he suffered multiple
    convictions based on the same act or course of conduct. (See
    Vidana, supra, 1 Cal.5th at pp. 637, 647–648.) The test for lesser
    included offenses, however, focuses on the elements of offenses in
    15
    the abstract and not their factual predicate in a specific case.
    (People v. Reed, supra, 38 Cal.4th at p. 1229 [“In deciding
    whether multiple conviction is proper, a court should consider
    only the statutory elements”].) The facts of the offenses here and
    in Aguayo are thus irrelevant to the elements-based question of
    whether force-likely assault is a lesser included offense of deadly
    weapon assault under the elements test.
    The minor urges us to follow In re Jonathan R. (2016)
    
    3 Cal.App.5th 963
    , 970, 973–974, which held that force-likely
    assault is not a statement of the same offense as deadly weapon
    assault but is a lesser included offense of it. Jonathan R. focused
    on Aguilar’s statement that “there is a ‘fundamental identity of
    the concepts of assault with a deadly weapon and assault by
    means of force likely to produce great bodily injury.’ ([Aguilar,]
    at p. 1036.)” (Jonathan R., at p. 973.) In a footnote, Jonathan R.
    declared the same was true of assault with an inherently deadly
    weapon, because such weapons “ ‘are “dangerous or deadly” to
    others in the ordinary use for which they are designed’ ” so that
    “[u]se of these weapons necessarily involves the use of force likely
    to produce death or serious injury.” (Jonathan R., at p. 973,
    fn. 5.)
    Like Aguayo, we decline to follow Jonathan R. (Aguayo,
    supra, 31 Cal.App.5th at p. 767.) Jonathan R. relies on Aguilar’s
    reasoning about the similarity between force-likely and deadly
    weapon assaults while ignoring Aguilar’s explicit exception that
    prevented the two concepts from collapsing into one and making
    one concept surplusage. As Aguayo pointed out, Aguilar
    16
    recognized this exception because “there are nonordinary uses to
    which one can put an inherently deadly weapon . . . without
    altering the weapon’s inherently deadly character.” (Aguayo,
    supra, 31 Cal.App.5th at p. 767, italics omitted.) In a
    hypothetical described in Aguayo, which the Attorney General
    repeats here, “ ‘a defendant cuts a single strand of a sleeping
    person’s hair with an inherently dangerous weapon such as a
    dagger.’ ” (Id. at p. 766.) A dagger is capable of producing great
    bodily injury, and thus a defendant’s use of it in this scenario
    would prove deadly weapon assault (assuming the other elements
    were met). But because the defendant did not use the dagger in a
    manner likely to cause great bodily injury, the defendant would
    not have committed force-likely assault. (Id. at pp. 766–767.)
    Thus, because force-likely assault’s element of use of force likely
    to cause great bodily injury is not necessarily included within
    deadly weapon assault, the former is not a lesser included offense
    of the latter.
    B.    Statement of the same offense
    The minor’s second argument under section 954, that force-
    likely assault is a statement of the same offense as deadly
    weapon assault and therefore also included within deadly weapon
    assault on a peace officer under section 245, subdivision (c), also
    fails under our Supreme Court’s cases. To determine whether
    one statutory provision describes the same offense as another
    such that conviction on both offenses would be barred, the
    Supreme Court first considers whether the two provisions have
    the same elements or one is a lesser included offense of the
    17
    other.5 (People v. White (2017) 
    2 Cal.5th 349
    , 357 [noting of
    section 261, subdivisions (a)(3) and (a)(4)(A), “ ‘neither offense is
    included within the other’ ”]; Vidana, supra, 1 Cal.5th at p. 648
    [“Larceny and embezzlement have different elements and neither
    is a lesser included offense of the other”]; People v. Gonzales
    (2014) 
    60 Cal.4th 533
    , 539 (Gonzalez) [noting of section 288,
    subdivisions (f) and (i), “neither offense is included within the
    other”].) The Supreme Court also examines the two provisions’
    textual structure. (Gonzales, at p. 539.) In White and Vidana,
    the Court went on to consider whether the legislative history and
    historical context showed that the Legislature intended the
    provisions to describe a single offense, despite the provisions’
    dissimilarity of elements and separate structure. (White, at
    pp. 358–359 [considering legislative history]; Vidana, at p. 648
    [same].)
    These cases demonstrate that unlike the test for whether
    one offense is included within another (which depends on the
    elements of the offenses), the test for whether two provisions are
    statements of the same offense depends ultimately on legislative
    structure and intent. Thus, in Vidana, supra, 2 Cal.5th at pages
    648–649, the court concluded that larceny and embezzlement
    were statements of the same offense, even though they have
    different elements and neither is included within the other,
    5 Presumably, this is because section 954 also bars two
    convictions where one was included within the other (Vidana,
    supra, 1 Cal.5th at pp. 636–637), so if one provision is included
    within another there is no need to consider whether the
    provisions state a single offense.
    18
    because other indicia of legislative intent pointed to that result.
    The determination that two provisions are statements of the
    same offense is therefore analytically distinct from the question
    of whether, under the elements test, the first provision is a lesser
    included offense of all the same offenses as the second. The
    different tests cause the two concepts to operate independently.
    Applying the Supreme Court’s framework to force-likely
    and deadly weapon assault demonstrates the point. We have
    already concluded that force-likely and deadly weapon assault
    have different elements, so that force-likely assault is not a lesser
    included offense of deadly weapon assault. The only way for
    force-likely assault to be a statement of the same offense as
    deadly weapon assault would be if there were some indication in
    section 245’s structure, historical context, or legislative history
    that the Legislature intended this result. Section 245’s history
    and context may in fact demonstrate this intent, as described in
    People v. Cota (2020) 
    44 Cal.App.5th 720
    , 724–729, review
    granted April 22, 2020, S261120, briefing deferred pursuant to
    rule 8.512(d)(2), Cal. Rules of Court, pending disposition of People
    v. Aguayo, S254554. But even if Cota were correct on this score
    (which we need not and do not decide), force-likely and deadly
    weapon assault would be statements of the same offense despite
    having different elements, not because they have the same
    elements. Since the elements of these two types of assault are
    analytically irrelevant to the question of whether they are
    statements of the same offense, there is no reason to treat force-
    likely assault as included within assault with a deadly weapon on
    19
    a peace officer under section 245, subdivision (c), even if deadly-
    weapon assault is a lesser included offense of that charge.
    Accordingly, there is no merit to defendant’s argument that he
    may not be found to have committed both force-likely assault and
    assault with a deadly weapon on a peace officer.
    III.   Designation as felonies or misdemeanors
    Welfare and Institutions Code section 702 states that after
    a juvenile court finds that a minor is described by section 602, as
    the court did here, the juvenile court “shall then proceed to hear
    evidence on the question of the proper disposition to be made of
    the minor.” The same statute further requires, “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.”
    (Welf. & Inst. Code, § 702.) “It is well established that section
    702’s requirement is ‘obligatory’ rather than ‘merely “directory” ’
    [citation] and requires an explicit declaration [citation]. 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.” (In re G.C.,
    supra, 8 Cal.5th at p. 1125.)
    The minor argues, the Attorney General concedes, and we
    agree that an adult’s conviction for reckless evasion of a police
    officer in violation of Vehicle Code section 2800.2, subdivision (a)
    (count 1) or force-likely assault in violation of section 245,
    subdivision (a)(4) (count 3) may be punished as either a felony or
    20
    misdemeanor, so Welfare and Institutions Code section 702
    required the juvenile court to designate those offenses as one or
    the other. The juvenile court failed to do so. The juvenile court’s
    calculation of the maximum term of confinement indicates that it
    treated the offenses as felonies, but under In re G.C., supra,
    8 Cal.5th at page 1125, that is insufficient. Accordingly, we must
    remand this case for the juvenile court to make the required
    finding. (In re Manzy W. (1997) 
    14 Cal.4th 1199
    , 1211.)
    IV.   Probation condition
    The minor challenges the juvenile court’s imposition of a
    probation condition requiring the minor to “report any police
    contact related to criminal activity and any arrests to the Deputy
    Probation Officer within 24 hours.” The minor argues this
    condition is unconstitutionally vague and overbroad.
    “The juvenile court has wide discretion to select
    appropriate conditions and may impose ‘ “any reasonable
    condition that is ‘fitting and proper to the end that justice may be
    done and the reformation and rehabilitation of the ward
    enhanced.’ ” ’ ” (In re Sheena K. (2007) 
    40 Cal.4th 875
    , 889.) “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. [Citation.] A
    probation condition that imposes limitations on a person’s
    constitutional rights must closely tailor those limitations to the
    purpose of the condition to avoid being invalidated as
    unconstitutionally overbroad.” (Id. at p. 890.)
    21
    “The vagueness doctrine ‘ “bars enforcement of ‘a statute
    which either forbids or requires the doing of an act in terms so
    vague that men of common intelligence must necessarily guess at
    its meaning and differ as to its application.’ ” [Citations.]’
    [Citation.] A vague law ‘not only fails to provide adequate notice
    to those who must observe its strictures, but also “impermissibly
    delegates basic policy matters to policemen, judges, and juries for
    resolution on an ad hoc and subjective basis, with the attendant
    dangers of arbitrary and discriminatory application.” [Citation.]’
    [Citation.] In deciding the adequacy of any notice afforded those
    bound by a legal restriction, we are guided by the principles that
    ‘abstract legal commands must be applied in a specific context,’
    and that, although not admitting of ‘mathematical certainty,’ the
    language used must have ‘ “reasonable specificity.” ’ ” (In re
    Sheena K., 
    supra,
     40 Cal.4th at p. 890.) We review de novo a
    challenge to a probation condition on the grounds of vagueness or
    overbreadth. (People v. Stapleton (2017) 
    9 Cal.App.5th 989
    , 993.)
    The minor’s vagueness and overbreadth arguments rely
    primarily on In re I.M. (2020) 
    53 Cal.App.5th 929
    . There, a
    juvenile court imposed a probation condition requiring a minor to
    “ ‘to report any police contacts’ to the deputy probation officer
    within 24 hours.” (Id. at p. 931.) The Court of Appeal held this
    condition was vague and overbroad because it “ ‘does indeed leave
    one to guess what sorts of events and interactions qualify as
    reportable,’ ” and “ ‘casts an excessively broad net over what
    would otherwise be activity not worthy of reporting.’ ” (Id. at
    22
    p. 936.) The Court of Appeal rejected a suggested modification of
    the condition to require the minor to report “ ‘any police contacts
    related to criminal activity, arrests, or an officer’s request for the
    minor’s identification.’ ” (Ibid.) The court explained, “[T]his
    proposed modification remains vague as it does not indicate
    whether appellant is required to report police contacts concerning
    criminal activities and arrests based solely on her own conduct or
    whether it also includes criminal activities and arrests of other
    persons which appellant may witness.” (Ibid.)
    The minor asserts the condition the juvenile court imposed
    here is identical to that in In re I.M., but this is inaccurate. The
    condition in In re I.M., supra, 53 Cal.App.5th at page 931,
    required a minor to report “any contacts,” which could include
    innocent contact with police officers such as requests for
    directions. (Cf. People v. Relkin (2016) 
    6 Cal.App.5th 1188
    , 1197
    [concluding a similar instruction would apply if a “defendant says
    ‘hello’ to a police officer”].) Here, the condition applies to police
    contacts “related to criminal activity.” This narrows the scope of
    potential contacts that require reporting and makes clearer to the
    minor what is required of him. The minor hypothesizes that the
    condition does not tell him whether he would have to report
    attending a Black Lives Matter demonstration where police
    officers were present and other people were teargassed, arrested,
    or detained. The minor’s hypothetical does not involve any police
    contact with the minor, merely presence near police officers, so
    the condition by its own terms would not apply. If the minor
    were to speak to the police about the arrests or detention of
    23
    others at this hypothetical rally, though, the condition would
    apply, since the minor would have the requisite contact with the
    police and the arrests and detention would indicate the police
    officers involved believed criminal activity had taken place.
    In re I.M. believed a condition like this would be
    unconstitutional because it does not indicate whether it is limited
    to criminal activity based on the minor’s own conduct or whether
    it includes crimes that the minor may witness. (In re I.M., supra,
    53 Cal.App.5th at p. 936.) We disagree. Giving the condition a
    meaning apparent to a reasonable, objective reader (People v.
    Olguin (2008) 
    45 Cal.4th 375
    , 382) and requiring only
    “ ‘ “reasonable specificity” ’ ” (In re Sheena K., 
    supra,
     40 Cal.4th at
    p. 890), the lack of any limitation regarding the parties
    responsible for the criminal activity indicates that the condition
    applies to both kinds of criminal activity.
    Contrary to the minor’s contentions, however, the condition
    does not sweep too broadly. The purpose of juvenile probation
    conditions is to enhance the reformation and rehabilitation of a
    minor. (Welf. & Inst. Code, § 730, subd. (b).) The condition does
    not require the minor to report casual, inconsequential
    interactions with law enforcement officers, but instead limits
    reports to those interactions that might indicate whether the
    minor’s lifestyle is such that he is present when criminal activity
    occurs. (Cf. People v. Relkin, supra, 
    6 Cal.App.5th 1188
    , 1197
    [finding probation condition overbroad because it was not limited
    to the latter type of contact].) If the minor is present when
    criminal activity takes place, even if perpetrated by others, it
    24
    could indicate to a probation officer that the minor was
    associating with individuals likely to hinder his reformation.
    This demonstrates the condition is sufficiently narrowly tailored
    to the purpose of probation conditions.6
    DISPOSITION
    The matter is remanded to the juvenile court with
    instructions to designate counts 1 (reckless evasion of a peace
    officer in violation of Vehicle Code section 2800.2, subdivision (a))
    and 3 (force-likely assault in violation of section 245,
    subdivision (a)(4)) as felonies or misdemeanors and to exclude
    count 1 from the calculation of the minor’s maximum time of
    confinement.7 In all other respects, the judgment is affirmed.
    BROWN, J.
    WE CONCUR:
    STREETER, ACTING P. J.
    ROSS, J.
    6 We express no view on whether the challenged probation
    condition would survive scrutiny if applied to an adult.
    7  After briefing was complete, the minor asked for leave to
    file a supplemental brief arguing for the retroactive application of
    Senate Bill No. 92 (2021–2022 Reg. Sess.), which amended
    Welfare and Institutions Code section 726 to change the
    calculation of the maximum term of confinement. (Stats. 2021,
    ch. 18, § 7.) We denied that application, because the minor may
    raise that argument on remand when the juvenile court
    recalculates the minor’s maximum time of confinement and
    designates counts 1 and 3 as misdemeanors or felonies.
    
    Judge of the Superior Court of California, City and
    County of San Francisco, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    25
    Trial Court:     Contra Costa County Superior Court
    Trial Judge:     Hon. Barbara Hinton
    Counsel:
    Carrie Kojimoto, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Rob Bonta, Attorney General, Lance Winters, Jeffrey M.
    Laurence, Assistant Attorneys General, Eric D. Share, Katie L.
    Stowe, Deputy Attorneys General, for Plaintiff and Respondent.
    26
    

Document Info

Docket Number: A161118

Filed Date: 11/30/2021

Precedential Status: Precedential

Modified Date: 12/1/2021