People v. Jonathan R.

Filed 9/30/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re JONATHAN R., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE, A145238
Plaintiff and Respondent, (Contra Costa County
v. Super. Ct. No. J1500271)
JONATHAN R.,
Defendant and Appellant.
After Jonathan R. (minor) stabbed another young man during a brawl, he was
alleged in a juvenile wardship petition to have violated Penal Code section 245,
subdivision (a)(1), assault with a deadly weapon other than a firearm, and
subdivision (a)(4), assault by force likely to produce great bodily injury. The juvenile
court found true both violations, as well as enhancement allegations under both violations
of personal use of a deadly weapon and infliction of great bodily injury. Defendant
contends he cannot be found to have committed violations of both subdivisions of section
245 because the two subdivisions merely specify different ways of committing a single
offense. He also argues the deadly weapon enhancement under subdivision (a)(1) is
improper because use of such a weapon is an element of the crime and objects to the
imposition of an electronic search probation condition.
We conclude the minor’s argument that the crimes specified in subdivision (a)(1)
and (4) of Penal Code section 245 are not separate offenses is untenable in light of the
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.B. and II.C.
Supreme Court’s decision in People v. Gonzalez (2014) 60 Cal. 4th 533 (Gonzalez).
Nonetheless, we agree with the minor that he cannot be found to have violated both
offenses because we find the offense specified in subdivision (a)(4), assault by force
likely to produce great bodily injury, is necessarily included within the offense specified
in subdivision (a)(1), assault with a deadly weapon or instrument other than a firearm.
We also find merit in the minor’s other arguments. We therefore vacate the juvenile
court’s findings with respect to section 245, subdivision (a)(4) and strike the deadly
weapon use enhancement under the violation of subdivision (a)(1). In addition, we direct
the entry of a narrower electronic search condition and remand for recalculation of the
minor’s maximum term of confinement and restitution fine.
I. BACKGROUND
In an amended juvenile wardship petition under Welfare and Institutions Code
section 602, subdivision (a), the minor was alleged to have violated Penal Code1
section 245, subdivision (a)(1), assault with a deadly weapon other than a firearm
(count one), and section 245, subdivision (a)(4), assault by force likely to produce great
bodily injury (count two). Both counts also alleged the minor used a deadly weapon, a
knife, and inflicted great bodily injury on the victim. (§§ 12022, subd. (b)(1), 12022.7,
subd. (a).)
Testimony at the contested jurisdictional hearing established that the minor
stabbed another young man in the abdomen during a brawl, using a folding pocket knife
with a blade approximately three to four inches long. The resulting injury required a
five-day hospital stay.
The juvenile court found true both counts of the petition, as well as all
enhancement allegations. The minor was adjudged a ward of the court and committed to
the county’s Youthful Offender Treatment Program for a maximum period of nine years
or until age 21. Among the probation conditions imposed was one requiring the minor to
1
All further statutory references are to the Penal Code.
2
submit his property to a warrantless search at any time, “including any electronic device
& cell phone & access codes.”
II. DISCUSSION
The minor contends the juvenile court erred in convicting him of both
subdivision (a)(1) and (4) of section 245 and argues the enhancement alleging use of a
knife under count one should be stricken because use of a deadly weapon is an element of
the crime of assault with a deadly weapon. He also challenges the imposition of the
probation condition permitting warrantless search of his electronic devices.
A. Multiple Violations of Section 245
1. Governing Law
The statute governing the crime of aggravated assault, section 245, has undergone
a gradual expansion over its history. For much of the first half of the last century, the
section read, “ ‘Every person who commits an assault upon the person of another with a
deadly weapon or instrument or by any means of force likely to produce great bodily
injury is punishable by imprisonment in the state prison . . . , or in a county jail . . . , or by
fine . . . , or by both such fine and imprisonment.’ ” (In re Mosley (1970) 1 Cal. 3d 913,
918, fn. 4; Stats. 1933, ch. 847, § 1, p. 2216.) In 1961, this provision was designated
subdivision (a), and a subdivision (b) was added separately criminalizing aggravated
assault against a peace officer. (Stats. 1961, ch. 802, § 1, p. 2067.) In addition to other
statutory changes to section 245 not pertinent here, subdivision (a) was later split into two
parts, dividing the crime into (1) assault with a deadly weapon other than a firearm or by
force likely to produce great bodily injury, and (2) assault with a firearm. The latter
imposed the new requirement of a minimum six-month jail term. (Stats. 1982, ch. 136,
§ 1, p. 437; see People v. Milward (2011) 52 Cal. 4th 580, 585.) In 1989,
subdivision (a)(3) was added to section 245, specifying the crime of assault with a
machinegun or assault weapon, which carried a mandatory prison term, unlike the other
provisions of subdivision (a). (Stats. 1989, ch. 18, § 1, p. 52.) Finally, in 2011,
subdivision (a)(1) was split into the crimes of assault with a deadly weapon other than a
firearm, which remained subdivision (a)(1), and assault by force likely to produce great
3
bodily injury, which became subdivision (a)(4). Although stated in separate subdivisions,
the two crimes continued to carry the same range of punishments, which were separately
specified in each subdivision. (Stats. 2011, ch. 183, § 1, p. 2394.) As a result of these
changes, subdivision (a) of section 245 now specifies four different crimes, each with its
own elements and range of punishments.2
It has long been accepted that, in general terms, “a person may be convicted of,
although not punished for, more than one crime arising out of the same act or course of
conduct. ‘In California, a single act or course of conduct by a defendant can lead to
convictions “of any number of the offenses charged.” [Citations.]’ [Citation.]
Section 954 generally permits multiple conviction. Section 654 is its counterpart
concerning punishment. It prohibits multiple punishment for the same ‘act or
omission.’ ” (People v. Reed (2006) 38 Cal. 4th 1224, 1226–1227 (Reed).) This general
rule is subject to “[a] judicially created exception,” which “ ‘prohibits multiple
convictions based on necessarily included offenses.’ [Citations.] ‘[I]f a crime cannot be
committed without also necessarily committing a lesser offense, the latter is a lesser
2
Section 245, subdivision (a) now reads:
“(1) Any person who commits an assault upon the person of another with a deadly
weapon or instrument other than a firearm shall be punished by imprisonment in the state
prison for two, three, or four years, or in a county jail for not exceeding one year, or by a
fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.
“(2) Any person who commits an assault upon the person of another with a firearm
shall be punished by imprisonment in the state prison for two, three, or four years, or in a
county jail for not less than six months and not exceeding one year, or by both a fine not
exceeding ten thousand dollars ($10,000) and imprisonment.
“(3) Any person who commits an assault upon the person of another with a
machinegun, as defined in Section 16880, or an assault weapon, as defined in
Section 30510 or 30515, or a 50 BMG rifle, as defined in Section 30530, shall be
punished by imprisonment in the state prison for 4, 8, or 12 years.
“(4) Any person who commits an assault upon the person of another by any means
of force likely to produce great bodily injury shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county jail for not exceeding one year, or
by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.”
4
included offense within the former.’ ” (Id. at p. 1227.) Many cases have found that only
a single offense can arise from a single statute, but that has never been a hard-and-fast
rule.3
The Supreme Court’s latest word on the issue of multiple convictions is Gonzalez,
supra, 60 Cal. 4th 533. The Gonzalez defendant sexually assaulted a woman who had
been rendered unconscious by intoxication. He was convicted separately under two
subdivisions of section 288a, which prohibit oral copulation of an unconscious person
(id., subd. (f)) and oral copulation of a person rendered defenseless by intoxication (id.,
subd. (i)). The defendant contended he could not be convicted of both offenses because
he had committed a single act of oral copulation. (Gonzalez, at p. 536.) His appeal was
premised on Craig, supra, 17 Cal. 2d 453, 455, in which the defendant was convicted of
two counts of rape based on a single act of forcible intercourse with an underage girl.
This conduct violated two subdivisions of section 261, which separately criminalized sex
with a minor and forcible intercourse. In requiring consolidation of the convictions, the
Craig court reasoned: “Under [section 261], but one punishable offense of rape results
from a single act of intercourse, although that act may be accomplished under more than
one of the conditions or circumstances specified in the [statutory] subdivisions. These
subdivisions merely define the circumstances under which an act of intercourse may be
deemed an act of rape; they are not to be construed as creating several offenses of rape
based upon that single act. . . . The victim was not doubly outraged, once because she was
forcibly attacked and once because she was under 18 years of age. There was but a single
outrage and offense.” (Id. at p. 455.) The court expressly distinguished conduct that
3
Compare People v. Craig (1941) 17 Cal. 2d 453, 455 (Craig) (one offense of rape
results from a single act of unlawful intercourse, despite violating more than one statutory
subdivision); People v. Muhammad (2007) 157 Cal. App. 4th 484, 493–494 (same for
stalking); People v. Ryan (2006) 138 Cal. App. 4th 360, 366–367 (same for forgery), with
People v. Toure (2015) 232 Cal. App. 4th 1096, 1106 (defendant can suffer convictions
under more than one subdivision of statute proscribing driving under the influence and
causing bodily injury).
5
violated more than one statute, noting different statutes are “based upon an independent
public policy.” (Id. at p. 458.)
Although the circumstances of Craig would appear to be materially
indistinguishable from those in Gonzalez, the Gonzalez court permitted both convictions
for oral copulation to stand, basing its conclusion on an analysis of the statutory structure.
(Gonzalez, supra, 60 Cal.4th at pp. 537–538.) Within the statute, section 288a,
subdivision (a) defines oral copulation in general terms. The subsequent subdivisions of
the statute describe the various circumstances under which oral copulation, as so defined,
is illegal. Each subdivision describes a distinct circumstance and contains a specific
punishment, applicable solely to the circumstances described in the subdivision. In
inferring a legislative intent to permit convictions for violations of both subdivisions (f)
and (i), the Gonzalez court concluded: “These offenses differ in their necessary
elements—an act of oral copulation may be committed with a person who is unconscious
but not intoxicated, and also with a person who is intoxicated but not unconscious—and
neither offense is included within the other. [Citation.] [¶] . . . Each subdivision sets forth
all the elements of a crime, and each prescribes a specific punishment. Not all of these
punishments are the same. That each subdivision of section 288a was drafted to be self-
contained supports the view that each describes an independent offense, and therefore
section 954 is no impediment to a defendant’s conviction under more than one such
subdivision for a single act.” (Id. at p. 539.)
Gonzalez distinguished Craig on the basis of the different structure of the two
statutes involved. At the time Craig was decided, section 261 stated, “ ‘[r]ape is an act of
sexual intercourse, accomplished with a female not the wife of the perpetrator, under
either of the following circumstances,’ ” and thereafter listed a variety of circumstances
in separately numbered subparagraphs. No individual punishments were specified for the
different circumstances. (Gonzalez, supra, 60 Cal.4th at p. 539, fn. 2.) According to
Gonzalez, Craig “simply concluded, based on the wording and structure of the statute,
that former section 261 set forth only one offense that could be committed under several
different circumstances, as described in its several subdivisions. This conclusion flowed
6
naturally from the wording and structure of former section 261. . . . [¶] . . . [¶]
Section 288a is textually and structurally different from former section 261.” (Gonzalez,
at p. 539, fn. omitted.)
2. Violations of Section 245, Subdivision (a)(1) and (4)
a. The Statutory Structure of Section 245
The statutory structure of section 245 is indistinguishable from that of
section 288a. Each subdivision of section 245 sets out different circumstances under
which a person can commit aggravated assault, and each subdivision specifies the
punishment applicable to those circumstances. The reasoning of Gonzalez would
therefore classify each subdivision as a separate offense and permit more than one
conviction based upon the violation of more than one subdivision of section 245.
The minor encourages us to find subdivision (a)(1) and (4) of section 245 do not
constitute separate offenses on the basis of the legislative history of the amendment
creating subdivision (a)(4), which described the legislation as a “technical,
nonsubstantive” change. (Stats. 2011, ch. 183.) According to the bill’s author, the
purpose of the amendment was to make it easier for prosecutors and defense attorneys to
determine whether a defendant’s past aggravated assault conviction involved the use of a
weapon when examining a defendant’s criminal history, since past aggravated assault
convictions involving the use of a weapon are treated differently for certain purposes than
those not involving a weapon. (Assem. Com. on Public Safety, Analysis of Assem. Bill
No. 1026 (2011–2012 Reg. Sess.) Apr. 26, 2011, pp. 1–2.) Because criminal histories
typically list prior crimes according to the statute violated, a citation to section 245,
subdivision (a)(1) was ambiguous in this respect prior to the amendment. (See Assem.
Com. on Public Safety, Analysis of Assem. Bill No. 1026 (2011–2012 Reg. Sess.)
Apr. 26, 2011, p. 2.) The minor argues no separate offense was created by the
amendment because the two clauses specified different methods of committing a single
offense before the amendment and the Legislature expressed no intent to change that
situation in enacting the amendment.
7
The rationale of Gonzalez precludes such an analysis. The court held, in effect,
that the Legislature is deemed to have intended to create separate offenses whenever a
statute isolates violations with separate elements and punishments in separate
subdivisions. Under Gonzalez, this statutory structure was held to be an element of the
plain language of the statute, and that language was held to be unambiguous in creating
separately convictable offenses. Given the absence of ambiguity, expressions of intent in
a statute’s legislative history are irrelevant to its interpretation. (Gonzalez, supra,
60 Cal.4th at pp. 537–538.)
b. Necessarily Included Offenses
While we do not accept the minor’s reasoning, we find merit in his general point.
Gonzalez acknowledges an exception to its general rule. As the court noted in discussing
the subdivisions violated by the defendant: “These offenses differ in their necessary
elements . . . and neither offense is included within the other.” (Gonzalez, supra,
60 Cal.4th at p. 539.) In other words, the court recognized that the general rule
prohibiting multiple convictions for necessarily included offenses (Reed, supra,
38 Cal.4th at p. 1227) operates with respect to separate subdivisions within a single
statute.4 Because, as discussed below, we conclude assault with a deadly weapon other
than a firearm includes the elements of assault by force likely to produce great bodily
injury, such that a person cannot commit the former without at the same time committing
the latter, a person cannot be convicted of both offenses on the basis of a single act,
notwithstanding their inclusion in separate, self-contained subdivisions of section 245.
The separate aspects of aggravated assault found in subdivision (a)(1) and (4) of
section 245 have not previously been considered in the terms associated with lesser
4
The language of Gonzalez echoes the “elements test” for determining whether
one offense is a lesser included offense of another. “ ‘The elements test is satisfied if the
statutory elements of the greater offense include all of the statutory elements of the lesser
offense, such that all legal elements of the lesser offense are also elements of the greater.
[Citation.] In other words, “ ‘[i]f a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the former.’ ” ’ ”
(People v. Robinson (2016) 63 Cal. 4th 200, 207.)
8
included offenses because, until 2011, the subdivisions were alternative provisions within
a single statutory subdivision. As section 245 was constructed prior to 2011, a person
could commit aggravated assault by committing assault either “with a deadly weapon or
instrument other than a firearm or by any means of force likely to produce great bodily
injury.” (Former § 245, subd. (a)(1).) Use of a deadly weapon other than a firearm or
force likely to produce great bodily injury were therefore two means to commit the same
offense, rather than different offenses. When the two aspects are considered separately,
however, it becomes clear the latter is necessarily committed when the former occurs.
The crime of assault is “an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” (§ 240; People v. Navarro (2013)
212 Cal. App. 4th 1336, 1344.) It is unnecessary for any actual injury to occur. (People v.
White (2015) 241 Cal. App. 4th 881, 884.)
The distinction between assault with a deadly weapon other than a firearm and
assault by force likely to produce great bodily injury was explored in People v. Aguilar
(1997) 16 Cal. 4th 1023 (Aguilar), in which the court considered “whether hands or feet
can constitute ‘deadly weapons’ within the meaning of the statute.” (Id. at p. 1026.) In
Aguilar, the defendant had severely beaten and kicked the victim, and the prosecutor
argued to the jury a conviction for aggravated assault was appropriate because hands and
feet may be deadly weapons within the meaning of former section 245,
subdivision (a)(1). (Aguilar, at p. 1029.) In disapproving the prosecutor’s argument, the
court noted weapons not inherently deadly “are defined by their use in a manner capable
of producing great bodily injury.” (Id. at p. 1030.) For that reason, the clause “force
likely to produce great bodily injury” would be rendered redundant if hands and feet
could be considered “weapons” or “instruments.” (Ibid.) Rather, the separate clause
“force likely to produce great bodily injury” was included in the statute to cover the
application of such force without the use of an instrument. (Ibid.)
While the court found the prosecutor’s argument to be improper, it concluded the
prosecutor’s argument was harmless, using reasoning directly pertinent to the issue
before us. “Ultimately . . . , the jury’s decisionmaking process in an aggravated assault
9
case under [former] section 245, subdivision (a)(1), 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 used.” (Aguilar, supra, 16 Cal.4th at p. 1035.)
That is, if the defendant acted by means of a weapon other than a firearm, it was
necessary for the jury to find the defendant applied force likely to produce great bodily
injury, regardless of whether the force was applied by means of an instrument or by
hands and feet. As the court concluded, 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.” (Id. at p. 1036.) Both aspects of former section 245, subdivision (a)(1)
required the attempted or actual use of force likely to produce great bodily injury; they
differed only in that subdivision (a)(1) required force to be applied through use of a
weapon or other instrument.
Aguilar is conclusive here. When a defendant commits an assault using an
instrument other than a firearm, the instrument is considered to be a “deadly weapon,”
and therefore to qualify under section 245, subdivision (a)(1), only if the instrument is
used in a manner likely to produce death or great bodily injury. For that reason, when
assault with a deadly weapon other than a firearm is found to have occurred, the trier of
fact necessarily must have concluded the defendant used or attempted to use force likely
to produce great bodily injury, since that likelihood is what makes a weapon or
instrument “deadly.” If the use of the instrument was not likely to produce great bodily
injury, the defendant’s conduct could not satisfy subdivision (a)(1). Because both
subdivisions require the use or attempted use of force likely to produce great bodily
injury, subdivision (a)(4) does not “differ in [its] necessary elements” from
subdivision (a)(1), and subdivision (a)(4) is “included within” subdivision (a)(1).5
5
This is true as well when a defendant is convicted of using a “deadly weapons as
a matter of law,” such as a dirk or blackjack. (Aguilar, supra, 16 Cal.4th at pp. 1029,
1037, fn. 10.) While no jury finding of force likely to produce great bodily injury is
required in these circumstances, those instruments are declared “deadly” weapons as a
10
(Gonzalez, supra, 60 Cal.4th at p. 539.) A defendant who has been convicted of a
violation of subdivision (a)(1) therefore cannot also suffer a conviction under
subdivision (a)(4) based on the same assault.6
The Attorney General, citing Aguilar, argues subdivision (a)(4) of section 245 is
not included within subdivision (a)(1) because a violation of subdivision (a)(1) requires
the use of a weapon, while subdivision (a)(4) is addressed to an assault using only hands
or feet. The argument reflects the Legislature’s original motivation in adding the phrase
“force likely to produce great bodily injury” to section 245, which was to include violent
assaults committed without the use of a weapon or other instrument within the aggravated
assault statute. (Aguilar, supra, 16 Cal.4th at pp. 1030–1031.) We would agree with the
Attorney General if the Legislature had expressly included this limitation in
subdivision (a)(4) by excluding assaults carried out by means of an instrument. In that
case, the two offenses would be mutually exclusive, rather than overlapping. That is not,
however, the language of subdivision (a)(4). As written, the subdivision encompasses
any use of force likely to produce great bodily injury, which necessarily includes the
application of that force by use of a weapon or other instrument. The juvenile court
recognized as much when it found the minor to have violated both provisions on the basis
of an assault using a knife. Were subdivision (a)(4) restricted in the manner argued by
the Attorney General, the minor’s conviction under subdivision (a)(4) would have been
unsupported by the evidence.
The Attorney General also argues that subdivision (a)(4) of section 245 requires
the application of force, while subdivision (a)(1) does not. The argument ignores the
matter of law precisely because they “are weapons in the strict sense of the word and are
‘dangerous or deadly’ to others in the ordinary use for which they are designed.” (People
v. Raleigh (1932) 128 Cal. App. 105, 108.) Use of these weapons necessarily involves the
use of force likely to produce death or serious injury. (See People v. Lochtefeld (2000)
77 Cal. App. 4th 533, 541 [to be deadly weapon as a matter of law, weapon must be
“capable of inflicting great bodily injury”].)
6
Because the issue is not before us, we offer no opinion whether a defendant who
attacks or attempts to attack another both with a deadly weapon and with hands or feet,
the latter in a manner likely to produce great bodily, can be convicted of both offenses.
11
definition of assault, which is incorporated into section 245. An assault includes an
attempt to apply force as well as the actual application of force. It is commonly held that
a defendant need not make any physical contact with the victim to commit aggravated
assault. (E.g., People v. White, supra, 241 Cal.App.4th at p. 886; People v. Brown (2012)
210 Cal. App. 4th 1, 7 [“Because the statute speaks to the capability of inflicting
significant injury, neither physical contact nor actual injury is required to support a
conviction.”].) Under subdivision (a)(4), a powerful punch that misses is an aggravated
assault to the same degree as the same punch that lands, at least in theory. (E.g., People
v. Leonard (2014) 228 Cal. App. 4th 465, 488 [evidence that person swung fist toward the
victim with force sufficient to smash a car window supports conviction for aggravated
assault].)
We are aware In re Mosley, supra, 1 Cal. 3d 913, states that assault by means of
force likely to produce great bodily injury is not a lesser included offense of assault with
a deadly weapon under former section 245. (Mosley, at p. 919, fn. 5.) At the time
Mosley was decided, however, the two were not separate offenses. As discussed above,
all aspects of the crime of aggravated assault were encompassed within a single statutory
paragraph that included both provisions. (Id. at p. 918, fn. 4.) As the court explained its
reasoning: “Section 245 . . . defines only one offense, to wit, ‘assault upon the person of
another with a deadly weapon or instrument or by any means of force likely to produce
great bodily injury. . . .’ The offense of assault by means of force likely to produce great
bodily injury is not an offense separate from—and certainly not an offense lesser than
and included within—the offense of assault with a deadly weapon.” (Id. at p. 919, fn. 5.)
The explanation makes clear that the court’s conclusion was based on the structure of the
statute, which specified use of a deadly weapon and use of force likely to produce great
bodily injury as alternative means to commit the same offense, aggravated assault. (See
People v. Martinez (2005) 125 Cal. App. 4th 1035, 1043 [“As is readily apparent, [former
section 245, subdivision (a)(1)] describes two different ways of committing a prohibited
assault: (1) by use of a deadly weapon or instrument other than a firearm or (2) by means
of force likely to produce great bodily injury.”].)
12
Once the Legislature separated these provisions into different subdivisions, the
logic of Mosley no longer holds. Under the reasoning of Gonzalez, the separation of the
two aspects of aggravated assault into separate, self-contained subdivisions created two
offenses where formerly there was one. Considered as separate offenses, for the reasons
discussed above, assault by means of force likely to produce great bodily injury is
necessarily included within assault with a deadly weapon.
For this reason, the court’s true findings with respect to count two, which alleged a
violation of subdivision (a)(4) of section 245, must be vacated, and the enhancements
alleged in count two must be stricken. Given these modifications, we also must vacate
the juvenile court’s calculation of the minor’s maximum term of confinement and
restitution fine.7
B. Enhancement for Use of a Knife
The minor contends the juvenile court’s true finding of the enhancement alleging
use of a deadly weapon in count one also must be vacated because the use of a deadly
weapon is an element of a violation of section 245, subdivision (a)(1).
Section 12022, subdivision (b) imposes an additional year of imprisonment for
“[a] person who personally uses a deadly or dangerous weapon in the commission of a
felony or attempted felony . . . , unless use of a deadly or dangerous weapon is an element
of that offense.” It has long been accepted that an allegation under section 12022,
subdivision (b) cannot be used to enhance a conviction for assault by means of a deadly
weapon because the enhancement allegation duplicates an element of the offense.
(People v. McGee (1993) 15 Cal. App. 4th 107, 113–115.) The section 12022
enhancement under count one, for violation of section 245, subdivision (a)(1), must
therefore be stricken.
7
We are persuaded by the minor that there is uncertainty over the court’s
restitution fine. At the hearing, the court set the total fine at $200, but the dispositional
order specifies $200 per felony. We therefore vacate the fine and direct its recalculation
on remand. We do not mean to imply that either fine is unavailable or improper under
section 245, subdivision (a)(1).
13
The Attorney General does not dispute this conclusion. She merely argues that a
remand is unnecessary on this ground because the juvenile court does not appear to have
taken the enhancement into account in calculating the minor’s maximum term of
confinement.8 Because we must remand for recalculation of the maximum term of
confinement as a result of the vacated violation under subdivision (a)(4) of section 245,
the argument is moot.
C. Electronic Search Condition
The minor contends the electronic search condition, which permits the warrantless
search of “any electronic device & cell phone & access codes,” is vague and overbroad
and violates his rights to privacy and free speech under the First Amendment.9
The validity of electronic search conditions has been the subject of a number of
published decisions over the past year. We adhere to the position set out in our decision
in In re P.O. (2016) 246 Cal. App. 4th 288 (P.O.), in which we held that an unrestricted
electronic search condition like that imposed by the juvenile court does not violate the
privacy interests of a ward, but it is overbroad in failing to limit the information to which
the probation office has access. As we explained, an electronic search condition is
constitutionally permissible because it is reasonably related to future criminality, as that
concept was defined in People v. Olguin (2008) 45 Cal. 4th 375. (P.O., at pp. 295–296.)
Under Olguin, “a probation condition that enables probation officers ‘to supervise [their]
charges effectively is . . . “reasonably related to future criminality” ’ [Citation.] . . . ‘even
if [the] condition . . . has no relationship to the crime of which a defendant was
convicted.’ ” (P.O., at p. 295.) Because access to a ward’s social media accounts permits
the probation office to monitor the ward’s compliance with other probation conditions, it
8
The juvenile court did not explain its calculation of the maximum term.
9
The minor did not object to this condition below and therefore forfeited his
objection. (In re Vincent G. (2008) 162 Cal. App. 4th 238, 246.) We exercise our
discretion to consider the constitutional issue, to the extent possible “without reference to
the sentencing record.” (People v. Rodriguez (2013) 222 Cal. App. 4th 578, 585.)
14
constitutes a permissible infringement on the ward’s First Amendment interests under
Olguin.
On the other hand, any probation condition that imposes limits on a minor’s
constitutional rights must be tailored to the purpose of the condition to avoid
unconstitutional overbreadth. (P.O., supra, 246 Cal.App.4th at p. 297.) The juvenile
court’s summarily phrased condition is overbroad because it grants the probation office
access to any personal account maintained by the minor on any Web site that is
accessible through his phone, personal computer, or other “electronic device.” As we
explained in P.O., an electronic search probation condition can validly grant the
probation office access only to information pertinent to monitoring the minor’s
compliance with other probation conditions. (Id. at pp. 297–298.) We therefore direct
entry of a modified electronic search condition.
III. DISPOSITION
The juvenile court’s findings with respect to the minor’s violation of section 245,
subdivision (a)(4), alleged in count two, and the juvenile court’s calculation of the
minor’s maximum term of confinement and restitution fine are vacated. The
enhancements alleged under count two and the enhancement allegation under
section 12022, subdivision (b)(1) in count one are stricken. The matter is remanded to
the juvenile court for entry of a new detention hearing order reflecting these
modifications, recalculation of the minor’s maximum term of confinement and restitution
fine in light of the modifications, and entry of a new dispositional order reflecting the
recalculated maximum term of confinement and fine.
In addition, the search condition of the dispositional order, which currently reads,
“Submit person, property, any vehicle under minor’s control, and residence to search and
seizure by any peace officer any time of the day or night with or without a warrant[,]
including any electronic device & cell phone & access codes,” is modified to read:
“Submit your person and any vehicle, room, or property under your control to a search by
the probation officer or a peace officer, with or without a search warrant, at any time of
the day or night. Submit all electronic devices under your control to a search of any
15
medium of communication reasonably likely to reveal whether you are involved with
drugs or are otherwise in violation of the remaining probation conditions, with or without
a search warrant, at any time of the day or night, and provide the probation or peace
officer with any passwords necessary to access the information specified. Such media of
communication includes text messages, voicemail messages, photographs, e-mail
accounts, and social media accounts.”
16
_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Dondero, J.
A145238
17
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Theresa J. Canepa
Counsel:
Gail E. Chesney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence,
Assistant Attorneys General, Ronald E. Niver and Joan Killeen, Deputy Attorneys
General for Plaintiff and Respondent.
18