Filed 3/27/15 In re E.G. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re E.G., a Person Coming Under the                                H040886
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. 3-13-JV40390A)


THE PEOPLE,

         Plaintiff and Respondent,

             v.

E.G.,

         Defendant and Appellant.



                                                   INTRODUCTION
         Appellant E.G. admitted the allegations that he committed an assault by means of
force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))1 and grand
theft (§§ 484-487, subd. (c)). The juvenile court declared E.G. a ward of the court and
committed him to the county Juvenile Rehabilitation Facilities, Enhanced Ranch Program
(the Ranch) for six to eight months, followed by probation. The court imposed various
terms of probation. E.G. raises several contentions on appeal. First, E.G. contends that
the juvenile court abused its discretion in committing him to the Ranch without further
         1
         All further statutory references are to the Penal Code, unless otherwise
indicated.
investigating other options. E.G. also challenges a no-contact probation condition on the
ground that it is unconstitutionally vague. Lastly, E.G. contends, and the Attorney
General agrees, that the case should be remanded as the juvenile court did not expressly
find whether his grand theft offense was a misdemeanor or a felony. As we will explain
below, we find no error in the court’s determination to commit E.G. to the Ranch.
However, we will reverse and remand the matter for the juvenile court to declare whether
the offense is a felony or a misdemeanor, and we will modify the no-contact probation
condition.
                                STATEMENT OF THE CASE
       On November 26, 2013, the district attorney filed a juvenile wardship petition
(Petition A) under Welfare and Institutions Code section 602, subdivision (a), alleging
that on November 21, 2013, E.G. committed an assault with a deadly weapon (§ 245,
subd. (a)(1)). It was further alleged that E.G. personally used a knife (§§ 667, subd. (b)
& 1192.7), and inflicted great bodily injury (§§ 12022.7, subd. (a) & 1203, subd. (e)(3)).
       On December 19, 2013, the district attorney filed a second juvenile wardship
petition (Petition B), alleging that on August 27, 2013, E.G. committed robbery in the
second degree (§§ 211-212.5, subd. (c)). On the same date, the district attorney amended
Petition A to add count two, a felony assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4)) and amended Petition B to add count two, grand theft
from a person (§§ 484 & 487, subd. (c)). E.G. admitted count two of each amended
petition, and the district attorney dismissed count one of each petition and the special
allegations.
       On February 24, 2014, after a contested dispositional hearing, the juvenile court
declared E.G. a ward of the court and set the maximum period of confinement to four
years eight months. The court committed E.G. to the Ranch for six to eight months,
which was to be followed by probation. The court imposed several terms and conditions


                                             2
of probation, including a condition prohibiting E.G. to “have no contact of any type with
Daniel K., Mitsuwa Market Place.”
                                STATEMENT OF THE FACTS
   A. Petition A
       On November 21, 2013, E.G. and the victim got into an altercation in front of the
Santa Clara Billiards. The altercation escalated into a fist fight, and E.G. took out a
knife. He stabbed the victim several times, resulting in injuries to the abdomen and arm.
E.G. then fled from the scene. The victim was hospitalized, required surgery, and was in
the Intensive Care Unit (ICU) for two days.
   B. Petition B
       On August 27, 2013, E.G., who was with co-participant, D.K., hid two cans of
Monster energy drink in his backpack while he was at a Mitsuwa Market Place. E.G. and
D.K. attempted to leave the store without paying for the drinks, but the store security
guard stopped them. When the security guard grabbed the backpack, E.G. punched the
security guard in the face. Both E.G. and D.K. fled the scene.
                                        DISCUSSION
   A. The Juvenile Court Did Not Err in Committing E.G. to the Ranch
          1. Relevant Proceedings
       At the change of plea hearing, E.G. asked to be released on the electronic
monitoring program (EMP). The court expressed its concern with releasing E.G.,
specifically pointing to a recent incident where E.G. assaulted a staff member in juvenile
hall. The court stated “I am very distressed about that [incident], [E.G.]. Because here
you are, in a very highly supervised setting, and you’re hitting an authority figure.” The
court then stated that it needed more information and stated that it would “follow the
recommendation of probation today and have [E.G.] stay in custody where I am going to
order a psych eval[.] to assist us with the types of services that we can help [E.G.] with
issues that we are seeing and in the family as well.”
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        On January 2, 2014, the probation department submitted a social study on E.G.
The report noted that on November 24, 2013, E.G. was admitted to juvenile hall, where
he had since been exhibiting poor behavior. The report specified that he had failed to
follow rules, and on December 9, 2013, he received an incident report for assaulting a
staff member. The social study also included information regarding E.G.’s background,
family issues, education, and risk assessment. E.G. was born and raised in El Salvador.
He lived with his grandparents until the age of 15, when his parents sent for him to live
with them in the United States. E.G. stated that he had a good relationship with his father
and his siblings, but reported that his mother was physically and mentally abusive. He
claimed that his mother was an alcoholic. With respect to his educational background,
E.G. was enrolled in high school, but had failing grades and had 234 absences. E.G.’s
risk of recidivism was measured by the Juvenile Assessment and Intervention System
(JAIS). The JAIS revealed that E.G. had general instability in his life. Based on the
information from the social study, the probation officer opined that E.G. “is in need of a
stable, focused environment where he will be held accountable for his violent criminal
behavior, while granting the opportunity to receive the services appropriate to address his
needs . . . .”
        On January 15, 2014, Dr. Robert Perez submitted a psychological evaluation,
which was based on a review of E.G.’s record, an interview with E.G. at juvenile hall,
and a phone interview with E.G.’s mother. Dr. Perez administered several tests; the
results of which indicated that E.G. had significant intellectual limitations. Dr. Perez also
diagnosed E.G. with “adolescent antisocial behavior and adjustment disorder.” The
doctor deduced from the fact that there was no previous history of “acting out” behavior
that the stresses related to immigration had a significant impact on his present behavior.
Dr. Perez observed that the “acting out” behavior had been predominantly displayed
within the home setting. Additionally, the doctor noted that E.G. had a “very significant
level of conflict with his parents (particularly with his mother).” The doctor specifically
                                             4
mentioned E.G.’s frequent arguments with his mother, especially when his parents are
intoxicated. Dr. Perez recommended that psychiatric treatment was appropriate. He
stated that wraparound services would be required and that “[p]lacement would be most
beneficial to the minor.” (Emphasis omitted.) He also stated a need for family
counseling and sobriety within the home.
       On February 10, 2014, the juvenile court began the contested dispositional
hearing, but continued it to a later date so that E.G. and his family could be formally
assessed for wraparound services. The court explained that it was ordering wraparound
service screening because it was the “court’s obligation pursuant to the law . . . to explore
every single avenue, short of the most restrictive placement, which would be . . . the
Ranch . . . unless we go up to [Division of Juvenile Justice].”
       Prior to the continuation of the dispositional hearing, the probation department
prepared a supplemental report. The report mentioned that E.G.’s case was screened and
denied acceptance for wraparound services based on the “severity of the offense and the
lack of contributing factors, as well as, the minor’s continued defiant and assaultive
behavior in Juvenile Hall.” The report also stated that he had been “demoted to
restructure program again . . . for cumulative disciplines.” Based on several factors,
including the severity of the offense, E.G.’s accountability, his needs, his psychological
evaluation, and public safety, the probation officer stated that E.G. would need a
structured environment where he would receive intensive supervision, individual and
family counseling, and appropriate educational resources. The probation officer
recommended that E.G. be committed to the Ranch. The probation officer also
recommended intensive family counseling, victim awareness programs and group
counseling, educational programs, and wraparound services following the completion of
the Ranch program. Lastly, the probation officer recommended terms and conditions of
probation.


                                              5
       Additionally, the probation department submitted a memorandum regarding the
wraparound services screening. E.G.’s case was screened by the Resource and Intensive
Services Committee (RISC), which found E.G. ineligible for wraparound services due to
“the nature of his crime, lack of remorse towards the victims, defiance of authority while
detained in Juvenile Hall, and a lack for a suitable home environment.” RISC
recommended that E.G.’s case be referred to San Andreas Regional Center (SARC) for
further examination and for him to complete an IQ test. RISC also recommended
programs for the parents including Alcoholics Anonymous classes prior to E.G.’s return
home. In addition, RISC referred the case to East Field Ming Quong UPLIFT program,
which provides services for adolescents with serious emotional disturbances.
       On February 24, 2014, the juvenile court resumed the contested dispositional
hearing. At the hearing, E.G. raised the issue of the RISC’s recommendation that he be
referred to SARC and to the UPLIFT program. E.G. argued that as an alternative to the
Ranch, the regional services would be able to address his issues. E.G. also claimed that
he was doing better in juvenile hall, and he requested that he be released on electronic
monitoring.
       The juvenile court responded that “the record reflects that [E.G.] hasn’t done well
in the hall until the last week or so.” The court expressed that though it ordered the rules
to be provided in Spanish, it nonetheless had concerns with E.G.’s ability to understand
the rules. The court noted that it was “not sure how much [E.G.’s] lack of remorse and
defiance towards authority . . . is a communications issue and or a function of his
cognitive abilities.” Additionally, the court mentioned “it appears there is a lack of a
suitable home environment to even begin the wrap around services. In fact, he says he
qualifies possibly for the intensive wrap services but . . . that resource is not available at
this time. But it also recommends that the parents attend the Parent Project and that
mother participate in Alcoholics Anonymous before your client can even be returned
home.”
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       The juvenile court emphasized the seriousness of E.G.’s crimes and his pattern of
assaultive behavior: “In this case there was a fight that resulted in three knife wounds.
Your client wielded a knife. I think it’s certainly disputable whether or not your client
initiated the fight, nevertheless, he was using a knife. He injured the victim in the armpit,
the right tricep and the abdomen puncturing his kidney, causing internal bleeding and
causing the victim to be in I.C.U. for two days and have to have surgery. This was a very
serious and violent act. . . . [¶] There was a prior incident where he assaulted a store
employee as he was leaving with a theft of two Monster drinks. And then there was more
assaultive behavior in the hall. And my fear is that unless the right amount—the right
balance of family intervention and services to your client, [E.G.], services to you and
your family, I am concerned about public safety.” The court followed the
recommendation of probation and sentenced E.G. to a minimum of six months at the
Ranch. The court concluded that probation “has demonstrated that this is in the minor’s
best interest and consistent with public safety.”
          2. Analysis
       “A juvenile court’s commitment order may be reversed on appeal only upon a
showing the court abused its discretion. [Citation.] ‘ “We must indulge all reasonable
inferences to support the decision of the juvenile court and will not disturb its findings
when there is substantial evidence to support them.” ’ [Citation.]” (In re Robert H.
(2002) 96 Cal.App.4th 1317, 1329-1330.) According to our Supreme Court in In re
Eddie M. (2003) 31 Cal.4th 480, 507: “Under [Welfare and Institutions Code] section
202, juvenile proceedings are primarily ‘rehabilitative’ [citation], and punishment in the
form of ‘retribution’ is disallowed [citation]. Within these bounds, the court has broad
discretion to choose probation and/or various forms of custodial confinement in order to
hold juveniles accountable for their behavior, and to protect the public. [Citation.]”
       At the dispositional hearing, the court is required to “receive in evidence the social
study of the minor made by the probation officer” as well as “any other relevant and
                                              7
material evidence that may be offered.” (Welf. & Inst. Code, § 706.) Additionally,
Welfare and Institutions Code section 725.5 lists several factors to be considered “in
addition to other relevant and material evidence, (1) the age of the minor, (2) the
circumstances and gravity of the offense committed by the minor, and (3) the minor’s
previous delinquent history.”
       E.G. argues that the juvenile court abused its discretion in failing to consider other
regional services. Specifically, he contends that the court erred in not following RISC’s
recommendation that E.G. be referred to SARC or the UPLIFT program. However, even
if the regional services would have been a suitable option, the court is not required to
follow any particular order in placement from least to most restrictive. “[T]he court
[does not] necessarily abuse its discretion by ordering the most restrictive placement
before other options have been tried. [Citations.]” (In re Eddie M., supra, 31 Cal.4th at
p. 507.)
       Here, the record shows that the juvenile court considered the psychological
evaluation, the social study, and other probation reports in deciding to commit E.G. to the
Ranch. The information provided to the court revealed that E.G. was 17 at the time of the
assault incident. Although he had no prior offenses, the crimes here were very serious
and violent. With respect to the assault offense, E.G. stabbed the victim multiple times,
and the victim required surgery and intensive care for two days. As noted by the juvenile
court, even if E.G. did not initiate the fight, he nonetheless used a knife. With respect to
his theft offense, E.G. also exhibited violent behavior by punching the security guard in
the face. The gravity of the offense is a proper consideration at disposition. (In re Robert
H., supra, 96 Cal.App.4th at p. 1330; see also Welf. & Inst. Code, § 725.5.)
       In addition to the violent nature of E.G.’s offenses, the probation report noted that
E.G.’s aggressive and antisocial behavior continued in juvenile hall. He continued to
break the rules, and in one instance, he assaulted a staff member. E.G. was also demoted
in juvenile hall due to his multiple disciplinary issues. Moreover, the social study and the
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psychological evaluation revealed that E.G. had an unstable home environment, as he had
a “very significant level of conflict” with particularly his mother. The reports also
indicated that his mother had problems with alcohol. Additionally, the psychological
evaluation noted that E.G. had an anti-social disorder and had recent issues with “acting-
out” in the home setting. E.G. was also failing in school and had issues with school
attendance.
       Based on all these facts, the juvenile court appropriately reasoned that
commitment to the Ranch would be the best option given the seriousness of the crime,
E.G. continued display of aggression and anti-social behavior, the need to ensure
community safety, the lack of a suitable home environment, and the services available to
E.G. at the Ranch. We thus conclude that on this record, the court properly exercised its
discretion in committing E.G. to the Ranch.

   B. The No-Contact Probation Condition

       Next, E.G. contends that the probation condition requiring that he “have no
contact of any type with Daniel K., Mitsuwa Market Place” is unconstitutionally vague
and must be modified to include an express knowledge requirement.2
       “[P]robation conditions may be challenged on the grounds of unconstitutional
vagueness and overbreadth.” (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) We
review such constitutional challenges de novo. (In re Shaun R. (2010) 188 Cal.App.4th
1129, 1143.)
       “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

       2
          The issue of whether a no-contact probation condition must be modified to
explicitly include a knowledge requirement is currently pending before our Supreme
Court in In re A.S. (2014) 227 Cal.App.4th 400 (review granted Sept. 24, 2014,
S220280).
                                              9
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. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875,
890.) “California appellate courts have found probation conditions to be
unconstitutionally vague or overbroad when they do not require the probationer to have
knowledge of the prohibited conduct or circumstances.” (People v. Kim (2011) 193
Cal.App.4th 836, 843.)
       In this case, the juvenile court adopted the conditions as recommended by the
probation department. The court did not give further explanation, commentary, or
instruction on any of the conditions, including the no-contact probation condition. E.G.
argues that, absent a knowledge requirement, the no-contact condition is vague because
he could inadvertently violate the condition “by accidentally coming into contact with the
victim in everyday social situations . . . .”
       Although it is unlikely that a probation officer or the juvenile court would deem an
accidental encounter with the victim as a violation of the no-contact condition, we will
nonetheless modify the condition for the sake of clarity. The condition should now read:
“18. That said minor shall not knowingly have contact of any type with Daniel K.,
Mitsuwa Market Place.”

   C. An Express Declaration of E.G.’s Grand Theft Offense as a Felony or a
       Misdemeanor is Necessary

       Lastly, E.G. claims that remand is necessary in order for the trial court to make an
express declaration about whether his grand theft offense was a felony or a misdemeanor.
       Welfare and Institutions Code section 702 provides, in pertinent 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.” The statute “is unambiguous. It requires an explicit

                                                10
declaration by the juvenile court whether an offense would be a felony or misdemeanor in
the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) The
statute “serves the purpose of ensuring that the juvenile court is aware of, and actually
exercises, its discretion under Welfare and Institutions Code section 702. For this reason,
it cannot be deemed merely ‘directory.’ ” (Id. at p. 1207.) “The key issue is whether the
record as a whole establishes that the juvenile court was aware of its discretion to treat
the offense as a misdemeanor and to state a misdemeanor-length confinement limit.” (Id.
at p. 1209.)
       A juvenile court’s failure to make the necessary declaration “requires remand . . .
for strict compliance with Welfare and Institutions Code section 702.” (Manzy W., supra,
14 Cal.4th at p. 1204.) On remand, the maximum period of physical confinement may
need to be recalculated based on the juvenile court’s express declaration. (See id. at
p. 1211.)
       E.G.’s grand theft offense could have been punishable as either a felony or a
misdemeanor. (See §§ 487 & 489; People v. Douglas (2000) 79 Cal.App.4th 810, 813-
814.) Here, Petition B and the minute orders from the jurisdictional and dispositional
hearings stated that the grand theft offense was a felony. However, nothing on the record
demonstrates that the court was actually aware of its discretion and exercised that
discretion to treat the offense as a felony, rather than a misdemeanor. Therefore, remand
is appropriate to allow the court to make an express declaration as to whether the grand
theft offense is a felony or a misdemeanor. (See Manzy W., supra, 14 Cal.4th at p. 1209.)
In the event that the juvenile court elects to treat the offense as a misdemeanor, it shall
recalculate the maximum time of confinement accordingly.
                                        DISPOSITION
       The dispositional order is reversed and remanded. The no-contact probation
condition shall be modified as follows: “That said minor shall not knowingly have
contact of any type with Daniel K., Mitsuwa Market Place.” The juvenile court shall
                                              11
make an express declaration of whether the grand theft offense is a felony or a
misdeameanor.


                                         ______________________________________
                                                    RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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