Filed 1/17/14 In re Alejandro S. 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                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re Alejandro S., a Person Coming Under                            H039497
the Juvenile Court Law.                                              (Santa Clara County
                                                                      Super. Ct. No. JV38867)

THE PEOPLE,

         Plaintiff and Respondent,

                  v.

Alejandro S.,

        Defendant and Appellant.


         In January 2012, a petition was filed alleging that Alejandro S., a minor (16 years
old at the time of the petition’s filing), came within the provisions of Welfare and
Institutions Code section 602. The petition charged the minor with having committed an
offense that if committed by an adult would have constituted a felony, namely,
possession of a weapon on school grounds (Pen. Code, § 626.10, subd. (a)(1)).1 The
minor admitted the charge alleged, the court sustained the petition, and it adjudged the
minor to be eligible for deferred entry of judgment. After the minor failed to comply
with the terms of the deferred entry of judgment program, the court declared him a ward
of the court and placed him on probation under various terms and conditions.


         1
             All further statutory references are to the Penal Code unless otherwise stated.
        The minor asserts three claims of error on appeal. He contends the court erred by
failing to make an express finding as to whether the offense charged under
section 626.10, subdivision (a)(1) was a felony or a misdemeanor. Secondly, he argues
that a probation condition prohibiting gang activity is vague and overly broad. Third, he
asserts that the court erred in ordering him to reimburse the Public Defender’s Office for
its representation of him in the proceedings.
        We conclude—noting that the Attorney General concedes error—that each of the
minor’s claims has merit. We will accordingly reverse the dispositional order, remand
the case, and instruct the court to (1) make an express finding as to whether the charged
offense was a felony or a misdemeanor; (2) modify the first clause of probation condition
number 17 to provide that the minor shall not knowingly engage in gang activity; and (3)
clarify that the minor shall not be personally responsible for reimbursement of attorney
fees.
                                          FACTS2
        At approximately 3:10 in the afternoon on October 5, 2011, a San José police
officer, who was working as a campus officer, observed the minor enter the Piedmont
Hills High School campus. Because the officer did not recognize the minor as a student
of the school, he contacted the minor and confirmed he was not a Piedmont Hills student.
The officer further observed that the minor was trying to conceal something inside his
jacket, keeping his left arm pinned against his body. He conducted a patsearch of the
minor for officer safety reasons; while doing so, a 25-inch metal rod fell out of the left
side of the interior of the minor’s jacket. During a further search, the officer found a
Swiss Army knife that had a two and one-fourth inch blade that locked into position. The
minor was cited by the officer and then released.

        2
        The facts are taken from a “Deferred Entry of Judgment Suitability Report”
prepared by the Santa Clara County Probation Department.
       During a subsequent interview by a probation officer, the minor admitted to
having carried the metal rod and the folding knife, saying that “he had been carrying
them in case anybody started ‘something.’ ” The minor also admitted that he had
associated with members of the “ ‘VNL’ ” Norteño gang, but denied that he had ever
been “ ‘jumped’ into a gang.” The minor also admitted to the probation officer that he
smoked marijuana twice a week and occasionally consumed alcohol.
                               PROCEDURAL BACKGROUND
       On January 13, 2012, the Santa Clara County District Attorney filed a petition
under Welfare and Institutions Code section 602, subdivision (a) with the juvenile court
below. In the petition, the People alleged that the minor had committed an offense that if
committed by an adult would be a crime, namely, possession of a weapon on school
grounds, a felony (§ 626.10, subd. (a)(1)).
       On April 25, 2012, the minor admitted the allegations of the petition. The court
sustained the petition, and adjudged the minor to be eligible for deferred entry of
judgment.3
       The minor thereafter failed to comply with the terms of his deferred entry of
judgment program and, on February 4, 2013, the court made a finding of such
noncompliance and ordered the minor into custody. On March 13, 2013, the court
ordered that the minor be released on an electronic monitoring program. On March 27,
2013, the minor was declared a ward of the court and placed on probation. A number of
conditions were imposed by the court in connection with the probation order. One such
condition was “[t]hat said minor not participate in any gang activity.”

       3
        The court indicated initially that it would follow the Probation Department’s
recommendation and find the minor unsuitable for the Deferred Entry of Judgment
program. After further discussion at the hearing, the court indicated it would permit the
minor to enter the program under a “zero tolerance” admonition that any violation of the
terms imposed upon him would result in the revocation of his eligibility for the program.
       The minor filed a timely notice of appeal from the probation order.
                                           DISCUSSION
       I.     Determination of Whether Charged Offense Was Felony or Misdemeanor
       The minor was charged with having committed the offense prohibited by section
626.10, subdivision (a)(1). Pursuant to the express language of the statute, the offense, if
committed by an adult, constitutes a crime that is punishable as either a felony or a
misdemeanor.4 As such, the offense is a “wobbler.”5
       The minor argues on appeal that when the court accepted the minor’s admission
and found the allegation in the petition true, it erred by failing to indicate on the record
whether the charged offense was a felony or a misdemeanor. The Attorney General
concedes the error.
       We accept the Attorney General’s concession. Under Welfare and Institutions
Code section 702, the juvenile court is required to make a determination of whether the
wobbler offense charged is a felony or a misdemeanor.6 As explained by our high court:


       4
         “Any person, [subject to exceptions inapplicable in this case] . . . , who brings or
possesses any dirk, dagger, ice pick, knife having a blade longer than 2 1/2 inches,
folding knife with a blade that locks into place, razor with an unguarded blade, taser, or
stun gun, as defined in subdivision (a) of Section 244.5, any instrument that expels a
metallic projectile, such as a BB or a pellet, through the force of air pressure, CO2
pressure, or spring action, or any spot marker gun, upon the grounds of, or within, any
public or private school providing instruction in kindergarten or any of grades 1 to 12,
inclusive, is guilty of a public offense, punishable by imprisonment in a county jail not
exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.”
(§ 626.10, subd. (a)(1).)
       5
         “An alternative felony/misdemeanor, also known as a ‘wobbler’ is deemed a
felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by
the sentencing court under Penal Code section 17, subdivision (b). [Citation.]” (People v.
Statum (2002) 28 Cal.4th 682, 685.)
       6
         “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; see also Cal.
                                                                                 (Cont.)
“The language of the provision is unambiguous. It requires an explicit 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.) As the court explained, “the
purpose of the statute is not solely administrative. . . . [T]he requirement that the juvenile
court declare whether a so-called ‘wobbler’ offense was a misdemeanor or felony also
serves the purpose of ensuring that the juvenile court is aware of, and actually exercises,
its discretion under Welfare and Institutions Code section 702.” (Id. at p. 1207.)
Therefore, the juvenile court’s failure to make an express declaration under the statute
constitutes error which required that the matter be remanded for the court to make such a
determination. (Id. at p. 1204.)
       Here, the petition alleged that the offense under section 626.10, subdivision (a)(1)
was a felony, the minor admitted the allegation, and the dispositional order indicates the
offense as a felony. These facts are insufficient to show compliance with Welfare and
Institutions Code section 702. (See In re Manzy W., supra, 14 Cal.4th at p. 1208
[petition’s allegation that offense is a felony is no “substitute for a declaration by the
juvenile court as to whether an offense is a misdemeanor or felony”]; see also In re
Nancy C. (2005) 133 Cal.App.4th 508, 512 [“a minor’s admission of a wobbler offense
charged as a felony is not an ‘adjudication’ of the misdemeanor or felony status of that
offense”].) And the record contains no express declaration by the court as to whether the
wobbler offense charged was a felony or a misdemeanor. Furthermore, there is nothing
we may glean from the record that indicates the court was aware of its discretion to make
a determination that the charged offense was either a misdemeanor or felony. Thus, this
is not an instance in which remand would be “redundant” because “the


Rules of Court, rule 5.780(e)(5) [if juvenile court finds allegations of petition true, it
“must make findings on . . . [¶] . . .[¶] . . . the degree of the offense and whether it would
be a misdemeanor or a felony had the offense been committed by an adult”].)
record . . . show[s] that the juvenile court, despite its failure to comply with the statute,
was aware of, and exercised its discretion to determine the felony or misdemeanor nature
of a wobbler.” (In re Manzy W., supra, 14 Cal.4th at p. 1209.)
       Accordingly, we will reverse the order with instructions that the juvenile court, in
compliance with Welfare and Institutions Code section 702, declare whether the offense
admitted to by the minor is a felony or a misdemeanor.
       III.      Probation (Gang) Condition
                 A.    Applicable Law
       A juvenile court is empowered to impose upon a ward placed on probation “any
and all reasonable conditions that it may determine fitting and proper to the end that
justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf.
& Inst. Code, § 730, subd. (b).) “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.’ ” ’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena
K.).) This discretion is in fact broader with respect to the imposition of probation
conditions for juveniles than it is for adult offenders. (In re E.O. (2010) 188 Cal.App.4th
1149, 1152; see also Sheena K., at p. 889 [probation condition that may be
unconstitutional for adult offender may be permissible for minor under juvenile court’s
supervision].)
       Both adult offenders and juveniles may challenge a probation condition on the
grounds that it is unconstitutionally vague or overly broad. (See Sheena K., supra, 40
Cal.4th at p. 887.) As we have explained: “Although the two objections are often
mentioned in the same breath, they are conceptually quite distinct. A restriction is
unconstitutionally vague if it is not ‘ “sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated.” ’ [Citation.] A restriction failing this test does not give adequate notice—“fair
warning”—of the conduct proscribed. [Citations.] A restriction is unconstitutionally
overbroad, on the other hand, if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not
‘tailored carefully and reasonably related to the compelling state interest in reformation
and rehabilitation.’ [Citations.] The essential question in an overbreadth challenge is the
closeness of the fit between the legitimate purpose of the restriction and the burden it
imposes on the defendant’s constitutional rights—bearing in mind, of course, that
perfection in such matters is impossible, and that practical necessity will justify some
infringement.” (In re E.O., supra, 188 Cal.App.4th at p. 1153; see also In re Victor L.
(2010) 182 Cal.App.4th 902, 910.)
       Any objection to the reasonableness of a probation condition is forfeited if not
raised at the time of imposition. (See In re Justin S. (2001) 93 Cal.App.4th 811, 814; see
also Sheena K., supra, 40 Cal.4th at p. 883, fn. 4; People v. Welch (1993) 5 Cal.4th 228,
237.) Constitutional challenges to probation conditions on their face, however, may be
raised on appeal without objection in the court below. (Sheena K., at pp. 887-889.)
               B.     Gang Condition
       The minor challenges a probation condition imposed by the court prohibiting gang
activity. That condition, number 17, reads: “That said minor not participate in any gang
activity and not visit or remain in any specific location known to him to be, or that the
Probation Officer informs him to be, an area of gang-related activity.” The minor
challenges the first clause of this condition, claiming that it is unconstitutional in that it
“does not meet the notice required by the due process clauses of the California and
federal constitutions.” He asserts that “the probation condition must be modified to
include a knowledge requirement so that in order to be found out of compliance with the
term of probation, [the minor] knows that the activity he is engaged in is ‘gang
activity.’ ”
       The minor did not raise this challenge below. But because his claim is that the
probation condition is unconstitutional, it is cognizable on appeal. (Sheena K., supra, 40
Cal.4th at pp. 887-889.)
       The Attorney General concedes the probation condition is overly broad and that it
“should be modified to include a knowledge requirement.” We accept this concession.
       “A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him [or her], and for the court to determine whether the condition has
been violated,’ if it is to withstand a [constitutional] challenge on the ground of
vagueness. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) As we have observed,
“[I]n a variety of contexts . . ., 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.) Thus, probation conditions that fail to include
language requiring the probationer’s knowing violation of the condition have been
invalidated in the context of prohibitions on association with felons, ex-felons, or
narcotics dealers or users (People v. Garcia (1993) 19 Cal.App.4th 97, 102); association
with gang members (People v. Lopez (1998) 66 Cal.App.4th 615, 628); association with
probationers, parolees, or gang members (In re H.C. (2009) 175 Cal.App.4th 1067,
1071); association with persons under 18 (People v. Turner (2007) 155
Cal.App.4th 1432, 1437); frequenting areas of gang-related activity (People v. Leon
(2010) 181 Cal.App.4th 943, 952); presence near school grounds during school hours
(People v. Barajas (2011) 198 Cal.App.4th 748, 760-763 [condition prohibiting presence
adjacent to school grounds during school hours modified to prohibit being knowingly
present within 50 feet of school during school hours]); possessing stolen property, or
possessing firearms or ammunition (People v. Freitas (2009) 179 Cal.App.4th 747, 751-
752); and possessing, wearing or displaying gang-affiliated material (In re Vincent G.
(2008) 162 Cal.App.4th 238, 245, 247-248).
       Here, the probation condition prohibiting defendant from “not participat[ing] in
any gang activity” is vague and overly broad because it does not include a scienter
element. (See, e.g., People v. Leon, supra, 181 Cal.App.4th at p. 950 [probation
condition prohibiting association with gang members ordered modified to prohibit
“ ‘association with any person whom you know, or whom the probation officer informs
you, is a gang member’ ”]; People v. Lopez, supra, 66 Cal.App.4th at pp. 622, 628-629
[probation condition prohibiting defendant from becoming involved in “gang activities,”
associating with “gang members” and wearing, possessing or displaying “gang insignia”
was both overbroad and void for vagueness].) We will therefore order the probation
condition modified to include a specific knowledge requirement. (Sheena K., supra, 40
Cal.4th at p. 892 [“modification to impose an explicit knowledge requirement is
necessary to render [a probation] condition constitutional”].) The first clause of the
challenged probation condition shall be modified to read (with the modifications
italicized): “That said minor not knowingly participate in any gang activity . . .”
       III.   Probation (Attorney Fees Reimbursement) Condition
       As a condition of probation, the court ordered that the Public Defender’s Office be
reimbursed the sum of $300. This was based upon the representation of minor’s counsel
that there had been eight court appearances of substance made on the minor’s behalf.
There is no indication in either the reporter’s transcript or the court order as to whether
the minor was ordered personally responsible for these attorney fees. But it is stated in
the order generally: “The minor and his parents are jointly and severally responsible for
the payment of fines, penalty assessments, and/or restitution, as ordered by the Court.”
       The minor challenges the probation order to the extent it may be construed as
making him personally responsible for the attorney fees. He argues that “(1) the court
lacks authority to charge attorney fees to Alejandro; (2) there was insufficient evidence of
Alejandro’s ability to pay the fees; and (3) assessing the fees on a minor as a condition of
probation would violate the equal protection clause of the state and federal constitutions.”
The Attorney General concedes that the probation order, to the extent it purports to
impose personal liability upon the minor for reimbursement of attorney fees, is
unauthorized by law. She agrees that “[t]he juvenile court should clarify that [the minor]
is not personally liable for the attorney[] fee[s], and should modify the dispositional order
as authorized by [Welfare & Institutions Code] section 903.1.” We accept this
concession.
       Under Welfare and Institutions Code section 903.1, subdivision (a), “[t]he father,
mother, spouse, or other person liable for the support of a minor, the estate of that person,
and the estate of the minor, shall be liable for the cost to the county or the court,
whichever entity incurred the expenses, of legal services rendered to the minor by an
attorney pursuant to an order of the juvenile court.” The statute makes no provision for
imposing personal liability on the minor for the attorney fees incurred in representing him
or her in the juvenile proceeding. And our high court has explained that Welfare and
Institutions Code section 903.1 “is merely declarative of the parents’ preexisting
obligation to provide reasonable and necessary support to their minor children, and to
reimburse third persons providing that support upon the parents’ failure to do so.
[Citation.]” (In re Ricky H. (1970) 2 Cal.3d 513, 521.) Moreover, the imposition of
attorney fees as a condition of probation is prohibited in both adult criminal cases and in
juvenile delinquency proceedings. (People v. Faatiliga (1992) 10 Cal.App.4th 1276,
1280, disapproved on other grounds in People v. Flores (2003) 30 Cal.4th 1059, 1068; In
re Elizabeth S. (1982) 138 Cal.App.3d 450, 454.)
       Based upon the foregoing, we conclude that to the extent the probation order may
be construed as imposing personal liability on the minor for reimbursement of attorney
fees, it is unauthorized under the law. Accordingly, we will upon remand direct the court
to modify its order to clarify that the minor is not personally responsible for
reimbursement of attorney fees incurred in the proceedings.7
                                      DISPOSITION
       The dispositional order is reversed, and the matter is remanded with instructions
that the court (1) in compliance with Welfare and Institutions Code section 702, declare
whether the offense admitted to by the minor is a felony or a misdemeanor; (2) in the new
order, revise the gang condition as provided in condition 17 so the first clause will read
“That said minor not knowingly participate in any gang activity . . .”; and (3) clarify in
the new order that the minor is not personally responsible for reimbursement of his
attorney fees.




       7
         The minor did not raise this challenge below. But because imposition of
personal liability for attorney fees was unauthorized under the law, it is cognizable on
appeal. (People v. Scott (1994) 9 Cal.4th 331, 354 [appellate court may take action on its
own motion to correct (an unauthorized sentence), even where the parties have failed to
raise the issue]; see also People v. Anderson (2010) 50 Cal.4th 19, 26 [challenge to
probation condition based upon assertion that restitution was not authorized by law was
cognizable, even though not raised before trial court].)
                                   Márquez, J.




WE CONCUR:




 Bamattre-Manoukian, Acting P.J.




 Grover, J.
