Filed 12/5/14 In re S.J. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 S.J., a Person Coming Under the                                H040997
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. JV40437A)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

S.J.,

         Defendant and Appellant.


         A juvenile wardship petition, filed on December 24, 2013, alleged that S.J.
committed two felonies on or about December 20, 2013: (1) second degree robbery (Pen.
Code, §§ 211-212.5(c)) and (2) unlawful possession of a concealable firearm (id.,
§ 29610). (Welf. & Inst. Code, § 602.)1 The juvenile court found the allegations true and
declared S.J. to be a ward of the court. The court ordered S.J. committed to the Santa
Clara County Juvenile Rehabilitation Facilities-Enhanced Ranch Program for six to eight
months and it imposed certain terms and conditions.
         On appeal, S.J. asserts that the matter must be remanded to the juvenile court to
allow the court to declare whether the violation of Penal Code section 29610 was a


1
      All further statutory references are to Welfare and Institutions Code unless
otherwise specified.
misdemeanor or felony in accordance with section 702. He also raises facial
constitutional challenges with respect to two probation conditions.
       We will reverse and remand with directions.
                                         Discussion
A. Declaration of Offense to be a Misdemeanor or Felony
1. Background
       In this case, the delinquency petition alleged two statutory violations as felonies:
second degree robbery (Pen. Code, §§ 211-212.5(c)) (count one) and possession of a
concealable firearm (id., § 29610) (count two). Robbery of the second degree is a
straight felony (see id., §§ 213, subd. (a)(2), 17, subd. (a)) while a violation of Penal
Code section 29610 is a so-called “wobbler,” punishable as a felony or a misdemeanor
(see id., §§ 29700, subd. (a)(3), 17, subds. (a) & (b)). The court found the allegations of
the petition true beyond a reasonable doubt. The probation report prepared for the
disposition hearing described each “sustained allegation” as a felony.
       In its disposition orders, the juvenile court used a Judicial Council form, entitled
“DISPOSITION—JUVENILE DELIQUENCY” (JV-665 [Rev. Jan. 1, 2012]). The form,
dated April 23, 2014 and signed by the judge, contains the following preprinted language:
“The court previously sustained the following counts. Any charges which may be
consider a misdemeanor or a felony for which the court has not previously specified the
level of the offense are now determined to be as follows: . . . .” The box next to this
language is checked on the form.
       Both of S.J.’s crimes are listed on the form below that preprinted language. On
the disposition form, next to each listed offense, the box for “felony” is checked and the
box for “misdemeanor” is not checked.
2. Analysis
       The parties agree that the juvenile court failed to comply with section 702’s
requirement that the court declare S.J.’s violation of Penal Code section 29610, the
                                              2
“wobbler,” to be a misdemeanor or felony. S.J. asserts that the error necessitates a
remand and the People argue the error is harmless.
       In making a harmless error argument, the People point to the court’s description of
the case as “serious,” the severity of the circumstances surrounding S.J.’s possession of
the firearm, and the court’s written disposition, which identifies the violation of Penal
Code section 29610 as a felony. The record shows that S.J. entered a market armed with
a firearm; S.J. ordered the owner to open the register and robbed him at gun point. A
nine-millimeter semiautomatic handgun was subsequently found in S.J.’s bedroom
underneath a mattress.
       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.” In In re
Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.), the California Supreme Court concluded
that “[t]he language of the provision is unambiguous” and “requires an explicit
declaration by the juvenile court whether an offense would be a felony or misdemeanor in
the case of an adult. (Webster’s New Internat. Dict. (3d ed.1961) at p. 586 [defining
‘declare’ as ‘to make known publicly, formally, or explicitly’ ‘to state emphatically’].)”
(Id. at p. 1204.) Under the California Rules of Court, a juvenile court may comply with
section 702 at the time it accepts a child’s admission of, or “plea of no contest” to, an
alleged wobbler (Cal. Rules of Court, rule 5.778(f)(9)),2 at the jurisdiction hearing
(Rule 5.780(e)(5)),3 or at the disposition hearing (Rules 5.790(a)(1), 5.795(a)).4

2
       All further references to rules are to the California Rules of Court.
Rule 5.778(f)(9) states: “On an admission or plea of no contest, the court must make the
following findings noted in the minutes of the court: . . . [¶] . . . In a section 602 matter,
the degree of the offense and whether it would be a misdemeanor or felony had the
offense been committed by an adult. If any offense may be found to be either a felony or
misdemeanor, the court must consider which description applies and expressly declare on
the record that it has made such consideration and must state its determination as to
(continued)
                                              3
       In Manzy W., supra, 14 Cal.4th 1199, the Supreme Court explained that “the
requirement that the juvenile court declare whether a so-called ‘wobbler’ offense was a
misdemeanor or felony . . . 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.) Section 702 also “serves the collateral administrative
purpose of providing a record from which the maximum term of physical confinement for
an offense can be determined, particularly in the event of future adjudications.”
(Manzy W., supra, at p. 1205; see id. at pp. 1206-1207.) “In the case of a so-called
‘wobbler,’ the length of the term specified would, inevitably, depend on whether the
offense was deemed a felony or a misdemeanor.” (Id. at p. 1205, fn. 3.)

whether the offense is a misdemeanor or a felony. These determinations may be deferred
until the disposition hearing.”
3
        Rule 5.780(e)(5) states in pertinent part with regard to a jurisdiction hearing: “If
the court determines . . . by proof beyond a reasonable doubt in a section 602 matter, that
the allegations of the petition are true, the court must make findings on each of the
following, noted in the order: . . . [¶] . . . In a section 602 matter, the degree of the
offense and whether it would be a misdemeanor or a felony had the offense been
committed by an adult. If any offense may be found to be either a felony or a
misdemeanor, the court must consider which description applies and expressly declare on
the record that it has made such consideration, and must state its determination as to
whether the offense is a misdemeanor or a felony. These determinations may be deferred
until the disposition hearing.”
4
        Rule 5.790(a)(1) states: “At the disposition hearing: [¶] . . . If the court has not
previously considered whether any offense is a misdemeanor or felony, the court must do
so at this time and state its finding on the record. If the offense may be found to be either
a felony or a misdemeanor, the court must consider which description applies and must
expressly declare on the record that it has made such consideration and must state its
finding as to whether the offense is a misdemeanor or a felony.” Rule 5.795(a) provides
with respect to required determinations at disposition in a section 602 case: “Unless
determined previously, the court must find and note in the minutes the degree of the
offense committed by the youth, and whether it would be a felony or a misdemeanor had
it been committed by an adult. If any offense may be found to be either a felony or a
misdemeanor, the court must consider which description applies and expressly declare on
the record that it has made such consideration and must state its determination as to
whether the offense is a misdemeanor or a felony.”

                                              4
       Under Manzy W., it is unassailable that the characterization of wobbler as felony
offense in a section 602 petition, which is prepared by the petitioner, or a mere reference
to a wobbler as a felony in the minutes, which are prepared by the clerk (see Gov. Code,
§ 69844), does not demonstrate that the court was aware of, and actually exercised, its
discretion to specify the status of a wobbler as either a felony or a misdemeanor.5 (See
Manzy W., supra, 14 Cal.4th at pp. 1207-1208; see also In re Kenneth H. (1983) 33
Cal.3d 616, 619-620; In re Ricky H. (1981) 30 Cal.3d 176, 191.) In addition, the juvenile
court’s treatment of a wobbler as a felony in the calculation of the maximum period of
confinement (see § 726, subd. (d)) does not establish that the court was aware of its
discretion to treat the offense as a misdemeanor, it rejected that choice, and it expressly
declared the offense to be a felony. (See Manzy W., supra, at pp. 1207-1208; see also In
re Kenneth H., supra, at pp. 619-620.)
       In Manzy W., the Supreme Court refused to apply the presumption that official
duty has been regularly performed where the court had not, as required by statute,
explicitly declared the wobbler (possession of a controlled substance) to be a felony.
(Manzy W., supra, 14 Cal.4th at pp. 1202, 1209; see Evid. Code, § 664.) The court was
“unpersuaded that such a presumption is appropriately applied when the juvenile court
violated its clearly stated duty under Welfare and Institutions Code section 702 and there
is nothing in the record to indicate that it ever considered whether the possession offense
was a misdemeanor or a felony.” (Manzy W., supra, at p. 1209.) The court concluded
that a juvenile court’s “failure to make the mandatory express declaration” demanded by
section 702 “requires remand . . . for strict compliance with” the section. (Manzy W.,
supra, at p. 1204.)

5
       “Conflicts between the reporter’s and clerk’s transcripts are generally presumed to
be clerical in nature and are resolved in favor of the reporter’s transcript unless the
particular circumstances dictate otherwise. [Citations.]” (In re Merrick V. (2004) 122
Cal.App.4th 235, 249; see People v. Lawrence (2009) 46 Cal.4th 186, 194, fn. 4.)

                                              5
       As to harmless error analysis, the Supreme Court explained in Manzy W. that
where a juvenile court fails to comply with section 702, the “key issue” on review 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.” (Manzy W., supra, 14 Cal.4th at p. 1209.) “[T]he record in a given
case may show 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 such case, when remand would be merely redundant, failure to comply with
the statute would amount to harmless error.” (Ibid.) But the “setting of a felony-length
maximum term period of confinement, by itself, does not eliminate the need for remand
when the statute has been violated.” (Ibid.)
       Even assuming that section 702 demands that a juvenile court make an express
oral declaration rather than a clear written declaration, a remand would be unnecessary
under Manzy W.’s harmless error standard if the juvenile court had signed an
unambiguous, written order expressly declaring the status of the wobbler pursuant to
section 702. We assume that the preprinted language in the Judicial Council form
JV-665 was an attempt to avoid remands under Manzy W. Manzy W. indicated, however,
that nothing should be left to surmise. (See In re Manzy W., supra, 14 Cal.4th at
pp. 1207-1208.) The problem with the Judicial Council’s form JV-665, as we see it, is
that it does not explicitly identify any wobblers among the listed, previously-sustained
statutory violations and reflect that the court was aware of and exercised its discretion
under section 702 as to each wobbler.6
6
       We take judicial notice of the existence and contents of the Judicial Council’s
form order entitled JURISDICTION HEARING—JUVENILE DELIQUENCY (JV-644
[Rev. Jan. 1, 2012]). (See Evid. Code, §§ 452, subd. (c), 459.) The form provides space
for a court to list allegations that have been admitted and found true after the child’s
admission or no contest plea. By checking the appropriate box, the court may declare
each listed statutory violation to be a misdemeanor or a felony or it may indicate the
(continued)
                                               6
       Despite the gravity of the circumstances of S.J.’s violation of Penal Code 29610,
the juvenile court still retained discretion under section 702 to declare it a misdemeanor.
Nothing in the appellate record confirms the juvenile court was actually aware of its
discretion to treat that violation, but not the second degree robbery, as a misdemeanor,
and the court did in fact exercise that discretion. Therefore, in an abundance of caution,
we remand to the juvenile court so that it may comply with Manzy W.’s requirement of an
“explicit declaration by the juvenile court whether [the] offense would be a felony or
misdemeanor in the case of an adult. [Citations.]” (Manzy W., supra, 14 Cal.4th at
p. 1204.)
B. Probation Conditions
       As stated, the juvenile court ordered S.J. committed to the Santa Clara County
Juvenile Rehabilitation Facilities-Enhanced Ranch Program for six to eight months. The
court ordered minor to “obey all rules and regulation of said facilities.” The court also
ordered minor to “attend school regularly with no unexcused absences or tardies, and
obey all rules and regulations of school officials.”
       On appeal, S.J. argues that both conditions are unconstitutional vague and
overbroad because they lack an express knowledge requirement. Citing In re Sheena K.

status of the statutory violation will be specified at disposition. It contains additional
preprinted language with respect to those allegations: “The court has considered whether
the above offense(s) should be felonies or misdemeanors.” A juvenile court adopts this
language by checking the adjacent box.
        The Judicial Council may wish to consider revising Judicial Council form JV-665
to provide for the identification or separately listing of each statutory violation that
“would in the case of an adult be punishable alternatively as a felony or a misdemeanor”
(§ 702) and to clearly reflect that the court is exercising its discretion pursuant to
section 702 and explicitly declaring the status of each such offense. The rebuttable
presumption that official duty is regularly performed (see Evid. Code, §§ 660, 664)
would answer any concern that a clerk filled out the form and the judge signed it
unthinkingly without exercising discretion. (See People v. Visciotti (1992) 2 Cal.4th 1,
49 [“In the absence of any indication to the contrary we presume, as we must, that a
judicial duty is regularly performed. [Citations.]”].)

                                              7
(2007) 40 Cal.4th 875 (Sheena K.) and People v. Garcia (1993) 19 Cal.App.4th 97, S.J.
argues that the lack of an express knowledge requirement renders the conditions vague
since “it is not clear if scienter is required and, therefore, what conduct would cause
[him] to be found to be in violation” of those conditions. He asserts that “no purpose—
rehabilitative or otherwise—is served” if he could unknowingly violate those conditions.
He also suggests that the possibility of an unknowing violation of those probation
conditions renders them unconstitutionally overbroad.
       The people contend that an express scienter element is unnecessary because “the
ranch and school rules are equally applicable, either to all wards at the ranch, or all
students at school” and “[a]ll ranch committees or school students are already
constructively tasked with being familiar with institutional rules, and therefore are
forewarned as to what is prohibited.” This argument fails to address whether the
language of the probation condition provides adequate notice, consistent with due
process, of what S.J. must do to avoid a probation violation.
       A determination whether a juvenile probationer has violated institutional rules
from the administrative prospective of a ranch program or school is completely separate
from the judicial determination whether the probationer has violated probation. Those
institutions presumably will decide whether there has been a rule-violation and the
appropriate consequences for any misbehavior based on their internal policies and
practices. We have no evidence before us as to whether a particular institution requires a
minor to have actual knowledge of its institutional rules or imputes constructive
knowledge of its institutional rules to a minor when making such decisions.
       Sheena K. made clear that “[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.]” (Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he underpinning of
a vagueness challenge is the due process concept of ‘fair warning.’ (People v. Castenada
                                              8
(2000) 23 Cal.4th 743, 751.) The rule of fair warning consists of ‘the due process
concepts of preventing arbitrary law enforcement and providing adequate notice to
potential offenders’ (ibid.), protections that are ‘embodied in the due process clauses of
the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art.
I, § 7).’ (Ibid.)” (Ibid.)
       “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.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
       The probation condition at issue in Sheena K. prohibited Sheena from associating
“ ‘with anyone disapproved of by probation.’ ” (Sheena K., supra, 40 Cal.4th at p. 880.)
That “condition did not notify defendant in advance with whom she might not associate
through any reference to persons whom defendant knew to be disapproved of by her
probation officer.” (Id. at pp. 891-892.) The Supreme Court agreed that “modification to
impose an explicit knowledge requirement is necessary to render the condition
constitutional. [Citations.]” (Id. at p. 892.)
       Sheena K. indicates that a vagueness problem may arise whenever a probation
condition imposes requirements or restrictions on a probationer’s conduct with respect to
a general category whose particulars may not be evident or known to a probationer. The
challenged probation conditions suffer from this type of deficiency. They name general
                                                 9
categories of rules but do not specify the rules. Absent knowledge of a particular rule,
the probationer may not be on notice that he is violating probation in a specific instance.
       This is not a case where a probation condition forbidding specific conduct is
coextensive with a criminal law and, therefore, it may be concluded that the probation
condition implicitly incorporates the crime’s knowledge element. (See People v. Kim
(2011) 193 Cal.App.4th 836, 847.) To prevent arbitrary enforcement and provide clear
notice of what conduct will constitute a violation, we will direct the court on remand to
modify the probations conditions to add express knowledge requirements. Our
conclusion makes it unnecessary to address S.J.’s overbreadth argument.
                                      DISPOSITION
       The April 23, 2014 order is reversed and the matter is remanded for limited
purposes. Upon remand, the juvenile court shall (1) exercise its discretion under Welfare
and Institutions Code section 702 and expressly declare on the record whether S.J.’s
violation of Penal Code section 29610 is a felony or a misdemeanor, (2) recalculate the
maximum period of confinement if necessary (Welf. & Inst. Code, § 726, subd. (d)), and
(3) add express knowledge requirements to the challenged probation conditions so that
they read: “Minor shall obey all known rules and regulations of said facilities” and
“Minor shall attend school regularly with no unexcused absences or tardies, and obey all
known rules and regulations of school officials.”




                                             10
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.
