Filed 5/13/14 In re W.A. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 W.A., a Person Coming Under the                                H039924
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. 313JV39984A, B)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

W.A.,

         Defendant and Appellant.



         The minor, W.A., appeals from the July 15, 2013 dispositional order that followed
his admissions that he received a stolen motor vehicle (Pen. Code, § 496d), resisted an
officer (id., § 148, subd. (a)(1)), and committed vehicle theft (Veh. Code, § 10851,
subd. (a)). The minor was placed on probation with various terms and conditions,
including that he not be adjacent to any school campus, that he not possess any drug
paraphernalia, and that he not contact the victim.
         On appeal, the minor contends that remand is required because the juvenile court
failed to determine whether the offenses for receiving a stolen motor vehicle and vehicle
theft were felonies or misdemeanors pursuant to Welfare and Institutions Code
section 702.1 The minor also argues that the probation conditions concerning school
campuses, drug paraphernalia, and victim contact are unconstitutionally vague and
overbroad.
       For reasons that we will explain, we will reverse the dispositional order and
remand the matter for the juvenile court to declare whether the offenses for receiving a
stolen motor vehicle and vehicle theft are felonies or misdemeanors and for the court to
modify the probation conditions.
                                    BACKGROUND
       In early 2013, the minor was a passenger in a vehicle that had been reported
stolen. After a short pursuit by law enforcement, the vehicle stopped and the driver and
the minor fled the vehicle. The minor was apprehended but the driver was not located.
Approximately two months later, the same vehicle was stolen and later found abandoned.
The minor’s fingerprints were on the rearview mirror of the vehicle. The victim stated
that the minor did not have permission to use the vehicle.
       In April 2013, a petition was filed under section 602 alleging that the minor
received a stolen motor vehicle (Pen. Code, § 496d; count 1, a felony) and resisted an
officer (id., § 148, subd. (a)(1); count 2, a misdemeanor). In May 2013, a second petition
was filed under section 602 alleging that the minor committed vehicle theft (Veh. Code,
§ 10851, subd. (a); count 1, a felony) and received a stolen motor vehicle (Pen. Code,
§ 496d; count 2, a felony).
       At the jurisdiction hearing, the minor admitted the allegations in the April 2013
petition that he had received a stolen motor vehicle (Pen. Code, § 496d; count 1) and
resisted an officer (id., § 148, subd. (a)(1); count 2). Regarding the May 2013 petition,
the minor admitted the allegation that he had committed vehicle theft (Veh. Code,


       1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

                                             2
§ 10851, subd. (a); count 1). The juvenile court dismissed count 2 of the May 2013
petition. The court did not declare at the hearing whether any of the offenses were
misdemeanors or felonies. In the court’s jurisdiction order (on a Judicial Council form),
regarding the “allegations . . . admitted and found to be true,” the court check-marked
boxes indicating that the counts for receiving a stolen motor vehicle and vehicle theft are
felonies, and that the count for resisting an officer is a misdemeanor. Underneath this
listing is the statement, “The court has considered whether the above offense(s) should be
felonies or misdemeanors.”
       At the July 15, 2013 disposition hearing, the juvenile court declared the minor a
ward of the court and placed him on probation, with 60 days on the electronic monitoring
program. The conditions of probation include the following: “5. That said minor not be
on or adjacent to any school campus unless enrolled or with prior administrative
approval,” “8. That said minor not be in possession of any drug paraphernalia,” and
“28. That said minor have no contact of any type with [the victim].” The court did not
declare at the hearing whether any of the offenses were misdemeanors or felonies. The
court’s disposition order (on a Judicial Council form) contains a check-mark next to the
statement, “The court previously sustained the following counts. Any charges which may
be considered a misdemeanor or a felony for which the court has not previously specified
the level of offense are now determined to be as follows[.]” Underneath that statement,
there are boxes labeled “Misdemeanor” and “Felony.” None of the boxes are marked.
However, handwritten next to the boxes is the following: “Ct. 1 PC 496d – Felony [¶]
Ct. 2 PC 148(a)(1) – Misd. Pet. A [¶] . . . [¶] Ct. 1 VC 10851(a) – Felony Pet. B.”
                                      DISCUSSION
       A. Failure to Declare That Offenses Are Felonies or Misdemeanors
       The minor contends that the juvenile court failed to determine whether the
receiving a stolen motor vehicle offense (Pen. Code, § 496d; count 1) in the April 2013
petition, and the vehicle theft offense (Veh. Code, § 10851, subd. (a); count 1) in the

                                             3
May 2013 petition, were felonies or misdemeanors pursuant to section 702, and that
therefore the matter should be remanded for a determination.
       The Attorney General concedes that the juvenile court “did not ‘declare’ ” whether
the two counts were misdemeanors or felonies, that the court “did not orally state that it
recognized it had discretion and exercised that discretion,” and that the matter should be
remanded.
       The offenses of receiving a stolen motor vehicle and vehicle theft are “wobblers,”
i.e., crimes “chargeable or, in the discretion of the court, punishable as either a felony or
a misdemeanor.” (People v. Park (2013) 56 Cal.4th 782, 789; see id. at p. 789, fn. 4;
Pen. Code, §§ 17, subds. (a) & (b), 496d, subd. (a); Veh. Code, § 10851, subd. (a).)
Section 702 provides that in a juvenile proceeding, “[i]f 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.” This language is “unambiguous” and its “requirement is obligatory . . . .” (In re
Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) Section 702 “requires an explicit
declaration by the juvenile court whether an offense would be a felony or misdemeanor in
the case of an adult. [Citations.]” (Manzy W., supra, at p. 1204.)
       The required declaration as to misdemeanor or felony may be made at the
jurisdictional hearing or at the dispositional hearing. (Cal. Rules of Court,
rules 5.780(e)(5), 5.790(a)(1), 5.795(a).)2 “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.”
(Rule 5.780(e)(5), italics added; see also rules 5.790(a)(1), 5.795(a).) The juvenile




       2
           All further rule references are to the California Rules of Court.

                                                4
court’s determination must also be noted in an order or in the minutes from the hearing.
(Rules 5.780(e), 5.795(a).)
       The significance of an express declaration under section 702 was explained by the
California Supreme Court in Manzy W., supra, 14 Cal.4th 1199. Among other things, the
California Supreme Court pointed out that a minor may not be held in physical
confinement longer than an adult convicted of the same offense. (Id. at p. 1205; § 731,
subd. (c).) Requiring the juvenile court to declare whether an offense is a misdemeanor
or felony “facilitat[es] the determination of the limits on any present or future
commitment to physical confinement for a so-called ‘wobbler’ offense.” (Manzy W.,
supra, at p. 1206.) Further, “the requirement that the juvenile court declare whether a so-
called ‘wobbler’ offense [is] 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.” (Manzy W., supra, at p. 1207.)
       In Manzy W., the minor admitted a drug possession offense that was a “wobbler”
as well as a “joyriding” allegation, and the juvenile court dismissed two other allegations.
(Manzy W., supra, 14 Cal.4th at p. 1202.) At disposition, the juvenile court imposed a
felony-level term of physical confinement in the Youth Authority3 but did not expressly
declare the offense a felony. (Id. at p. 1203.) The California Supreme Court held that the
failure to make the mandatory express declaration pursuant to section 702 required
remand of the matter. The court explained that “neither the pleading, the minute order,
nor the setting of a felony-level period of physical confinement may substitute for a
declaration by the juvenile court as to whether an offense is a misdemeanor or felony.
[Citation.]” (Manzy W., supra, at p. 1208.) If the juvenile court fails to make the express
declaration mandated by section 702, the matter must be remanded for compliance with


       3
        The Youth Authority is now known as the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities. (§ 1710, subd. (a); Pen. Code, § 6001.)

                                              5
that section, unless the record shows that the 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.” (Manzy W., supra, at p. 1209; see also id. at p. 1204.)
In the case before it, the court found “[n]othing in the record establish[ing] that the
juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather
than a felony,” and that “it would be mere speculation to conclude that the juvenile court
was actually aware of its discretion in sentencing Manzy.” (Id. at p. 1210.)
       In this case, nothing in the record unambiguously indicates that the juvenile court
was aware of and exercised its discretion to declare whether the minor’s offenses of
receiving a stolen motor vehicle and vehicle theft “would be . . . felon[ies] or
misdemeanor[s] in the case of an adult.” (Manzy W., supra, 14 Cal.4th at p. 1204.) The
court did not make an express declaration regarding whether those offenses were felonies
or misdemeanors during the jurisdiction or disposition hearing. To the extent the orders
from the jurisdiction and disposition hearings suggest that a determination was made that
the offenses were felonies rather than misdemeanors, these portions of the orders also list
the minor’s misdemeanor offense of resisting an officer, which is not a wobbler. (Pen.
Code, § 148, subd. (a)(1).) In an abundance of caution and in accord 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” (Manzy W., supra, at p. 1204), we
will remand the matter to the juvenile court so that it may declare whether the minor’s
offenses of receiving a stolen motor vehicle and vehicle theft are felonies or
misdemeanors.
       B. Probation Conditions
       The minor contends that the probation conditions prohibiting him from being
adjacent to any school campus, in possession of drug paraphernalia, and contacting the
victim are unconstitutionally vague and overbroad. We set forth the applicable legal



                                              6
principles concerning probation conditions before considering the particular probation
conditions that the minor has challenged on appeal.
                    1. Legal principles regarding probation conditions
       “A probation condition that imposes limitations on a person’s constitutional rights
must closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875,
890 (Sheena K.); People v. Leon (2010) 181 Cal.App.4th 943, 948-949 (Leon).) In
addition, “[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.” (Sheena K., supra, at p. 890; Leon, supra, at p. 949.) “[T]he
underpinning of a vagueness challenge is the due process concept of ‘fair warning.’
[Citation.] The rule of fair warning consists of ‘the due process concepts of preventing
arbitrary law enforcement and providing adequate notice to potential offenders’
[citation], protections that are ‘embodied in the due process clauses of the federal and
California Constitutions. [Citations.]’ [Citation.] The vagueness doctrine bars
enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so
vague that men [and women] of common intelligence must necessarily guess at its
meaning and differ as to its application.” [Citation.]’ [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, at p. 890.)

                                              7
       The forfeiture rule does not apply when a probation condition is challenged as
unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal
as a pure question of law without reference to the sentencing record. (Sheena K., supra,
40 Cal.4th at pp. 887-889; see also Leon, supra, 181 Cal.App.4th at p. 949.)
                                2. School campus condition
       Condition No. 5 states: “That said minor not be on or adjacent to any school
campus unless enrolled or with prior administrative approval.”
       The minor contends that this probation condition is unconstitutionally vague and
overbroad. In particular, he argues that the term “adjacent” is “not sufficiently well-
defined” to give him notice of where he “can and cannot go,” and that the probation
condition should be modified to include a “specified distance.” He also argues that the
probation condition must include a knowledge requirement.
       The Attorney General concedes that the minor’s “claims have merit.” The
Attorney General does not object to the minor’s proposed modifications as long as the
distance is specified, such as a “one block radius” as suggested in People v. Barajas
(2011) 198 Cal.App.4th 748 (Barajas).
       In reply, the minor contends that “it is not always clear what constitutes a ‘block’
in some locations,” and that “50 feet” should instead be used as ultimately applied in
Barajas.
       In Barajas, the defendant challenged as impermissibly vague and overbroad a
probation condition similar to the one in the present case. The probation condition in
Barajas stated: “ ‘You’re not to be adjacent to any school campus during school hours
unless you’re enrolled in or with prior permission of the school administrator or
probation officer.’ ” (Barajas, supra, 198 Cal.App.4th at p. 760.) This court agreed that
the probation condition was vague, explaining: “At a sufficient distance, most reasonable
people would agree that items are no longer adjacent, but where to draw the line in the
continuum from adjacent to distant is subject to the interpretation of every individual

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probation officer charged with enforcing this condition. . . . To avoid inviting arbitrary
enforcement and to provide fair warning of what locations should be avoided, we
conclude that the probation condition requires modification.” (Id. at p. 761, fn omitted.)
The Attorney General in Barajas proposed modifying the probation condition to include
the following language: “ ‘Do not knowingly be on or within 50 feet of a school
campus . . . .’ ” (Ibid.) This court agreed that a 50-foot distance restriction would
provide the defendant with “sufficient guidance” (id. at p. 762), and modified the
condition to state: “ ‘You’re not to knowingly be on or within 50 feet of any school
campus during school hours unless you’re enrolled in it or with prior permission of the
school administrator or probation officer’ ” (id. at p. 763). This court also stated the
following: “While accepting the Attorney General’s concession in this case, we
recognize that other modifications may equally solve the problem we perceive, such as a
different measure of distance (e.g., ‘30 feet,’ ‘20 yards’), a different measure of physical
proximity (e.g., ‘on’ or ‘one block away’) or otherwise mapping restricted areas (e.g.,
‘the 1200 block of Main Street’). We do not intend to suggest that a 50-foot distance is a
constitutional threshold.” (Id. at p. 762, fn. 10.)
       In this case, consistent with Barajas, we determine that the probation condition
requires modification to prevent arbitrary enforcement and to provide fair warning to the
minor of locations to be avoided. (Barajas, supra, 198 Cal.App.4th at p. 761.) Further,
because both parties agree that a knowledge requirement should be included and that a
distance should be specified, and because both parties cite Barajas without objection to
the 50-foot distance applied in that case, we will modify the probation condition in this
case similarly to state: “That said minor not knowingly be on or within 50 feet of any
school campus unless enrolled or with prior administrative approval.”
                              3. Drug paraphernalia condition
       Condition No. 8 states: “That said minor not be in possession of any drug
paraphernalia.”

                                               9
       The minor contends that this probation condition is unconstitutionally vague and
overbroad. He refers to the dictionary definition of paraphernalia and argues that there
are many items associated with illegal drug use that are “common household items such
as matches, lighters, blenders, spoons, bowls, balloons, and baggies.” According to the
minor, his possession of such common items “without the intent to use them for drug-
related purposes could violate [his] probation.” The minor further argues that while the
probation condition appears to be “aimed at the illegal use of drugs,” his possession of
“an inhaler, syringe, spoon, or other device for the use of prescribed or over-the-counter
medication” could constitute a violation of his probation. The minor proposes modifying
the probation condition to prohibit him from “knowingly possessing items that can be
used, and that he intends to use, for the ingestion, preparation, or packaging of illegal
drugs.”
       The Attorney General does not “dispute” the minor’s proposal to add “knowing”
possession. However, the Attorney General “disagree[s]” with the minor’s proposal to
add the phrase “he intends to use.” According to the Attorney General, the purpose of the
probation condition is to “prevent possession of illegal drugs” and including the issue of
intent “would, in essence, authorize [the minor’s] knowing possession of illegal drugs
that he does not ‘intend to use.’ ”
       In reply, the minor emphasizes that the probation condition at issue pertains to
drug paraphernalia, whereas another probation condition imposed by the juvenile court
already prohibits his use and possession of illegal drugs. According to the minor, “[t]he
added intent is necessary to distinguish the innocent possession of items which have
innocuous uses so that [he] is given fair notice as to what he can and cannot possess.”
       Based on the minor’s proposed modification and in light of the Attorney General’s
concession concerning “knowing” possession, we will modify the probation condition to
include an express knowledge requirement.



                                             10
       However, we are not persuaded by the minor’s argument that the word
“paraphernalia” should be modified. We have no reason to believe that the juvenile court
intended the phrase “drug paraphernalia” to have anything other than its ordinary, usual,
and commonly understood meaning of any item needed for or associated with drug use
for other than legitimate medicinal purposes. (See Oxford English Dict. Online (2014)
<http://www.oed.com/view/Entry/137567?redirectedFrom=paraphernalia#eid> [as of
May 13, 2014] [“paraphernalia” includes “miscellaneous items needed for or associated
with a particular activity”]; Oxford English Dict. Online (2013)
<http://www.oed.com/view/Entry/57982?rskey=plYojB&result=1&isAdvanced=false#ei
d> [as of May 13, 2014] [“drug” includes a “substance with intoxicating, stimulant, or
narcotic effects used for cultural, recreational, or other non-medicinal purposes”]; In re
R.P. (2009) 176 Cal.App.4th 562, 566 [probation condition “is sufficiently precise if its
terms have a ‘plain commonsense meaning, which is well settled’ ”].)
       Further, regarding the minor’s contention concerning “the innocent possession of
items which have innocuous uses,” the minor’s possession of common items that have a
legitimate purpose where the minor is actually unaware someone intends to use them as
drug paraphernalia would not be a violation of the probation condition. We are not
persuaded by the minor’s contention that the probation condition must be further
narrowed to prohibit his possession of drug paraphernalia that “he intends to use” for
illegal drugs. The probation condition is aimed at the minor’s knowing possession of
drug paraphernalia, regardless of whether he personally intended to use a particular item
as drug paraphernalia.
       Accordingly, we will modify the probation condition to state as follows: “That
said minor not knowingly be in possession of any item that he knows is drug
paraphernalia.”




                                             11
                                  4. No contact condition
       Condition No. 28 states: “That said minor have no contact of any type with [the
victim].”
       The minor contends that this probation condition is unconstitutionally vague and
overbroad because he could “inadvertently violate it by accidently coming into contact
with the victim in everyday social situations, such as the grocery store.” He requests that
the condition be modified to state that he “not knowingly have contact” with the victim.
       The Attorney General states that the contention has “merit” and “do[es] not
dispute the proposed wording.”
       In light of the Attorney General’s concession, we will modify the condition to
state as follows: “That said minor not knowingly have contact of any type with” the
victim.
                                     DISPOSITION
       The disposition order of July 15, 2013 is reversed. On remand, the juvenile court
shall exercise its discretion to declare whether the receiving a stolen motor vehicle
offense (Pen. Code, § 496d; count 1) in the April 2013 petition and the vehicle theft
offense (Veh. Code, § 10851, subd. (a); count 1) in the May 2013 petition are felonies or
misdemeanors. The juvenile court shall also modify the probation conditions as follows.
       Probation condition No. 5 shall be modified to read: “That said minor not
knowingly be on or within 50 feet of any school campus unless enrolled or with prior
administrative approval.”
       Probation condition No. 8 shall be modified to read: “That said minor not
knowingly be in possession of any item that he knows is drug paraphernalia.”
       Probation condition No. 28 shall be modified to read: “That said minor not
knowingly have contact of any type with” the victim.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.




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