Filed 6/27/14 In re D.D. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 D.D., a Person Coming Under the                                H040161
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. 313JV39856A)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

D.D.,

         Defendant and Appellant.


         The minor, D.D., appeals from a dispositional order placing him on probation with
various terms and conditions, following a finding by the juvenile court that the minor
threatened a public employee (Pen. Code, § 71, subd. (a)(1)). On appeal, the minor
contends that remand is required because the juvenile court failed to determine whether
the offense was a felony or misdemeanor pursuant to Welfare and Institutions Code
section 702.1 The minor also argues that two of the probation conditions, which prohibit
him from possessing drug paraphernalia and being adjacent to school campuses, are
unconstitutionally vague and overbroad.


         1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
       For reasons that we will explain, we will reverse the dispositional order and
remand the matter for the juvenile court to declare whether the offense is a felony or
misdemeanor, to clarify the school campus condition, and to modify the drug
paraphernalia condition.
                                     BACKGROUND
       In February 2013, a petition was filed under section 602 alleging that the minor
threatened a public employee (Pen. Code, § 71, subd. (a)(1), a felony).
       A contested jurisdictional hearing was held in August 2013. The sole witness to
testify was the minor’s high school teacher at the time of the incident. The teacher
testified that on December 4, 2012, he told the minor to stop talking to another student in
class. The minor later resumed talking, which was disruptive to the class. The teacher
asked the minor to step outside the classroom so the teacher and the minor could discuss
the situation. The minor refused and stated that he was being treated like a little kid. The
teacher informed the minor that he was going to have someone from the office escort him
out of class. As the teacher walked to a telephone in the classroom, the minor told the
teacher, among other things, that he was going to go to the teacher’s house and stab him.
The teacher felt threatened and believed the minor could carry out the threat. The teacher
had to stop instruction of the class to call the office and to wait for the minor to be
escorted out of the class. Five days prior to the incident, the minor had similarly been
talking during class, had been asked to step outside, and had refused. The teacher called
the office and the minor was removed from the classroom.
       After hearing argument from counsel, the juvenile court found true the allegations
of the petition. The court did not declare at the hearing whether the offense was a
misdemeanor or a felony. Handwritten twice on the court’s form jurisdiction order is
“Ct. 1 PC 71(1) – Felony,” in reference to the count found to be true and the sustained
violation. The court’s form jurisdiction order also states, “The Court finds the following



                                              2
count(s) to be felony allegations,” but the line after the statement has been left blank and
the box next to this statement is not check-marked.
       On September 12, 2013, the juvenile court adopted the probation department’s
recommended disposition. The minor was declared a ward of the court and placed on
probation with various terms and conditions, including “[t]hat said subject not be in
possession of any drug paraphernalia” and “[t]hat said subject not be on or adjacent to
any school campus unless enrolled or with prior administrative approval.” The court did
not declare at the hearing whether the offense was a misdemeanor or a felony. 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” but none of the boxes is marked.
Handwritten next to the boxes is the following: “Ct. 1 PC 71(1) – Felony.”
                                      DISCUSSION
       A. Failure to Declare the Offense Is a Felony or Misdemeanor
       The minor contends that the juvenile court failed to determine whether the threat
offense (Pen. Code, § 71, subd. (a)(1)) was a felony or a misdemeanor pursuant to
section 702, and therefore the matter should be remanded for a determination.
       The Attorney General concedes that the juvenile court “did not make an express
determination whether the count was a felony or misdemeanor” and that the matter
should be remanded.
       The offense of threatening a public employee (Pen. Code, § 71, subd. (a)(1)) is a
“wobbler[],” i.e., a crime “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), 71, subd. (a)(1)). Section 702 provides
that in a juvenile proceeding, “[i]f the minor is found to have committed an offense which

                                              3
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
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




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

                                                4
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
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 offense of
threatening a public employee “would be a felony or misdemeanor in the case of an
adult.” (Manzy W., supra, 14 Cal.4th at p. 1204.) The court did not make an express


       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
declaration regarding whether the offense was a felony or misdemeanor during the
jurisdiction or disposition hearing. Further, to the extent the jurisdiction and disposition
orders, which were on preprinted forms, contemplated a determination of whether the
offense was a felony or misdemeanor by the court, those portions of the orders were left
blank by the court. 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 offense of threatening a public employee is a
felony or misdemeanor.
       B. Probation Conditions
       The minor contends that the probation conditions prohibiting him from possessing
drug paraphernalia and being adjacent to any school campus are unconstitutionally vague
and overbroad. We set forth the applicable legal 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’

                                              6
[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.)
       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. Drug paraphernalia condition
       The drug paraphernalia condition states: “That said subject not be in possession of
any drug paraphernalia.”
       The minor contends that this probation condition is unconstitutionally vague and
overbroad. He argues that the condition does not explicitly require that he know the item
is prohibited, and thus he could possess an item, such as a razor blade, without knowing it
is commonly used as drug paraphernalia. He contends that the “definition” of drug
paraphernalia should be “narrow[ed].” The minor further argues that the probation
condition does not require that he knowingly possess the prohibited item, and thus he
could violate probation by borrowing a vehicle without knowing it contains prohibited

                                              7
paraphernalia in the trunk. The minor proposes that the probation condition be modified
to state that he not “knowingly” be in possession of drug paraphernalia “for the purpose
of using it in such a manner.”
       The Attorney General “do[es] not oppose” modifying the probation condition “to
add a scienter requirement.” However, the Attorney General “disagree[s]” with the
minor’s “proposal to add a phrase to the end of the condition regarding purposeful
intent.”
       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.
       However, we are not persuaded by the minor’s argument that the phrase “drug
paraphernalia” should be modified. We have no reason to believe that the juvenile court
intended the phrase 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
June 27, 2014] [“paraphernalia” includes “miscellaneous items needed for or associated
with a particular activity”]; Oxford English Dict. Online (2014)
<http://www.oed.com/view/Entry/57982?rskey=plYojB&result=1&isAdvanced=false#ei
d> [as of June 27, 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 possession of an item for
a legitimate purpose that is sometimes used by other people as drug paraphernalia, 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

                                             8
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 subject not knowingly be in possession of any item that he knows is drug
paraphernalia.”
                               3. School campus condition
       The school campus condition states: “That said subject 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 with
respect to the term “adjacent.” Citing People v. Barajas (2011) 198 Cal.App.4th 748
(Barajas), the minor requests that the probation condition be modified to include a 50-
foot distance restriction and a knowledge requirement.
       The Attorney General “do[es] not dispute” that the term “adjacent” should be
modified pursuant to Barajas because the term renders the probation condition
impermissibly vague. However, the Attorney General argues that the matter should be
remanded to the juvenile court to determine the appropriate distance restriction because
the juvenile court “is in the better position to address any fact-based aspects of specifying
a stay away order” and because the matter must be remanded anyway for a determination
of whether the offense is a felony or misdemeanor.
       In reply, the minor contends that if this court modifies the condition on appeal, “it
would conserve judicial resources which would otherwise be spent modifying the
condition on remand.”
       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

                                              9
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
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 the Attorney General does not dispute that a knowledge requirement should be
included, we will order the probation condition modified to include such a requirement.

                                              10
Regarding distance, we believe the juvenile court is in the better position to determine
just how far away from school campuses this minor must remain. We will remand the
matter to permit the juvenile court to make that determination and modify the condition
accordingly.
                                      DISPOSITION
       The disposition order of September 12, 2013 is reversed. On remand, the juvenile
court shall exercise its discretion to declare whether the offense for threatening a public
employee (Pen. Code, § 71, subd. (a)(1)) is a felony or misdemeanor.
       The juvenile court is also directed to modify the probation condition concerning
school campuses to include a knowledge requirement and to clarify how far away the
minor must remain from school campuses.
       The probation condition concerning drug paraphernalia shall be modified to read:
“That said subject not knowingly be in possession of any item that he knows is drug
paraphernalia.”




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




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