Filed 3/6/13 In re Jonathan A. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
                                       THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



In re JONATHAN A., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,

                   Plaintiff and Respondent,                                                C067783

         v.                                                                    (Super. Ct. No. JV132275)

JONATHAN A.,

                   Defendant and Appellant.

         The juvenile court sustained a petition alleging the minor, Jonathan A., committed
three felonies: (1) battery on a peace officer, including personal infliction of great bodily
injury (Pen. Code, §§ 243, subd. (c)(2), 12022.7)1 (2) resisting an officer (§ 69, as
amended by Stats. 2011, ch. 15, § 235 [amending sentencing provisions]); and (3) battery
causing serious bodily injury (§ 243, subd. (d)). (Welf. & Inst. Code, § 602.) The




1    Undesignated statutory references are to the Penal Code.

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juvenile court adjudicated the minor a ward of the court and placed him on probation
with conditions.
       On appeal, the minor contends: (1) the court’s finding on the charge of resisting
an officer must be reversed because it is a lesser included offense of battery on a peace
officer; (2) the maximum term of confinement should be stricken; and (3) the probation
condition restricting the minor’s ability to travel is unconstitutional and should be
stricken. We reject the minor’s first and third contentions. In examining the statutory
elements, felony battery on a peace officer is not a necessarily included offense to the
offense of resisting an officer. By not objecting to the probation condition in juvenile
court, the minor has forfeited any challenge to the reasonableness of the probation
condition restricting his travel. Further, under the circumstances, the probation condition
restricting the minor’s travel within a 10-mile radius of his home without permission is
not an unreasonable restriction of his rights. As to the second contention, we agree the
maximum term of confinement should be stricken. The juvenile court had no statutory
authority to impose a term of imprisonment because the minor was released to the
custody of his legal guardian subject to court probation. Accordingly, we strike the
maximum term of confinement. In all other respects, the juvenile court’s orders are
affirmed.
                                     BACKGROUND
       On January 17, 2011, a woman called a pizza restaurant and ordered a pizza
delivered. When the pizza delivery person arrived at the designated address, he was
robbed of the pizza. The victim described several individuals participating in the
robbery, including two “male [B]lack juveniles.” The police traced the phone number
used to order the pizza to Cynthia Lee, who lived a few houses down from where the
pizza was to be delivered.




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       Law enforcement officers, including Officer Karl Chan, went to Cynthia’s home
and were invited in by John Anderson. Inside, Officer Chan saw approximately eight
people in the home.
       Initially, “[i]t was a very calm scene and everybody was very cooperative.”
Officer Chan asked to speak to the three male juveniles or young adults in the home,
including the minor (who was 14 years old at the time). Officer Chan spoke with the
minor in the garage, which had been converted into a bedroom. He told the minor there
had been a robbery across the street and asked if the minor knew anything about it. The
minor was cooperative, but offered no information. Officer Chan left the house and
returned to the scene of the robbery.
       After Officer Chan left Cynthia’s home, Officer Matt Hoffman entered the home.
Officer Hoffman learned there was an individual in the home who was on probation so he
conducted a probation search of the home. During the search, Officer Hoffman found
slices of pizza inside the closet in the converted garage. The officers then gathered six to
seven suspects in the living room, intending to place each one in a separate patrol car.
       When Officer Hoffman returned to the living room, the minor was sitting on the
couch with his grandmother. As soon as Officer Hoffman started detaining the suspects,
the minor became “very outspoken, yelling F this, F that, you need a warrant,” and was
“being very uncooperative.” As Hoffman attempted to handcuff the minor, the minor
said, “fuck that” and kicked his left leg back into Officer Hoffman’s knee. Officer
Hoffman’s knee collapsed and he fell to the ground. His ACL tendon was fully torn.
       The minor was taken into custody and a wardship petition filed. The amended
petition alleged the minor committed battery on a peace officer (§ 243, subd. (c)(2)), and
inflicted great bodily injury on the same officer (§ 12022.7). The petition also alleged the
minor resisted a peace officer (§ 69) and committed the crime of battery causing serious
bodily injury (§ 243, subd. (d)).



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       At the contested jurisdiction hearing, the minor’s family members testified the
minor did not kick Officer Hoffman, that Officer Hoffman’s injury was the result of an
accident. The juvenile court was not persuaded and found true the allegations in the
amended petition. The juvenile court also determined the offenses committed by the
minor were felonies.
       The following day, at the dispositional hearing, the minor was declared a ward of
the court. The minor was granted probation with numerous conditions, including the
“general condition” that the minor “[n]ot go beyond 10 miles from home until age 18
except (1) for purposes of employment that has been approved by the Probation Officer
in advance or (2) if accompanied by a responsible adult who is approved by the parent,
group home official, probation or school official . . . .”
       The minor appeals.
                                        DISCUSSION
                                               I
                                  Lesser Included Offense
       The minor contends the charge of resisting a peace officer is a lesser included
offense of battery on a peace officer. Accordingly, he argues the juvenile court’s finding
on the charge of resisting an officer should be reversed. We disagree.
       Although, generally, a defendant “may be convicted of any number of the offenses
charged” (§ 954), he or she may not suffer multiple convictions based on lesser-included
offenses. (People v. Medina (2007) 41 Cal.4th 685, 690, fn. 2, 701; People v. Reed
(2006) 38 Cal.4th 1224, 1226.) “In deciding whether multiple conviction is squarely
proper, a court should consider only the statutory elements. Or, as formulated in [People
v.] Scheidt [(1991) 231 Cal.App.3d 162, 165-166], ‘only a statutorily lesser included
offense is subject to the bar against multiple convictions in the same proceeding. An
offense that may be a lesser included offense because of the specific nature of the



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accusatory pleading is not subject to the same bar.’ [Citation.]” (People v. Reed, supra,
38 Cal.4th at p. 1229.)
       Here, the juvenile court found true the allegation that the minor resisted a peace
officer, which is defined by former section 69 as follows: “Every person who attempts,
by means of any threat or violence, to deter or prevent an executive officer from
performing any duty imposed upon such officer by law, or who knowingly resists, by the
use of force or violence, such officer, in the performance of his [or her] duty, is
punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in
the state prison, or in a county jail not exceeding one year, or by both such fine and
imprisonment.” (Former § 69, as amended by Stats. 2011, ch. 15, § 235 [amending
sentencing provisions].)
       Section 69 “sets forth two separate ways in which an offense can be committed.
The first is attempting by threats or violence to deter or prevent an officer from
performing a duty imposed by law; the second is resisting by force or violence an officer
in the performance of his or her duty.” (In re Manuel G. (1997) 16 Cal.4th 805, 814.)
The amended petition alleged both deterrence and resistance by force, the prosecutor
argued the minor violated both provisions of section 69, and the juvenile court found the
allegations “contained within the [amended] Petition have been proven.”
       The minor also was found to have committed a battery upon a peace officer during
the performance of that officer’s duties, in violation of section 243, subdivision (c)(2). A
battery is defined as “any willful and unlawful use of force or violence upon the person of
another.” (§ 242.)
       In examining the statutory elements, felony battery upon a peace officer is not a
necessarily included offense to the section 69 offense of resisting an officer. The first
prong of section 69 can be committed by a mere threat -- without the use of force or
violence. Thus, battery of a peace officer is not a necessarily included offense to the first
prong of section 69. Nor is battery upon a peace officer a necessarily included offense to

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section 69’s second prong. For example, one can resist an officer with force (§ 69)
without using “force or violence upon the person of another” (§ 242) by forcibly holding
onto something to prevent arrest or forcibly creating a physical obstruction to prevent
pursuit or arrest.
       We conclude there was no error.
                                             II
                            Maximum Term of Confinement
       The minor contends the juvenile court erred when it included a maximum term of
confinement in its dispositional order. The Attorney General agrees, as do we.
       The minor was released to the custody of his legal guardian subject to court
probation. Therefore, the juvenile court had no statutory authority to specify a term of
imprisonment. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541; In re Ali A. (2006)
139 Cal.App.4th 569, 573.) The Attorney General suggests this court refuse to strike the
unlawful sentence, but offers no persuasive reason for so refusing. Accordingly, we
strike that portion of the order specifying a maximum term of confinement. (In re
Matthew A., supra, 165 Cal.App.4th at p. 541.)
                                            III
                                   Probation Condition
       The minor further contends the probation condition prohibiting him from traveling
more than 10 miles from his home without permission from the probation department or
the accompaniment of an approved adult impinges on his constitutional right to travel.
The minor has forfeited this claim by failing to object to the probation condition in the
juvenile court.
       The minor contends this claim is not forfeited, relying on In re Sheena K. (2007)
40 Cal.4th 875, 886-887, claiming the case presents a pure question of law. We disagree
with the minor’s characterization of the claim. In finding a probation condition that the
minor “not associate with anyone disapproved of by probation” was overbroad, the

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California Supreme Court in Sheena K. found the minor could object for the first time on
appeal because the objection was based on a constitutional challenge that presented a
pure question of law. (In re Sheena K., supra, 40 Cal.4th at pp. 875, 887-888.) That is,
the challenge was to a “facial constitutional defect in the relevant probation condition”
and was “capable of correction without reference to the particular sentencing record
developed in the trial court.” (Id. at p. 887.)
       The court went on, however, to “caution, . . . our conclusion does not apply in
every case in which a probation condition is challenged on a constitutional ground. As
stated by the court in [In re] Justin S. [(2001) 93 Cal.App.4th 811], we do not conclude
that ‘all constitutional defects in conditions of probation may be raised for the first time
on appeal, since there may be circumstances that do not present “pure questions of law
that can be resolved without reference to the particular sentencing record developed in
the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver
principles encourage development of the record and a proper exercise of discretion in the
trial court.” [Citation.]’ (Justin S., supra, 93 Cal.App.4th at p. 815, fn. 2.) We also
emphasize that generally, given a meaningful opportunity, the probationer should object
to a perceived facial constitutional flaw at the time a probation condition is initially
imposed in order to permit the trial court to consider, and if appropriate in the exercise of
its informed judgment, to effect a correction.” (In re Sheena K., supra, 40 Cal.4th at
p. 889.)
       The probation condition imposed in this case does not present a pure question of
law that can be resolved without reference to the record developed in the juvenile court.
(See, e.g., In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373; In re Antonio R. (2000)
78 Cal.App.4th 937, 941-942; In re Daniel R. (2006) 144 Cal.App.4th 1, 7-8.) The
minor’s argument demonstrates this point. He argues the condition is “not tailored to fit
the minor” and thus is “not reasonably related to the compelling state interest in
reformation and rehabilitation.” This is a challenge to the reasonableness of the

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probation condition, not its facial constitutionality. (In re Justin S. (2001) 93 Cal.App.4th
811, 813 & fn. 1.) Challenges to the reasonableness of a probation condition cannot be
raised for the first time on appeal. (People v. Welch (1993) 5 Cal.4th 228, 233-235; In re
Justin S., supra, at pp. 814-815.)
       The minor, however, continues to contend the condition improperly impinges on
his fundamental right to travel. We are not persuaded. “[J]uvenile [probation] conditions
may be broader than those pertaining to adult offenders. This is because juveniles are
deemed to be more in need of guidance and supervision than adults, and because a
minor’s constitutional rights are more circumscribed. The state, when it asserts
jurisdiction over a minor, stands in the shoes of the parents. And a parent may ‘curtail a
child’s exercise of the constitutional rights . . . [because a] parent’s own constitutionally
protected “liberty” includes the right to “bring up children” [citation,] and to “direct the
upbringing and education of children.” [Citation.]’ [Citations.]” (In re Antonio R.,
supra, 78 Cal.App.4th at p. 941.)
       At the dispositional hearing, the juvenile court considered the probation
department’s intake social study report wherein the minor admitted to smoking marijuana
twice a week and associating with gang members. The minor also was the target of a
local gang who previously tried to “jump” him into the gang. Under such circumstances,
restricting the minor’s travel to within a 10-mile radius of his home without permission is
not an unreasonable restriction of the minor’s rights.
       Moreover, the probation condition means the minor “may not travel ‘extra-locally’
without his [or her] parents’ cooperation or his [or her] probation officer’s assent. This
does no more than reaffirm the traditional parental prerogative. The condition is thus
consistent with the rehabilitative purpose of probation and constitutional parental
authority. [The minor]’s constitutional rights have not been impermissibly burdened.”
(In re Antonio R., supra, 78 Cal.App.4th at p. 942.)



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                                      DISPOSITION
       The maximum term of confinement is hereby stricken from the juvenile court’s
order of probation. In all other respects, the juvenile court’s orders are affirmed.



                                                       HOCH             , J.



We concur:



         ROBIE            , Acting P. J.



         BUTZ             , J.




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