People v. Terrell W. (In re Terrell W.)

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In re Terrell W., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. TERRELL W., Defendant and Appellant.

A168771

California Court of Appeals, First District, Second Division

December 11, 2024

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. JV035627-01

MEMORANDUM OPINION^[1]

Miller, J.

The juvenile court found that defendant Terrell W. (Minor) committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), adjudged Minor to be a ward of the court and placed him on probation. In this appeal Minor argues that the court erred in failing to designate his offense a misdemeanor or felony as required by section 702 of the Welfare and Institutions Code, and he argues that the following condition of his probation is unconstitutionally vague: "Do not stay away from home unless with a parent or legal guardian or without prior permission of the probation officer." We agree with Minor and the People that the matter should be remanded to the juvenile court to designate the offense a misdemeanor or felony and to clarify the challenged probation condition.

Designation of Offense as Misdemeanor or Felony

A violation of Penal Code section 245, subdivision (a)(1), may be punished as a felony or a misdemeanor and is therefore a so-called" 'wobbler'" offense. (In re D.D. (2015) 234 Cal.App.4th 824, 829.) At no point did the juvenile court declare whether Minor's offense was a misdemeanor or felony.

Section 702 of the Welfare and Institutions Code provides that if a 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." Section 702 "requires an explicit declaration," which must be made at or before disposition. (In re G.C. (2020) 8 Cal.5th 1119, 1125.)" '[N]either the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute' for the required declaration." (In re F.M. (2023) 14 Cal.5th 701, 712.) Remand for compliance with section 702 is required "unless the record as a whole establishes that the juvenile court 'was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.'" (Ibid.)

Both parties assert that remand is required here; based on our review of the record, we agree with them. Although there is some suggestion that the court and the probation department viewed the offense as a felony, the juvenile court did not clearly articulate that point. Nor does the record reflect that the juvenile court was aware of and exercised its discretion in this regard.

Vagueness Challenge

The terms of Minor's probation include, "Do not stay away from home unless with a parent or legal guardian or without prior permission of the probation officer." Minor did not object to the term when it was imposed, but contends on appeal that it is unconstitutionally vague on its face. Because Minor's vagueness challenge presents a"' "pure question[ ] of law that can be resolved without reference to the particular sentencing record developed in the trial court," '" his failure to raise the issue below does not constitute forfeiture. (In re Sheena K. (2007) 40 Cal.4th 875 889.)

"To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th 494, 500.) The probation condition here does not inform Minor how long he can stay away from home without violating the condition if he is not with a parent or guardian and has not obtained prior permission from his probation officer. Must he obtain...