6 Cal. App. 5th 517

Cal. Ct. App.

2016

In rе I.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. I.S., Defendant and Appellant.

No. A147004

First Dist., Div. One.

Dec. 8, 2016.

5 Cal. App. 5th 517

Counsel

Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Arthur P. Beever and Christina Vom Saаl, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

BANKE, J.—

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The question before us is whether a juvenile court that accepts transfer of an entire delinquency case from another county (Welf. & Inst. Code, § 750), may rule on a Proposition 47 petition to recall the disposition made by the transferor county. Defendant mаintains section 750 of the Welfare and Institutions Code confers such power. The People maintain Proposition 47, and specifically the language of Penal Code section 1170.18, subdivision (a), allows only the transferor court to recall a disposition order. We conclude a transferee juvenile court has the power to rule on a recall petition and therefоre reverse the juvenile court‘s denial of defendant‘s petition. We also modify one of defendant‘s probation conditions.

Background

In late 2013, in Contra Costa County juvenile court, defendant pleaded no contest to felony theft (Pen. Code, § 487, subd. (c)), and the court declared him a ward of the state. About a year later, а new petition alleged defendant unlawfully possessed a firearm (Pen. Code, § 29610), and he again pleaded no contest to a misdemeanor variant of the charge.

The following year, and just prior to a disposition hearing on the new charge, defendant‘s case was transferred to the San Francisco juvеnile court pursuant to Welfare and Institutions Code section 750 because his family had moved. The San Francisco juvenile court redeclared defendant a ward, chose to place him with his mother, reimposed probation conditions, and kept intact orders of the transferor court.

A few days later, defendant filed a Proposition 47 petition in the San Francisco Juvenile Court to reduce his felony theft offense to misdemeanor larceny. The San Francisco court denied his petition without prejudice, ruling only the Contra Costa juvenile court has jurisdiction to act on defendant‘s petition.

Discussion

Minor May Petition Receiving Court Under Proposition 47

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In passing Proposition 47, “voters reclаssified certain criminal offenses from felonies to misdemeanors” and also “necessarily reclassified these offenses for juvenile offenders by virtue of Welfare and Institutions Code section 602‘s correlation of wardship jurisdiction ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with violations of criminal laws.” ( (Alejandro N.).)

“In addition to reclassifying certain felonies as misdemeanors, Proposition 47 alsо added section 1170.18 to the Penal Code. Section 1170.18 provides an opportunity for qualifying offenders who incurred their felony convictions before the effective date of the Act to benefit from the Act‘s reclassification provisions.” (Alejandro N., supra, 238 Cal.App.4th at p. 1222.) Penal Code section 1170.18 further provides a qualifying offender “may petition for a recall of sentence before the trial сourt that entered the judgment of conviction.” (Pen. Code, § 1170.18, subd. (a), italics added.)

The Attorney General points to the latter language—that an offender may petition “the trial court that entered the judgment of conviction“—as foreclosing any other court from acting on a petition to recall and, thus, here mandating that only the Cоntra Costa juvenile court can act on defendant‘s petition.

Defendant contends, however, that Welfare and Institutions Code section 750 empowers the San Francisco juvenile court to hear his petition. Section 750 provides in pertinent part: “Whenever . . . , subsequent to the filing of a petition in the juvenile court of the county where such minor resides, the residence of the person who would be legally entitled to the custody of such minor were it not for the existence of a court order issued pursuant to this chapter is changed to another county, the entire case may be transferred to the juvenile court of the county wherein such person then resides at any time after the court has mаde a finding of the facts upon which it has exercised its jurisdiction over such minor, and the juvenile court of the county wherein such person then resides shall take jurisdiction of the case upon the receipt and filing with it of such finding of the facts and an order transferring the case.” (Welf. & Inst. Code, § 750, italics added.)

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Because transfers of ” ‘the entire case’ ” under Welfare and Institutions Code section 750 are “for all purposes” (; see 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent & Child, § 461, pp. 572-573), defendant maintains a transferee court, like the San Francisco juvenile court, has full authority to rule on a Proposition 47 petition. The Attorney General acknowledges Welfare and Institutions Code section 750 generally effects a wholesale transfer of jurisdiction to the transferee court, but asserts Proposition 47 and, specifically, Penal Code section 1170.18, subdivision (a), creates an “exception” to this statutory transfer оf judicial power and authority.

In People v. Adelmann (2016) 2 Cal.App.5th 1188 [207 Cal.Rptr.3d 201], review granted November 9, 2016, S237602 (Adelmann),¹ the court considered a transfer statute pertaining to adult probationers, Penal Code section 1203.9, which provides for transfer to the superior court for the county ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in which the probationer takes up permanent residence. (Pen. Code, § 1203.9, subd. (a)(1).) With minor exceptions explicitly stated, section 1203.9 specifies a “receiving court shall have entire jurisdiсtion over the case.” (Id., subd. (c); see id., subds. (b)-(e).) Adelmann, thus, concluded that when the San Diego County Superior Court transferred the defendant probationer‘s case to Riverside County, the Riverside County Superior Court had jurisdiction over the entire case, including the authority to address his Proposition 47 petition. (Adelmann, at pp. 1193, 1196; see Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2016) § 25:19, p. 25-97 [“[a] defendant whose case has been transferred who requests relief under section 1170.18 likely will be required to file the petition in the receiving county” because “the receiving county has exclusive jurisdiction” and “the original sentencing judge is no longer available as a matter of law“]; cf. People v. Curry (2016) 1 Cal.App.5th 1073, 1082 [205 Cal.Rptr.3d 328] [where case transfer was more appropriately viewed as a limited one for purposes of supervision only (under Pen. Code, § 3460), original court retained jurisdiction and was proper venue for a Prop. 47 petition], review granted Nov. 9, 2016, S237037.)

Adelmann harmonized Penal Code section 1203.9 (the probationer transfer statute) and Penal Code section 1170.18, subdivision (a) (Prop. 47) by pointing out that section 1203.9 is a grant of jurisdiction, whereas section 1170.18, subdivision (a), does not address jurisdiction. (Adelmann, supra, 2 Cal.App.5th at pp. 1193, 1195-1196, rev.gr.) Adelmann also observed that even if it were legally permissible for a court with no jurisdiction to act on a recall petition, having the transferor court act on a Proposition 47 petition can be viewed as a “right” an adult probationer can waive by petitioning the transferee court. (Adelmann, at p. 1194.)

The Attorney General relies on Steven R. v. Superior Court (2015) 241 Cal.App.4th 812 [194 Cal.Rptr.3d 183] (Steven R.), which addressed the interplay of two juvenile court provisiоns, Welfare and Institutions Code sections 750 and 782. Section 782, at the time of the case, provided: ” ‘A judge of the juvenile court in which a petition was filed, at any time before the minor reaches the age of 21 years, may dismiss the petition . . . if the

court finds that the interests of justice and the welfare of the minor require such dismissal . . . .’ ” (Steven R., at p. 817.) Given that both sections pertain to juvenile offenders and section 782 is the more specific statute when it comes to dismissals, the court concluded it trumped the more general provisions of section 750. (Steven R., at p. 819.)

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We conclude Adelmann is more closely analogous to the case at hand, since it dealt with the interplay of a jurisdictional transfer provision, Penal Code section 1203.9, and Proposition 47. Like Penal Code section 1203.9, Welfare and Institutions Code section 750 vests jurisdiction of the “entire case” with a transferee juvenile court. Thus, the transferee juvenile court unquestionably has the judicial power to entertain a recall petition. Indeed, Proposition 47 is utterly silent as to jurisdiction, and we can only conclude Penal Code section 1170.18, subdivision (a), simply does not speak to the situation where wholesale jurisdiction of a сriminal or juvenile case is transferred from one county to another. The language of Penal Code section 1170.18, subdivision (a), certainly does not purport to curtail ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the jurisdictional grants of either Penal Code section 1203.9 or Welfare and Institutions Code section 750. While the Attorney General maintains Proposition 47 implicitly effected an “exception” to these jurisdictional transfer statutes, the law сautions against finding an implied repeal of a long-standing statute and to do so only if there is no conceivable basis on which the new and existing statutory provisions can be harmonized. (, rev.gr.; see ; .)

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In addition, the courts have historically taken an especially solicitous view towards statutory provisions enacted for the benefit of the minors the juvenile justice system seeks to aide in reforming. (See ; [no wholesale importation of Pen. Code procedures into juvenile system]; see also Welf. & Inst. Code, § 203 [“a proceeding in the juvenile court” shall not “be deemed a criminal proceeding“]; [“the extеnt to which statutes enacted in the adult context apply to juveniles depends on the particular statutory enactments under consideration“].)

One of the important purposes of juvenile delinquency law is to “preserve and strengthen the minor‘s family ties whenever possible” and to rehabilitate—thus, distinguishing it frоm the adult criminal system. (Welf. & Inst. Code, § 202, subd. (a); see In re Holly H. (2002) 104 Cal.App.4th 1324, 1336, fn. 6 [128 Cal.Rptr.2d 907].) The jurisdictional transfer provided for by Welfare and Institutions Code section 750 goes directly to preserving and

supporting the family unit. We do not believe the voters, by enacting Proposition 47, intended to undercut this important goal of the juvenile justice system. Nor do we believe the voters intended to require a juvenile who becomes a ward of the state, for example, in Modoc County, and whose parent secures better employment in and moves to San Diego County, to make and pay for the trek back to Modoc County to obtain a ruling on a Proposition 47 petition to recall. (See People v. Holm (2016) 3 Cal.App.5th 141, 146 [207 Cal.Rptr.3d 439] [in interpreting a proposition, our ” ’ “primary purpose is to ascertain and effectuate the intent of the voters” ’ “].)

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We therefore follow the analytical approach of Adelmann and conclude the San Francisco juvenile court has the power to rule on defendant‘s petition for recall under Proposition 47.

Probation Condition Regarding Weapons

The juvenile court orally imposed the following condition of probation: “You‘re not to possess dangerous оr deadly weapons of any kind which means you‘re not to possess any firearms, ammunition, bullets, or other weapons. You‘re not to possess anything that looks like a weapon. You‘re not to possess anything that can be considered by someone else to be a weapon. You‘re not to possess anything you intend to use as a weapon. That includes real, fake, toy, replica, look-alike weapons. When I say ‘dangerous and deadly weapons,’ I also include knives, clubs, metal knuckles, brass knuckles—things of that nature.”

Defendant challenges those portions of the condition prohibiting him from possessing “anything that looks like a weapon” and “anything that can be considered by someone else to be a weapon.” He contends they are unconstitutionally vague. He suggests neither he nor a probation officer can know what “looks like” a weapon or what others “considеr” to be weapons, and that the condition can be read to preclude him from holding a baseball bat at a baseball game. He also maintains some portions of the condition improperly apply to nondangerous, nondeadly object, and contends a scienter requirement should be added, proposing a modified condition that would prohibit him from “knowingly” possessing deadly or dangerous weapons.

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“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning,’ which encompasses the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍‘concepts of preventing arbitrary law enforcemеnt and providing adequate notice to potential offenders.’ ” ( (Sheena K.).) “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 challenge on the ground of vagueness.” (Ibid.)

When interpreting a probation condition, we rely on “context and common sense” (In re Ramon M. (2009) 178 Cal.App.4th 665, 677 [101 Cal.Rptr.3d 158]) and give the condition ” ‘the meaning that would appear to a reasonable, objective reader’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382 [87 Cal.Rptr.3d 199, 198 P.3d 1]). Although the juvenile court did not use the modifying phrase “dangerous or deadly” each time it refеrred to weapons, the court‘s repetition of that phrase, as well as the examples the court provided, demonstrate the condition reasonably encompasses only dangerous or deadly weapons and their replicas. (See In re Kevin F. (2015) 239 Cal.App.4th 351, 360 [191 Cal.Rptr.3d 144] [“the qualifier ‘dangerous or deadly’ inheres in the сommonly understood meaning of the term ‘weapon’ “].)

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” ’ [D]angerous or deadly weapon,’ ” in turn, has an established meaning: it includes both “inherently deadly items such as dirks and blackjacks which are specifically designed as weapons and are thus ‘deadly weapons’ as a matter of law” and “other items that аre not deadly per se” but that can be used to inflict deadly harm and that a person intends to use “to inflict, or threaten to inflict,” deadly harm. (, italics omitted.) This construction of the weapon-related condition addresses a primary concern defendant raises: that he could bе detained for possessing an everyday object that could conceivably be used as a weapon, such as a pencil or baseball bat, if he does not intend to use it as a deadly weapon. We find it unnecessary, then, for the condition to have an explicit intent requirement, becausе it is part of the definition of “dangerous or deadly weapon.” (See [probation condition not vague so long as it establishes with ” ‘reasonable specificity’ ” what is prohibited].) As a result, we decline to follow , to the extent it required an express intent.

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We further reject the minor‘s position that the weapon-related condition must be modifiеd to include an explicit scienter requirement barring him from “knowingly” possessing any dangerous or deadly weapons or their replicas.² A probation violation cannot be premised on the probationer‘s unwitting noncompliance with his or her probation conditions. (.) Again, we find it unnecessary to modify thе condition to make this requirement explicit. (See ; ;

[150 Cal.Rptr.3d 437].) Thus, we do not follow In re Kevin F., supra, 239 Cal.App.4th at pages 361-362, on this point either.

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We do agree, however, that the weapon-related condition is vague to the extent it prohibits possession of “anything that can be considered by someone else to be a [dangerous or deadly] weapon.” Numerous courts have sustained vagueness challenges to probation conditions prohibiting the use or possession of certain items when the conditions fail to specify that the probationer know that an item falls within the prohibited category. (See, e.g., [sexually explicit materials]; [gang paraphernalia]; [stolen property].) Here, the minor cannot fairly be expected to avoid all the items that any other person might consider ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to be dangerous or deadly weapons, and we conclude that the simplest course is to strike the offending phrase.

Probation Condition Regarding Drugs

The juvenile court also imposed a condition regarding drug use: that defendant could not “use, possess, or sell any nаrcotics, controlled substances, alcohol, marijuana, or other intoxicants,” meaning “no drugs without a lawful prescription from a doctor.” Defendant contends this, too, requires a scienter requirement. We disagree for the reasons just discussed in connection with the weapons condition.

Disposition

The order denying the minor‘s Proposition 47 petition is reversed and the matter is remanded for the court to rule on the petition. The weapon-related condition is modified to state defendant is “not to possess any dangerous or deadly weapons, including firearms, ammunition, bullets, knives, clubs, brass knuckles, or metal knuсkles, or any replicas of such weapons.” The challenged orders are otherwise affirmed.

Humes, P. J., and Margulies, J., concurred.

Notes

Pursuant to the California Rules of Court, new rules 8.1105(e)(1)(B) and 8.1115(e)(1), a published Court of Appeal opinion remains published and retains persuasive value despite the Supreme Court‘s grant of review.

A similar issue is currently pending before our state Supreme Court. (, review granted Sept. 9, 2015, S227193.)

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