Filed 1/17/14 In re Alejandro S. CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re Alejandro S., a Person Coming Under 

the Juvenile Court Law.

 H039497

 (Santa Clara County

 Super. Ct. No. JV38867)

THE PEOPLE,

Plaintiff and Respondent,

 v.

Alejandro S.,

 Defendant and Appellant.

In January 2012, a petition was filed alleging that Alejandro S., a minor (16 years 

old at the time of the petition’s filing), came within the provisions of Welfare and 

Institutions Code section 602. The petition charged the minor with having committed an 

offense that if committed by an adult would have constituted a felony, namely, 

possession of a weapon on school grounds (Pen. Code, § 626.10, subd. (a)(1)).

1

 The 

minor admitted the charge alleged, the court sustained the petition, and it adjudged the 

minor to be eligible for deferred entry of judgment. After the minor failed to comply 

with the terms of the deferred entry of judgment program, the court declared him a ward 

of the court and placed him on probation under various terms and conditions. 

 

1 All further statutory references are to the Penal Code unless otherwise stated.
The minor asserts three claims of error on appeal. He contends the court erred by 

failing to make an express finding as to whether the offense charged under 

section 626.10, subdivision (a)(1) was a felony or a misdemeanor. Secondly, he argues 

that a probation condition prohibiting gang activity is vague and overly broad. Third, he 

asserts that the court erred in ordering him to reimburse the Public Defender’s Office for 

its representation of him in the proceedings. 

We conclude—noting that the Attorney General concedes error—that each of the 

minor’s claims has merit. We will accordingly reverse the dispositional order, remand 

the case, and instruct the court to (1) make an express finding as to whether the charged 

offense was a felony or a misdemeanor; (2) modify the first clause of probation condition 

number 17 to provide that the minor shall not knowingly engage in gang activity; and (3) 

clarify that the minor shall not be personally responsible for reimbursement of attorney 

fees.

FACTS

2

At approximately 3:10 in the afternoon on October 5, 2011, a San José police 

officer, who was working as a campus officer, observed the minor enter the Piedmont

Hills High School campus. Because the officer did not recognize the minor as a student 

of the school, he contacted the minor and confirmed he was not a Piedmont Hills student. 

The officer further observed that the minor was trying to conceal something inside his 

jacket, keeping his left arm pinned against his body. He conducted a patsearch of the 

minor for officer safety reasons; while doing so, a 25-inch metal rod fell out of the left 

side of the interior of the minor’s jacket. During a further search, the officer found a 

Swiss Army knife that had a two and one-fourth inch blade that locked into position. The 

minor was cited by the officer and then released. 

 

2

The facts are taken from a “Deferred Entry of Judgment Suitability Report” 

prepared by the Santa Clara County Probation Department. 
During a subsequent interview by a probation officer, the minor admitted to 

having carried the metal rod and the folding knife, saying that “he had been carrying 

them in case anybody started ‘something.’ ” The minor also admitted that he had 

associated with members of the “ ‘VNL’ ” Norteño gang, but denied that he had ever 

been “ ‘jumped’ into a gang.” The minor also admitted to the probation officer that he 

smoked marijuana twice a week and occasionally consumed alcohol. 

PROCEDURAL BACKGROUND

On January 13, 2012, the Santa Clara County District Attorney filed a petition 

under Welfare and Institutions Code section 602, subdivision (a) with the juvenile court 

below. In the petition, the People alleged that the minor had committed an offense that if 

committed by an adult would be a crime, namely, possession of a weapon on school 

grounds, a felony (§ 626.10, subd. (a)(1)). 

On April 25, 2012, the minor admitted the allegations of the petition. The court 

sustained the petition, and adjudged the minor to be eligible for deferred entry of 

judgment.3 

The minor thereafter failed to comply with the terms of his deferred entry of 

judgment program and, on February 4, 2013, the court made a finding of such 

noncompliance and ordered the minor into custody. On March 13, 2013, the court 

ordered that the minor be released on an electronic monitoring program. On March 27, 

2013, the minor was declared a ward of the court and placed on probation. A number of 

conditions were imposed by the court in connection with the probation order. One such 

condition was “[t]hat said minor not participate in any gang activity.” 

 

3 The court indicated initially that it would follow the Probation Department’s 

recommendation and find the minor unsuitable for the Deferred Entry of Judgment 

program. After further discussion at the hearing, the court indicated it would permit the 

minor to enter the program under a “zero tolerance” admonition that any violation of the 

terms imposed upon him would result in the revocation of his eligibility for the program. 
The minor filed a timely notice of appeal from the probation order. 

DISCUSSION

I. Determination of Whether Charged Offense Was Felony or Misdemeanor 

The minor was charged with having committed the offense prohibited by section 

626.10, subdivision (a)(1). Pursuant to the express language of the statute, the offense, if 

committed by an adult, constitutes a crime that is punishable as either a felony or a 

misdemeanor.4 As such, the offense is a “wobbler.”5

The minor argues on appeal that when the court accepted the minor’s admission 

and found the allegation in the petition true, it erred by failing to indicate on the record 

whether the charged offense was a felony or a misdemeanor. The Attorney General 

concedes the error. 

We accept the Attorney General’s concession. Under Welfare and Institutions 

Code section 702, the juvenile court is required to make a determination of whether the 

wobbler offense charged is a felony or a misdemeanor.6 As explained by our high court: 

 

4

“Any person, [subject to exceptions inapplicable in this case] . . . , who brings or 

possesses any dirk, dagger, ice pick, knife having a blade longer than 2 1/2 inches, 

folding knife with a blade that locks into place, razor with an unguarded blade, taser, or 

stun gun, as defined in subdivision (a) of Section 244.5, any instrument that expels a 

metallic projectile, such as a BB or a pellet, through the force of air pressure, CO2 

pressure, or spring action, or any spot marker gun, upon the grounds of, or within, any 

public or private school providing instruction in kindergarten or any of grades 1 to 12, 

inclusive, is guilty of a public offense, punishable by imprisonment in a county jail not 

exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.” 

(§ 626.10, subd. (a)(1).)

5

“An alternative felony/misdemeanor, also known as a ‘wobbler’ is deemed a 

felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by 

the sentencing court under Penal Code section 17, subdivision (b). [Citation.]” (People v. 

Statum (2002) 28 Cal.4th 682, 685.)

6

“If 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.” (Welf. & Inst. Code, § 702; see also Cal. 

(Cont.) 
“The language of the provision is unambiguous. It requires an explicit declaration by the 

juvenile court whether an offense would be a felony or misdemeanor in the case of an 

adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) As the court explained, “the 

purpose of the statute is not solely administrative. . . . [T]he requirement that the juvenile 

court declare whether a so-called ‘wobbler’ offense was 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.” (Id. at p. 1207.)

Therefore, the juvenile court’s failure to make an express declaration under the statute 

constitutes error which required that the matter be remanded for the court to make such a 

determination. (Id. at p. 1204.) 

Here, the petition alleged that the offense under section 626.10, subdivision (a)(1) 

was a felony, the minor admitted the allegation, and the dispositional order indicates the 

offense as a felony. These facts are insufficient to show compliance with Welfare and 

Institutions Code section 702. (See In re Manzy W., supra, 14 Cal.4th at p. 1208 

[petition’s allegation that offense is a felony is no “substitute for a declaration by the 

juvenile court as to whether an offense is a misdemeanor or felony”]; see also In re 

Nancy C. (2005) 133 Cal.App.4th 508, 512 [“a minor’s admission of a wobbler offense 

charged as a felony is not an ‘adjudication’ of the misdemeanor or felony status of that 

offense”].) And the record contains no express declaration by the court as to whether the 

wobbler offense charged was a felony or a misdemeanor. Furthermore, there is nothing 

we may glean from the record that indicates the court was aware of its discretion to make 

a determination that the charged offense was either a misdemeanor or felony. Thus, this 

is not an instance in which remand would be “redundant” because “the 

 

Rules of Court, rule 5.780(e)(5) [if juvenile court finds allegations of petition true, it 

“must make findings on . . . [¶] . . .[¶] . . . the degree of the offense and whether it would 

be a misdemeanor or a felony had the offense been committed by an adult”].)
record . . . show[s] that the juvenile 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.” (In re Manzy W., supra, 14 Cal.4th at p. 1209.)

Accordingly, we will reverse the order with instructions that the juvenile court, in 

compliance with Welfare and Institutions Code section 702, declare whether the offense 

admitted to by the minor is a felony or a misdemeanor.

III. Probation (Gang) Condition 

A. Applicable Law

A juvenile court is empowered to impose upon a ward placed on probation “any 

and all reasonable conditions that it may determine fitting and proper to the end that 

justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. 

& Inst. Code, § 730, subd. (b).) “The juvenile court has wide discretion to select 

appropriate conditions and may impose ‘ “any reasonable condition that is ‘fitting and 

proper to the end that justice may be done and the reformation and rehabilitation of the 

ward enhanced.’ ” ’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena 

K.).) This discretion is in fact broader with respect to the imposition of probation 

conditions for juveniles than it is for adult offenders. (In re E.O. (2010) 188 Cal.App.4th 

1149, 1152; see also Sheena K., at p. 889 [probation condition that may be 

unconstitutional for adult offender may be permissible for minor under juvenile court’s 

supervision].) 

Both adult offenders and juveniles may challenge a probation condition on the 

grounds that it is unconstitutionally vague or overly broad. (See Sheena K., supra, 40 

Cal.4th at p. 887.) As we have explained: “Although the two objections are often 

mentioned in the same breath, they are conceptually quite distinct. A restriction is 

unconstitutionally vague if it is not ‘ “sufficiently precise for the probationer to know 

what is required of him, and for the court to determine whether the condition has been 

violated.” ’ [Citation.] A restriction failing this test does not give adequate notice—“fair 
warning”—of the conduct proscribed. [Citations.] A restriction is unconstitutionally 

overbroad, on the other hand, if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not 

‘tailored carefully and reasonably related to the compelling state interest in reformation 

and rehabilitation.’ [Citations.] The essential question in an overbreadth challenge is the 

closeness of the fit between the legitimate purpose of the restriction and the burden it 

imposes on the defendant’s constitutional rights—bearing in mind, of course, that 

perfection in such matters is impossible, and that practical necessity will justify some 

infringement.” (In re E.O., supra, 188 Cal.App.4th at p. 1153; see also In re Victor L. 

(2010) 182 Cal.App.4th 902, 910.) 

Any objection to the reasonableness of a probation condition is forfeited if not 

raised at the time of imposition. (See In re Justin S. (2001) 93 Cal.App.4th 811, 814; see 

also Sheena K., supra, 40 Cal.4th at p. 883, fn. 4; People v. Welch (1993) 5 Cal.4th 228, 

237.) Constitutional challenges to probation conditions on their face, however, may be 

raised on appeal without objection in the court below. (Sheena K., at pp. 887-889.)

B. Gang Condition

The minor challenges a probation condition imposed by the court prohibiting gang 

activity. That condition, number 17, reads: “That said minor not participate in any gang 

activity and not visit or remain in any specific location known to him to be, or that the 

Probation Officer informs him to be, an area of gang-related activity.” The minor

challenges the first clause of this condition, claiming that it is unconstitutional in that it 

“does not meet the notice required by the due process clauses of the California and 

federal constitutions.” He asserts that “the probation condition must be modified to 

include a knowledge requirement so that in order to be found out of compliance with the 

term of probation, [the minor] knows that the activity he is engaged in is ‘gang 

activity.’ ” 
The minor did not raise this challenge below. But because his claim is that the 

probation condition is unconstitutional, it is cognizable on appeal. (Sheena K., supra, 40 

Cal.4th at pp. 887-889.)

The Attorney General concedes the probation condition is overly broad and that it 

“should be modified to include a knowledge requirement.” We accept this concession.

“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. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) As we have observed, 

“[I]n a variety of contexts . . ., California appellate courts have found probation 

conditions to be unconstitutionally vague or overbroad when they do not require the 

probationer to have knowledge of the prohibited conduct or circumstances.” (People v. 

Kim (2011) 193 Cal.App.4th 836, 843.) Thus, probation conditions that fail to include 

language requiring the probationer’s knowing violation of the condition have been 

invalidated in the context of prohibitions on association with felons, ex-felons, or 

narcotics dealers or users (People v. Garcia (1993) 19 Cal.App.4th 97, 102); association 

with gang members (People v. Lopez (1998) 66 Cal.App.4th 615, 628); association with 

probationers, parolees, or gang members (In re H.C. (2009) 175 Cal.App.4th 1067, 

1071); association with persons under 18 (People v. Turner (2007) 155 

Cal.App.4th 1432, 1437); frequenting areas of gang-related activity (People v. Leon 

(2010) 181 Cal.App.4th 943, 952); presence near school grounds during school hours 

(People v. Barajas (2011) 198 Cal.App.4th 748, 760-763 [condition prohibiting presence 

adjacent to school grounds during school hours modified to prohibit being knowingly 

present within 50 feet of school during school hours]); possessing stolen property, or 

possessing firearms or ammunition (People v. Freitas (2009) 179 Cal.App.4th 747, 751-

752); and possessing, wearing or displaying gang-affiliated material (In re Vincent G.

(2008) 162 Cal.App.4th 238, 245, 247-248).
Here, the probation condition prohibiting defendant from “not participat[ing] in 

any gang activity” is vague and overly broad because it does not include a scienter 

element. (See, e.g., People v. Leon, supra, 181 Cal.App.4th at p. 950 [probation 

condition prohibiting association with gang members ordered modified to prohibit 

“ ‘association with any person whom you know, or whom the probation officer informs 

you, is a gang member’ ”]; People v. Lopez, supra, 66 Cal.App.4th at pp. 622, 628-629

[probation condition prohibiting defendant from becoming involved in “gang activities,” 

associating with “gang members” and wearing, possessing or displaying “gang insignia” 

was both overbroad and void for vagueness].) We will therefore order the probation 

condition modified to include a specific knowledge requirement. (Sheena K., supra, 40 

Cal.4th at p. 892 [“modification to impose an explicit knowledge requirement is 

necessary to render [a probation] condition constitutional”].) The first clause of the 

challenged probation condition shall be modified to read (with the modifications 

italicized): “That said minor not knowingly participate in any gang activity . . .”

III. Probation (Attorney Fees Reimbursement) Condition

As a condition of probation, the court ordered that the Public Defender’s Office be 

reimbursed the sum of $300. This was based upon the representation of minor’s counsel 

that there had been eight court appearances of substance made on the minor’s behalf. 

There is no indication in either the reporter’s transcript or the court order as to whether 

the minor was ordered personally responsible for these attorney fees. But it is stated in 

the order generally: “The minor and his parents are jointly and severally responsible for 

the payment of fines, penalty assessments, and/or restitution, as ordered by the Court.” 

The minor challenges the probation order to the extent it may be construed as 

making him personally responsible for the attorney fees. He argues that “(1) the court 

lacks authority to charge attorney fees to Alejandro; (2) there was insufficient evidence of 

Alejandro’s ability to pay the fees; and (3) assessing the fees on a minor as a condition of 

probation would violate the equal protection clause of the state and federal constitutions.” 
The Attorney General concedes that the probation order, to the extent it purports to 

impose personal liability upon the minor for reimbursement of attorney fees, is 

unauthorized by law. She agrees that “[t]he juvenile court should clarify that [the minor] 

is not personally liable for the attorney[] fee[s], and should modify the dispositional order 

as authorized by [Welfare & Institutions Code] section 903.1.” We accept this 

concession. 

Under Welfare and Institutions Code section 903.1, subdivision (a), “[t]he father, 

mother, spouse, or other person liable for the support of a minor, the estate of that person, 

and the estate of the minor, shall be liable for the cost to the county or the court, 

whichever entity incurred the expenses, of legal services rendered to the minor by an 

attorney pursuant to an order of the juvenile court.” The statute makes no provision for 

imposing personal liability on the minor for the attorney fees incurred in representing him 

or her in the juvenile proceeding. And our high court has explained that Welfare and 

Institutions Code section 903.1 “is merely declarative of the parents’ preexisting 

obligation to provide reasonable and necessary support to their minor children, and to 

reimburse third persons providing that support upon the parents’ failure to do so. 

[Citation.]” (In re Ricky H. (1970) 2 Cal.3d 513, 521.) Moreover, the imposition of

attorney fees as a condition of probation is prohibited in both adult criminal cases and in 

juvenile delinquency proceedings. (People v. Faatiliga (1992) 10 Cal.App.4th 1276, 

1280, disapproved on other grounds in People v. Flores (2003) 30 Cal.4th 1059, 1068; In 

re Elizabeth S. (1982) 138 Cal.App.3d 450, 454.)

Based upon the foregoing, we conclude that to the extent the probation order may 

be construed as imposing personal liability on the minor for reimbursement of attorney 

fees, it is unauthorized under the law. Accordingly, we will upon remand direct the court 
to modify its order to clarify that the minor is not personally responsible for 

reimbursement of attorney fees incurred in the proceedings.7

DISPOSITION

The dispositional order is reversed, and the matter is remanded with instructions 

that the court (1) in compliance with Welfare and Institutions Code section 702, declare

whether the offense admitted to by the minor is a felony or a misdemeanor; (2) in the new 

order, revise the gang condition as provided in condition 17 so the first clause will read 

“That said minor not knowingly participate in any gang activity . . .”; and (3) clarify in 

the new order that the minor is not personally responsible for reimbursement of his 

attorney fees.

 

7 The minor did not raise this challenge below. But because imposition of 

personal liability for attorney fees was unauthorized under the law, it is cognizable on 

appeal. (People v. Scott (1994) 9 Cal.4th 331, 354 [appellate court may take action on its 

own motion to correct (an unauthorized sentence), even where the parties have failed to 

raise the issue]; see also People v. Anderson (2010) 50 Cal.4th 19, 26 [challenge to 

probation condition based upon assertion that restitution was not authorized by law was 

cognizable, even though not raised before trial court].)
 

Márquez, J.

WE CONCUR:

 

 Bamattre-Manoukian, Acting P.J.

 

 Grover, J.