Filed 8/31/23 In re S.L.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 S.L.S., a Person Coming Under the 

Juvenile Court Law.

 H050182

 (Santa Clara County

 Super. Ct. No. 20JV44202E)

THE PEOPLE,

Plaintiff and Respondent,

v.

S.L.S.,

Defendant and Appellant.

After a contested jurisdictional hearing, the juvenile court sustained allegations in 

the delinquency petition that the minor S.L.S. committed acts that would constitute

second degree robbery and grand theft if committed by an adult. At the disposition 

hearing, the court ordered that S.L.S. continue as a ward of the court and committed him 

to the Enhanced Ranch Program with various conditions of probation.

S.L.S. raises three claims on appeal. First, he contends the evidence was 

insufficient to sustain the robbery allegation. He argues that because the wardship

petition identified a business as the victim of the robbery, the prosecution could not prove 

the victim experienced the required element of fear. For the reasons below, we conclude 

this claim is without merit.

Second, S.L.S. contends the grand theft finding must be set aside because grand 

theft is a lesser included offense of second degree robbery. Third, S.L.S. contends a 

condition authorizing the probation officer to place him out of his home to “meet family 
2

crises” is unconstitutionally vague. The Attorney General concedes these latter two 

claims, and we accept the concessions.

Accordingly, we will reverse the order sustaining the grand theft allegation and

remand the matter to the juvenile court to modify or delete the challenged probation

condition. We will affirm the judgment in all other aspects.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

The wardship petition alleged S.L.S. committed acts that, if committed by an 

adult, would constitute four offenses: count 1—second degree robbery (Pen. Code, 

§ 211)1; count 2—grand theft (§ 487, subd. (a)); count 3—buying or receiving stolen 

property (§ 496, subd. (a)); and count 4—resisting, delaying, or obstructing a peace 

officer (§ 148, subd. (a)(1)).

After a contested jurisdictional hearing, the juvenile court sustained the violations 

alleged in counts 1 and 2. The court dismissed count 3 as “duplicative” and granted the 

prosecution’s motion to dismiss count 4.

At the dispositional hearing, the court continued S.L.S. as a ward of the court and 

committed him to the Santa Clara County Enhanced Ranch Program for six to eight 

months. Among other probation conditions, the juvenile court authorized the assigned

probation officer to “to place [S.L.S.] out of home from time to time to meet family 

crises.”

S.L.S. timely appealed. 

B. Facts of the Offenses

In March 2022, Andrew Krebs and Thomas Borello were working as employees at 

Mike’s Cameras. S.L.S. and another male entered the store wearing hoodies and surgical 

masks. When Krebs went to the back of the store, S.L.S.’s accomplice went behind the 

1 Subsequent undesignated statutory references are to the Penal Code.
3

counter and directed S.L.S. to “[m]ake a move” and go over the counter to steal the 

cameras. In response, S.L.S. moved across the counter and began to place cameras into 

his bag. Borello testified that “at that point, we knew we were being robbed.” When 

Krebs returned to the front of the store, he felt “very stressed” because he was “seeing 

somebody taking cameras from the display” and instructed the two individuals to “stop.”

When S.L.S.’s accomplice brandished a gun, Krebs backed away and called 911 

from the rear of the store. Borello also saw the weapon and testified that he “did not have 

any feelings. I felt like I was watching a movie or something. I didn’t feel fear. I was a 

bit concerned when he reached for his gun and his hand was shaking. I mean, I was 

thinking, ‘Oh great. We have somebody who doesn’t even know how to handle a 

weapon.’ ” Borello explained he did not move because “in a situation like that, the less 

you say and move around the better.” After taking the cameras, S.L.S. and his 

accomplice led police on a vehicle pursuit that ultimately resulted in a collision. After a 

brief foot pursuit, the police took S.L.S. and his accomplice into custody, and recovered 

camera equipment from the vehicle.

II. DISCUSSION

A. Sufficiency of the Evidence for Robbery

S.L.S. contends the evidence was insufficient to support a finding of robbery 

because the prosecution failed to show the victim—identified in the wardship petition as 

“Mike’s Cameras”—felt fear. The Attorney General argues S.L.S. forfeited his claim 

because he failed to object to any variance between the petition and the proof at the trial 

court. The Attorney General further argues the claim fails on the merits because the 

evidence was sufficient to support a finding that the employees were agents of Mike’s 

Cameras and therefore “putative victims of the robbery.”

1. Legal Principles

“Robbery is the felonious taking of personal property in the possession of another, 

from his person or immediate presence, and against his will, accomplished by means of 
4

force or fear.” (§ 211.) “The fear mentioned in Section 211 may be either: 1. The fear 

of an unlawful injury to the person or property of the person robbed, or of any relative of 

his or member of his family; or, 2. The fear of an immediate and unlawful injury to the 

person or property of anyone in the company of the person robbed at the time of the 

robbery.” (§ 212.) “It is not necessary that there be direct proof of fear; fear may be 

inferred from the circumstances. . . .” (People v. Morehead (2011) 191 Cal.App.4th 765, 

775.) Likewise, fear may be inferred despite contradictory testimony from the robbery 

victim. (Ibid.)

The rules of pleading in criminal cases are set forth in part 2, title 5, chapter 2 of 

the Penal Code. (§ 948 et seq.) Section 952 provides in part, “In charging an offense, 

each count shall contain, and shall be sufficient if it contains in substance, a statement 

that the accused has committed some public offense therein specified.” (§ 952.) Such 

statement “may be in the words of the enactment describing the offense or declaring the 

matter to be a public offense, or in any words sufficient to give the accused notice of the 

offense” and the statement may be made in “ordinary and concise language without any 

technical averments or any allegations of matter not essential to be proved.” (Ibid.) 

“When an offense involves the commission of, or an attempt to commit a private injury, 

and is described with sufficient certainty in other respects to identify the act, an 

erroneous allegation as to the person injured, or intended to be injured, or of the place 

where the offense was committed, or of the property involved in its commission, is not 

material.” (§ 956, italics added.) “No accusatory pleading is insufficient, nor can the 

trial, judgment, or other proceeding thereon be affected by reason of any defect or 

imperfection in matter of form which does not prejudice a substantial right of the 

defendant upon the merits.” (§ 960.) 

A “defendant has forfeited [their] right to object to an alleged variance between 

the pleading and the proof by failing to raise the objection in the trial court.” (People v. 

Maury (2003) 30 Cal. 4th 342, 427 (Maury).) Further, “[a] defendant may not be 
5

permitted to submit to a trial on the merits without objection, taking his chances of 

obtaining a favorable verdict, and reserve, in the event of an adverse judgment, any 

objection which he may have to mere irregularities in the form of indictment or pleading, 

for an attack in the appellate court for the first time. [Citations.]” (People v. Meraviglia

(1925) 73 Cal.App. 402, 407 (Meraviglia).)

In reviewing a challenge to the sufficiency of the evidence in the sustaining of an 

allegation in a juvenile case, “we review the whole record in the light most favorable to 

the judgment to determine whether it discloses substantial evidence—that is, evidence 

that is reasonable, credible, and of solid value—from which a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. 

Gonzales (2011) 51 Cal.4th 894, 941.) However, we cannot “venture beyond the 

evidence presented at trial, and may consider only those inferences that are reasonably 

supported by the record.” (People v. Ware (2022) 14 Cal.5th 151, 167.) Reasonable 

inferences “may not be based on suspicion alone, or on imagination, speculation, 

supposition, surmise, conjecture, or guess work.” (People v. Morris (1988) 46 Cal.3d 1, 

21, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) 

“A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s 

verdict. [Citations.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

2. Forfeiture

S.L.S. argues that by identifying the purported victim as “Mike’s Cameras” 

instead of Krebs or Borello the prosecution made a “charging decision” and “placed upon 

themselves the burden of proving beyond a reasonable doubt that Mike’s Cameras felt 

fear.” The Attorney General contends this argument constitutes a claim of variance 

between pleading and proof and that S.L.S. forfeited the claim by failing to object below. 

We agree with the Attorney General on both points. 
6

In People v. Collins (1960) 54 Cal.2d 57, the defendants were charged with 

forcible rape under former section 261, subdivision 3. (Id. at p. 60.) In a bench trial, the 

court found them guilty of statutory rape under subdivision 1. On appeal, the defendants 

claimed they were improperly convicted of statutory rape despite sufficient evidence of 

that offense because they were charged instead with forcible rape. (Id. at p. 58.) The 

court held that when the information charges the accused with one crime, but the proof 

supports a charge of an offense in another subdivision of that crime, it constitutes a 

“variance” between pleading and proof. (Id. at p. 59.) To challenge a variance on 

appeal, a defendant must object below to “irregularities in the form of indictment or 

pleading” or the claim is forfeited. (Meraviglia, supra, 73 Cal.App. at p. 407; Maury, 

supra, 30 Cal.4th at p. 427.)

S.L.S. nonetheless characterizes the claim as insufficiency of evidence. He 

contends the prosecution failed to prove that the named victim, Mike’s Cameras, felt fear 

since the store is inanimate. This implies the prosecution should have identified Krebs or 

Borello as the “actual” victims of the robbery. S.L.S. does not dispute that had Krebs or 

Borello been identified as victims in the petition, the evidence would have been sufficient 

to show they felt fear. The thrust of the argument is that the petition simply misidentified 

the victim. Because S.L.S. failed to object to this variance below, he has forfeited the

claim. (Maury, supra, 30 Cal.4th at p. 427.) 

3. S.L.S. Fails to Show He Was Prejudiced by the Variance

But for the reasons below, even if we did not find it forfeited, the claim fails on 

the merits. The Attorney General contends designating the wrong victim is immaterial

here. We agree. “A variance is not regarded as material unless it is of such a substantive 

character as to mislead the accused in preparing his defense, or is likely to place him in 

second jeopardy for the same offense.” (People v. Williams (1945) 27 Cal. 2d 220, 226.) 

In People v. Olf (1961) 195 Cal.App.2d 97, the court applied section 956 in holding that 

the erroneous designation of a victim or the omission of the name of the victim from a 
7

charging document is immaterial. Likewise, in People v. Foster (1926) 198 Cal. 112, the 

court held that “[t]he person injured is not material if the crime is described in the 

information with sufficient certainty as to identify the act.” (Id. at p. 122.) 

This rule applies equally in juvenile court proceedings. In In re Michael D. (2002) 

100 Cal.App.4th 115, the juvenile claimed that the evidence presented by the prosecution 

was insufficient to prove an allegation of the petition, which alleged the juvenile pointed

a replica firearm at a specific person. (Id. at p. 128.) The Court of Appeal held that “the 

variance between the petition and the evidence is inconsequential” because “the minor, in 

effect, concedes he had adequate notice of the charges against him.” (Ibid.) Further, 

“[t]he charging document provides notice to the accused. As long as it serves that 

purpose, it is adequate.” (Id. at p. 127.) 

Here, S.L.S. contends that he “relied on the People’s charging decision in the 

petition to provide adequate notice.” But S.L.S. provides no evidence or citation to the 

record showing he relied on the specific identification of the victim to his detriment. The 

record shows S.L.S. had the opportunity to, and did, cross-examine both store employees

as if they were victims. At no point before or during trial did S.L.S. contend that the 

identification of Mike’s Cameras as the victim harmed his defense. We conclude that the 

identification of Mike’s Cameras as the victim in the wardship petition provided 

sufficient notice of the offenses charged and that S.L.S. was not misled in preparing his 

defense. 

S.L.S.’s reliance on People v. Miller (1977) 18 Cal.3d 873 (Miller) (overruled on 

another ground by People v. King (1993) 5 Cal.4th 59) is misplaced. In Miller, the 

defendant and an accomplice robbed a jewelry store. (Id. at p. 878.) In the course of the 

robbery, while a salesperson, John Keating, displayed watches to Miller’s accomplice, 

Miller shot the security guard, Charles Burk. (Ibid.) The information alleged Miller by 

means of force or fear took personal property “from the person, possession and 

immediate presence of Jon [sic] Keating, and in the course of the robbery, with the intent 
8

to inflict great bodily injury upon Charles Burk, did inflict great bodily injury upon 

Charles Burk.” (Id. at p. 879.) Miller challenged the augmented punishment imposed 

under former section 213 because “there is no evidence or finding that he intentionally 

inflicted great bodily injury on the victim of the robbery.” (Id. at p. 878.) Miller argued

that the victim named in the information—John Keating—suffered no bodily injury, and 

that the bodily harm suffered by Charles Burk, who was not named as the robbery victim,

could not be substituted in lieu of any injury to Keating. (Id. at p. 880.) 

The Supreme Court agreed with Miller on this point, noting that former “[s]ection 

213 provides in pertinent part that if a defendant ‘inflicted great bodily injury on the 

victim of the robbery, such fact shall be charged in the indictment or information and if 

found to be true’ the defendant shall suffer the augmented penalty.” (Miller, supra, 

18 Cal.3d at p. 881.) Thus a “necessary element is great bodily injury to a victim of a 

robbery. It is not enough that Burk falls within that class of persons who may have been 

alleged to be a victim; the trier of fact must have found him to be a victim on pleadings 

and instructions that properly frame the issue.” (Id. at p. 882.) The information did not 

identify Burk as a victim of the robbery, and even though Burk could have been 

designated as a victim, he also could have been a “complete stranger who was 

unintentionally and accidentally injured” during the course of the robbery. (Id. at p. 881.)

“As the information charged only injury to Burk without alleging his status, we cannot 

conclude that the jury found him to be a victim of the robbery. . . . Accordingly, the 

finding of great bodily injury to Burk cannot sustain the imposition of the increased 

punishment for robbery.” (Id. at p. 882.)

The logic of Miller does not support S.L.S.’s claim. First, the text of former 

section 213 created an increased punishment for great bodily injury inflicted on “the

victim of the robbery,” not “any” victim of the robbery. (Miller, supra, 18 Cal.3d at 

p. 880, fn. 3, italics added.) The text thereby assumed a single robbery victim, and the 

defendant had to inflict great bodily injury on that same victim to trigger the increased 
9

punishment. Furthermore, the text expressly required that this condition be pleaded in 

the charging document. Thus, regardless of the victim’s identity as alleged in the 

charging document, the charging document had to plead—and a jury had to find—that 

the injured person was the victim of the robbery for the increased punishment to apply. 

(Id. at p. 882.) But because the information in Miller only named Keating as the victim 

of the robbery, the jury never found Burk was a victim of the robbery; the jury found only 

that Keating was a victim, and Keating had suffered no injuries. Therefore, the increased 

punishment could not be applied based on injuries suffered solely by Burk. In short, the 

Supreme Court struck the finding of great bodily injury not simply because the pleading 

identified Keating instead of Burk as the victim of the robbery, but because the jury never 

found that Burk was also a victim of the robbery.

Unlike former section 213, here the text of section 211 contains no language 

requiring a finding that injuries were suffered by the same person who was found to be 

the victim of the robbery. Nor does section 211 set forth any specific pleading 

requirements. As set forth above, the wardship petition in this case is governed by the 

generally applicable rules of pleading set forth in sections 948 et. seq. Under those rules, 

the petition was not required to name a specific victim of the robbery, and nothing in 

section 211 required the petition to allege any other conditions applied to the same 

victim. Miller is therefore inapposite.

For the reasons above, we conclude this claim is without merit.

 B. Grand Theft is a Lesser Included Offense of Robbery

S.L.S. argues that the trial court could not have found him to have committed both 

robbery and grand theft because theft is a lesser included offense of robbery. The 

Attorney General concedes, and we find the concession well-taken. 

We review de novo the claim that theft is a lesser included offense of robbery 

because the question is a matter of law. (People v. Johnson (2007) 150 Cal.App.4th 

1467, 1474.) 
10

“There are two tests to determine if an offense is a lesser included offense of 

another: ‘(1) the greater statutory offense cannot be committed without committing the 

lesser because all of the elements of the lesser offense are included in the elements of the 

greater; or (2) . . . the charging allegations of the accusatory pleading include language 

describing it in such a way that if committed in that manner the lesser offense must 

necessarily be committed. [Citations.]’ ” (People v. Moses (1996) 43 Cal.App.4th 462, 

466.) Here we apply the former test.

All elements of theft are included in robbery, except that robbery requires the 

victim to be subject to force or fear. (People v. Burns (2009) 172 Cal.App.4th 1251, 

1256.) Since robbery is an aggravated manner of theft and includes the elements of theft, 

“it is well settled that theft is a necessarily included offense of robbery,” whether the theft 

is charged as grand theft or petty theft. (People v. Ortega (1998) 19 Cal.4th 686, 694-

697, overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224.) Therefore, 

when a defendant is found culpable for both theft and robbery, the theft conviction may 

be reversed if both convictions were predicated on the same conduct. (Ibid.)

Here, count 1 alleged that the robbery was based on the taking of the “personal 

property” of Mike’s Cameras and count 2 stated that the grand theft allegation was based 

on the taking of “cameras and associated equipment.” The evidence supporting both 

allegations involved the same property taken during the same course of conduct. 

Accordingly, grand theft is a lesser included offense of robbery, and the sustained

allegation must be reversed. 

C. The Probation Condition Authorizing the Probation Officer to Place S.L.S. 

Out of the Home to “Meet Family Crises” Is Unconstitutionally Vague

S.L.S. argues that the probation condition which authorizes the probation officer to 

remove him from his home to “meet family crises” is unconstitutionally vague. The 

Attorney General concedes that the condition lacks specificity. We accept the 

concession. 
11

We generally review the court’s imposition of a probation condition for an abuse 

of discretion. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, we apply 

the de novo standard of review for constitutional challenges to probation conditions. (Id.

at p. 1143.) We may review a challenge to the constitutionality of a probation condition

absent any objection below if the issue may be resolved as a matter of law without 

reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889

(Sheena K.).) 

A trial court is given broad discretion in setting forth probation conditions by 

balancing the interests of both the defendant and public welfare. (People v. Hall (2017) 2 

Cal.5th 494, 502 (Hall).) “However, a probation condition may not be enforced if it 

‘forbids or requires the doing of an act in terms so vague’ that people of ‘common 

intelligence must necessarily guess at its meaning and differ as to its application.’ ” 

(Ibid.; accord, Sheena K., supra, 40 Cal.4th at p. 890.) To withstand a “void-forvagueness” challenge, “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.” (Hall, supra, at p. 500.)

The record shows S.L.S. had been subject to detrimental conditions at home, 

including lack of supervision and physical and emotional abuse. The juvenile court 

authorized the probation officer to remove S.L.S. from his home for up to 30 days to 

“meet family crises.” However, the juvenile court did not define what would constitute a 

“family crisis” sufficient to warrant removing S.L.S. from the home. As S.L.S. notes, 

“crisis” is subject to numerous interpretations.

After a careful review of the record, we are left to speculate what the juvenile 

court meant by this probation condition. We agree with the parties that the probation 

condition is not “sufficiently definite” and could not properly inform S.L.S. what 

conditions are required or prohibited. Nor could a court determine with a sufficient 

degree of certainty whether the probation condition was violated. Accordingly, we will 
12

remand to the juvenile court to clarify the term “meet family crises” and to identify the 

conditions that would permit the probation officer to remove S.L.S. from his home.

III. DISPOSITION

The May 18, 2022 order sustaining the grand theft allegation is reversed. The 

matter is remanded to the juvenile court to modify or delete probation condition

Number 13 consistent with this opinion.
_______________________________

 Greenwood, P. J.

WE CONCUR:

_______________________________

 Grover, J. 

_______________________________

 Lie, J. 

H050182

People v. S.L.S.