1

Filed 8/26/16 In re Trevor G. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION ONE

In re TREVOR G., a Person Coming Under 

the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

TREVOR G.,

Defendant and Appellant.

 A146296

 (San Francisco County

 Super. Ct. No. JW156064)

Trevor G. appeals from a juvenile court order declaring him a ward of the court 

and committing him to the probation department for out-of-home placement after the 

court found that he committed a misdemeanor count of grand theft. He claims, and the 

Attorney General concedes, that (1) the offense must be reduced to petty theft because 

insufficient evidence was presented that the property taken was worth more than $950;

(2) the maximum term of confinement is six months, not one year; and (3) the court 

failed to calculate custody credits as required. We agree with the parties and therefore 

modify the offense to petty theft, modify the maximum term of confinement to six 

months, and remand for calculation of custody credits.

Trevor G. also contends that three of his probation conditions are 

unconstitutionally vague and overbroad. We describe these conditions in more detail 

below, but they generally forbid him from contacting the victims, possessing weapons, 
2

and using or possessing drugs. We reject his contention that these conditions must be 

modified to expressly forbid him from knowingly violating them, but we modify the 

latter two conditions in other minor respects to narrow their scope.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

In June 2015, Trevor G., who was then 14 years old, stole a cell phone from A.G., 

a female rider on a MUNI bus. Trevor G. ran from the bus, and A.G. followed but was 

unable to catch him. She eventually replaced her stolen cell phone with a new one at a 

cost of $750. A San Francisco police officer later recognized Trevor G. from a video 

recording of the theft and a crime bulletin that were circulated in the police department. 

After Trevor G. was arrested, he identified himself in a photograph in the bulletin.

The San Francisco District Attorney’s Office filed a petition under Welfare and 

Institutions Code section 602, subdivision (a) seeking to have Trevor G. declared a ward 

of the court. The petition alleged one misdemeanor count of grand theft.1 Trevor G. was 

also the subject of two other wardship petitions based on his suspected involvement in 

stealing cell phones, one alleging a felony count of attempted second degree robbery of 

A.A. and one alleging a felony count of second degree robbery of S.M.

2 Ultimately, the 

attempted-robbery petition involving A.A. was dismissed based on witness unavailability 

and the grand-theft and robbery petitions were consolidated.

After a contested jurisdictional hearing, the juvenile court found the grand-theft 

allegation involving A.G. true and the robbery allegation involving S.M. not true. In the

dispositional order, the court declared Trevor G. a ward of the court and committed him 

to the probation department for out-of-home placement. The court found his maximum 

term of confinement was one year, but it did not calculate his custody credits.

 

1

The grand-theft allegation was made under Penal Code section 487, subdivision (c). All 

further statutory references are to the Penal Code unless otherwise noted.

2

These allegations were made under sections 211 (second degree robbery) and 664 

(attempt).
3

The juvenile court also imposed several probation conditions, including the three

at issue. The first challenged condition was orally imposed by the court as follows: 

“[Y]ou are ordered to stay away from, have no contact with [A.A., A.G., and S.M.]. That 

means you are to have no contact or communication whatsoever. Can’t go to their 

homes. They can’t come to yours. You are not to communicate in person, telephone, 

voicemail, e-mail, social media. That includes but [is] not limited to Facebook, 

Instagram, Twitter, not to communicate via personal letter, sending message[s] through 

someone else. [¶] If you accidentally run into any of these three people in a public place, 

you go in the other direction because if you don’t you will be in violation of a court order 

and may be returned to custody.”3

The second challenged condition forbids Trevor G. from possessing weapons. 

The orally imposed version of this condition directs him “not to possess weapons of any 

kind, not to possess any dangerous or deadly weapons which means you’re not to possess 

firearms, ammunition, bullets, or other dangerous and/or deadly weapons. You are not to 

possess anything that looks like a weapon, not to possess anything that can be used as a 

weapon, not to possess anything that can be considered by someone else to be a weapon. 

You are not to possess anything you intend to use as a weapon, that includes real, fake, 

toys, replica, look[]alike weapons. Court states dangerous or deadly weapons[,] other 

examples are knives, clubs, brass knuckles, metal knuckles. Not to possess anything of 

that nature.”

Finally, the third challenged condition forbids Trevor G. from using, possessing, 

or selling drugs. The orally imposed version of this condition requires him “not to use, 

posses[s] or sell narcotics, controlled substances, alcohol, marijuana, or other intoxicants. 

 

3

The oral pronouncement and the written no-contact condition are slightly different. 

Given that Trevor G. did not sign the written order and the juvenile court did not refer to 

it in imposing probation conditions, we conclude that the oral pronouncement of this 

condition controls. We also conclude that the oral pronouncements of the other two 

challenged conditions control. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 

1346.)
4

That means no drugs without a lawful prescription from a doctor.” Trevor G. did not 

object to any of the conditions imposed.

II.

DISCUSSION

A. Insufficient Evidence Supports the Finding that Trevor G. Committed 

Grand Theft.

Trevor G. argues that the finding that he committed grand theft must be reversed 

because no evidence was presented that the value of A.G.’s cell phone exceeded $950. 

The Attorney General concedes that the finding lacked substantial evidence. We accept 

this concession and conclude that the offense must be reduced to petty theft.

We review a juvenile court’s jurisdictional finding for substantial evidence. (In re 

Gary H. (2016) 244 Cal.App.4th 1463, 1477.) In doing so, “ ‘ “ ‘we review the entire 

record in the light most favorable to the judgment to determine whether it contains 

substantial evidence—that is, evidence that is reasonable, credible, and of solid value—

from which a reasonable trier of fact’ . . . could have found the essential elements of the

crime beyond a reasonable doubt.” ’ ” (Ibid.)

Section 487, subdivision (c), the provision under which Trevor G. was charged, 

provides that “[g]rand theft is theft committed . . .[¶] . . . [¶] . . . [w]hen the property is 

taken from the person of another.” Subdivision (c), unlike other subdivisions of section 

487, does not specify a minimum value of the property taken. Section 490.2, however, 

which was added by Proposition 47 in November 2014, provides: “Notwithstanding 

Section 487 or any other provision of law defining grand theft, obtaining any property by 

theft where the value of the . . . personal property taken does not exceed nine hundred 

fifty dollars ($950) shall be considered petty theft and shall be punished as a 

misdemeanor,” except in circumstances that are not present here. (§ 490.2, subd. (a); 

People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Thus, under section 490.2’s plain 

terms, no offense under any subsection of section 487 constitutes grand theft unless the 

property’s value exceeds $950. Here, A.G.’s testimony that it cost $750 to replace her 
5

cell phone was the only evidence of the phone’s value, and the finding that Trevor G. 

committed grand theft therefore lacked substantial evidence.

We agree with the parties’ contention that the appropriate remedy is to modify the 

juvenile court’s order to reflect a finding that Trevor G. committed petty theft. Where the 

evidence is “insufficient to establish that the minor committed the charged offense” but 

“adequate to prove a lesser . . . included offense,” a reviewing court may modify the 

jurisdictional finding to reflect that the minor committed the lesser offense. (In re 

Arthur N. (1976) 16 Cal.3d 226, 233-234, superseded by statute on other grounds as 

stated in John L. v. Superior Court (2004) 33 Cal.4th 158, 185-186.) Petty theft is a 

lesser included offense of grand theft. (§§ 487, 490.2, subd. (a); see People v. Shoaff 

(1993) 16 Cal.App.4th 1112, 1116.) As a result, we modify the order to reflect that 

Trevor G. committed petty theft.

B. The Maximum Term of Confinement for Petty Theft Is Six Months.

Trevor G. next contends that the juvenile court erred by specifying that the 

maximum term of confinement was one year instead of six months. We accept the 

Attorney General’s concession that, given the reduction of the offense to petty theft, the 

maximum term of confinement must be reduced to six months.

“If a minor is removed from the physical custody of his or her parent or guardian 

as the result of an order of wardship” under Welfare and Institutions Code section 602, as 

was the case here, “the order shall specify that the minor may not be held in physical 

confinement for a period in excess of the maximum term of imprisonment which could be 

imposed upon an adult convicted of the [same] offense.” (Welf. & Inst. Code, § 726, 

subd. (d)(1).) The punishment for petty theft is a “fine not exceeding one thousand 

dollars ($1,000), . . . imprisonment in the county jail not exceeding six months, or both.” 

(§ 490.) Therefore, the maximum term of confinement must be modified to six months.

C. The Juvenile Court Must Calculate Trevor G.’s Custody Credits.

Trevor G. also claims that “[t]he juvenile court erred by failing to calculate [his] 

custody credits at the dispositional hearing.” The Attorney General concedes that the 

matter must be remanded for calculation of his custody credits, and we agree.
6

“[A] minor is entitled to credit against his or her maximum term of confinement 

for the time spent in custody before the disposition hearing” (In re Emilio C. (2004) 

116 Cal.App.4th 1058, 1067), as well as for the time spent in custody between that 

hearing and transfer to an out-of-home placement. (In re J.M. (2009) 170 Cal.App.4th 

1253, 1256.) It is the juvenile court’s nondelegable duty to perform this calculation. 

(Emilio C., at p. 1067.) Here, the parties agree that the juvenile court did not calculate 

custody credits even though Trevor G. spent over 90 days in confinement before the 

dispositional hearing and an unknown number of days in confinement between that 

hearing and his transfer to his placement. We therefore remand the matter for the court to 

perform the required calculation.

D. The Challenged Conditions Are Constitutional Without an Express Scienter

Requirement, but the Weapon- and Drug-related Conditions Are Modified 

to Be Narrower.

Trevor G. contends that the no-contact, weapon-related, and drug-related 

conditions are unconstitutionally vague and overbroad partly because they lack the

express requirement that he “knowingly” engage in the prohibited conduct. We reject 

this contention, but we conclude that the latter two conditions require minor

modifications for other reasons.

1. General legal standards.

We begin by discussing the legal standards governing claims that minors’

probation conditions are unconstitutionally vague or overbroad. A juvenile court “may 

impose and require any and all reasonable [probation] 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 court 

has ‘broad discretion to fashion conditions of probation’ [citation], although ‘every 

juvenile probation condition must be made to fit the circumstances and the minor.’ ” (In 

re P.O. (2016) 246 Cal.App.4th 288, 293-294.) “ ‘ “ ‘ “[A] condition . . . that would be 

unconstitutional or otherwise improper for an adult probationer may be 

permissible” ’ ” ’ ” for a minor because minors “ ‘are deemed to be more in need of 
7

guidance and supervision than adults, and because a minor’s constitutional rights are 

more circumscribed.’ ” (Id. at p. 297.)

Overbreadth and vagueness are related but distinct concepts. “[T]he underpinning 

of a vagueness challenge is the due process concept of ‘fair warning,’ ” which 

encompasses the “ ‘concepts of preventing arbitrary law enforcement and providing 

adequate notice to potential offenders.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890

(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.) An overbreadth challenge, on the other hand, arises from the 

requirement that “[w]hen a probation condition imposes limitations on a person’s 

constitutional rights, it ‘ “must closely tailor those limitations to the purpose of the 

condition” ’ . . . . [Citation.] ‘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 [probationer]’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 P.O., supra, 246 Cal.App.4th at p. 297.) We review de novo 

claims that a probation condition is vague or overbroad. (Sheena K., at p. 888.)

2. Trevor G. did not forfeit his claims by failing to object below.

The Attorney General argues that Trevor G. forfeited his challenges by failing to 

object below. Sheena K. held that a claim that a probation condition is facially vague or 

overbroad, errors that are “capable of correction without reference to the particular 

sentencing record developed in the [lower] court,” is not forfeited by the failure to object

below. (Sheena K., supra, 40 Cal.4th at pp. 888-889.) Sheena K. cautioned, however, 

that its “conclusion does not apply in every case in which a probation condition is 

challenged on a constitutional ground” because some such challenges may depend on the 

case’s particular factual circumstances. (Id. at p. 889.)

The Attorney General argues that Trevor G. has not raised “a facial challenge . . . 

like the one in Sheena K.[, supra, 40 Cal.4th 875]” that can be corrected without 
8

reference to the sentencing record because the juvenile court orally clarified the written 

conditions. We agree with Trevor G. that if such clarifying comments were sufficient to 

bring a claim outside of Sheena K.’s holding, “essentially all claims” that a probation 

condition is unconstitutional would be subject to forfeiture. Instead, we read Sheena K.

to distinguish between claims that a condition is unconstitutional as written, which 

present a pure question of law, and claims that a condition is unconstitutional as applied 

to the probationer, which require development of additional facts. Trevor G.’s claims fall 

into the former category, and he therefore did not forfeit them by failing to object below.

3. The no-contact condition is not vague or overbroad.

Trevor G. claims that the no-contact condition “is vague and overbroad because it 

lacks an explicit knowledge requirement,” and he contends that it must be modified to 

provide that he not “knowingly” contact the three victims.4 He also claims that the 

condition improperly holds him responsible for the conduct of others. We disagree on 

both counts.

Trevor G. argues that the no-contact condition is vague and overbroad because the 

victims “may not be readily identifiable to [him] due to the brief nature of their contact 

and the possibility of changes in appearance,” and it is unclear whether the condition 

prohibits unintentional contact. An express requirement that he “knowingly” have 

contact with the victims is unnecessary, however, because “[a] court may not revoke 

probation unless the evidence supports ‘a conclusion [that] the probationer’s conduct 

constituted a willful violation of the terms and conditions of probation’ ”—that is, an 

intentional violation that was not due to circumstances beyond the probationer’s control. 

(People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) As the Sixth District Court of 

Appeal has explained, “[n]o reasonable law enforcement officer or judge can expect 

probationers to know where their victims are at all times,” and a no-contact condition 

“does not require [a] defendant to stay away from all locations where the victim might 

 

4

The issue whether no-contact probation conditions require an express scienter

requirement is currently pending before our state Supreme Court. (In re A.S. (2014) 

227 Cal.App.4th 400, review granted Sept. 24, 2014, S220280.)
9

conceivably be” but only to leave “when [he or she] knows or learns of a victim’s 

presence.” (People v. Rodriguez (2013) 222 Cal.App.4th 578, 594.)

While Rodriguez ordered the no-contact condition at issue in that case modified, it 

did so because there were two victims in the case and the condition failed to identify the 

name of the one victim to whom it applied. (People v. Rodriguez, supra, 

222 Cal.App.4th at pp. 594-595.) Rodriguez does not support Trevor G.’s position

because here the victims are identified by name. Similarly unpersuasive is Trevor G.’s 

citation to People v. Petty (2013) 213 Cal.App.4th 1410, which determined, without 

analysis, that “knowingly” should be inserted into a stay-away order.5 (Id. at pp. 1424-

1425.) 

Finally, Trevor G. claims that the portion of the no-contact condition stating that 

the victims “ ‘can’t come to’ ” his home must be stricken “to the extent the condition is 

intended to hold [him] responsible for the victims’ conduct.” We disagree that the 

condition purports to do so. Even if one of the victims were to come to his home, the 

requirement that any probation violation be willful would prevent him from being found 

in violation of probation unless he allowed the contact to continue. As a result, the 

challenged condition requires no modification.

4. The weapon-related condition does not require modification except 

to the extent it covers items that other people could consider 

weapons.

Trevor G. claims that the weapon-related condition is vague and overbroad 

because it lacks an explicit scienter requirement, “fails to adequately identify the objects 

that may be encompassed,” and includes “innocuous objects used in everyday life for

 

5

Trevor G. also states that the no-contact order is vague because “probation officers 

could have differing views of what it means to have ‘no contact’ with or ‘stay away’ from 

the [listed] individuals.” He suggests that an express scienter requirement would address 

this concern, but he does not develop the argument further. We therefore do not consider 

whether the phrases he identifies are vague for any reason other than the absence of such 

a requirement.
10

innocent purposes.” We disagree, except we modify the condition to remove the 

reference to items that other people could consider to be weapons.

Initially, contrary to Trevor G.’s interpretation, we interpret the weapon-related 

condition to cover only dangerous or deadly weapons and their replicas. When 

interpreting a probation condition, we rely on “context and common sense” (In re 

Ramon M. (2009) 178 Cal.App.4th 665, 677) and give the condition “ ‘the meaning that 

would appear to a reasonable, objective reader.’ ” (People v. Olguin (2008) 45 Cal.4th 

375, 382.) Although the juvenile court did not use the modifying phrase “dangerous or 

deadly” every time it referred to weapons, it is clear from the court’s multiple uses of that 

phrase, as well as the examples the court provided, that the condition encompasses only 

dangerous or deadly weapons and their replicas. (See also In re Kevin F. (2016) 

239 Cal.App.4th 351, 360 [“the qualifier ‘dangerous or deadly’ inheres in the commonly 

understood meaning of the term ‘weapon’ ”].)

“Dangerous 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 are 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. (In re R.P. (2009) 

176 Cal.App.4th 562, 565, 567-568, italics omitted.) This construction of the weaponrelated condition addresses a primary concern that Trevor G. raises: that he could be 

“arrest[ed] . . . for possessing an object that could conceivably be used as a weapon,”

such as “[a] pencil, baseball bat, dinner knife, letter opener, hammer, house key, or a 

bottle of soda,” even if he does not intend to use it as a deadly weapon. We find it 

unnecessary to modify the condition to make an intent requirement explicit, because it is 

part of the definition of “dangerous or deadly weapon.” (See Sheena K., supra, 

40 Cal.4th at p. 890 [probation condition not vague so long as it establishes with 

“ ‘ “reasonable specificity” ’ ” what is prohibited], italics in original.) As a result, we 

decline to follow In re Kevin F., supra, 239 Cal.App.4th at page 366 to the extent it 

added an express intent requirement to the challenged condition.
11

We also reject Trevor G.’s position that the weapon-related condition must be 

modified to include an explicit scienter requirement so that he would be barred from 

“knowingly” possessing any dangerous or deadly weapons or their replicas.6 As we have 

said, a probation violation cannot be premised on the probationer’s unwitting 

noncompliance with his or her probation conditions. (People v. Cervantes, supra,

175 Cal.App.4th at p. 295.) Again, we find it unnecessary to modify the condition to 

make this requirement explicit. (See People v. Contreras (2015) 237 Cal.App.4th 868, 

887; People v. Rodriguez, supra, 222 Cal.App.4th at p. 591; People v. Moore (2012) 

211 Cal.App.4th 1179, 1185.) Thus, we do not follow In re Kevin F., supra, 

239 Cal.App.4th at pages 361-362 on this point either.

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., People v. Moses (2011) 199 Cal.App.4th 374, 377

[sexually explicit materials]; People v. Leon (2010) 181 Cal.App.4th 943, 949-951 [gang 

paraphernalia]; People v. Freitas (2009) 179 Cal.App.4th 747, 751 [stolen property].) 

Here, Trevor G. 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.

5. The drug-related condition does not require modification except 

to the extent it covers over-the-counter medications.

Finally, Trevor G. contends that the drug-related condition is vague and 

overbroad because it insufficiently limits the substances included and lacks an explicit 

 

6 A similar issue is currently pending before our state Supreme Court. (People v. Hall

(2015) 236 Cal.App.4th 1124, review granted Sept. 9, 2015, S227193.)
12

scienter requirement.

7 We again conclude that the term “knowingly” is not 

constitutionally required, but we agree that the condition must be modified to specify that 

it does not prohibit the use, possession, or sale of over-the-counter medications.

Trevor G. contends that the drug-related condition is overbroad because it includes 

over-the-counter medications and therefore infringes on his right to privacy, among other 

rights. The Attorney General responds that “[r]ead in context,” the juvenile court’s 

statement that the condition applies to “ ‘drugs without a lawful prescription’ would 

reasonably be understood to prohibit the possession or use of prescription drugs or other 

controlled substances without a valid prescription.” We agree with Trevor G. that, as 

currently worded, the condition covers over-the-counter medications. It prohibits the 

possession, use, or sale of “drugs without a lawful prescription from a doctor,” and overthe-counter medications are drugs that are not prescribed. Because the Attorney General 

tacitly agrees that the condition is not meant to include such substances, we modify the 

condition to reflect the parties’ understanding.

We will not, however, modify the challenged condition to require that Trevor G. 

not “knowingly” use, possess, or sell the covered substances, as he claims is required to 

render the condition constitutional. Contrary to his position, the possibility that he 

“might unknowingly eat a liqueur-filled chocolate or a baked good that has been laced 

with marijuana or ingest a beverage that has been spiked with alcohol” would not expose 

him to punishment because he cannot be found in violation of probation for unwitting 

use, possession, or sale of the covered substances. (See People v. Cervantes, supra, 

175 Cal.App.4th at p. 295.) And based on the same authorities already cited, we 

conclude that it is unnecessary to include an express scienter requirement to emphasize 

this.

 

7 Because we have concluded that the orally pronounced version of the drug-related 

condition controls, we need not consider Trevor G.’s argument that the condition is also 

vague based on the written version’s redundant directive that Trevor G. “[n]ot possess or 

have in [his] possession” the covered substances.
13

III.

DISPOSITION

The dispositional order is modified to reflect a finding that Trevor N. committed 

petty theft under section 490.2, not grand theft under section 487, subdivision (c). The 

order is also modified to reflect that the maximum term of confinement for petty theft is 

six months.

The weapon-related condition in the dispositional order is modified to read: “The 

minor shall . . . [¶] [n]ot possess any dangerous or deadly weapons, including firearms, 

ammunition, bullets, knives, clubs, brass knuckles, or metal knuckles, or any replicas of 

such weapons.”

The drug-related condition in the dispositional order is modified to read: “The 

minor shall . . . [¶] [n]ot use, possess or sell any illegal drugs or intoxicants, including 

marijuana, prescribed substances without a lawful prescription from a doctor, or alcohol.”

The matter is remanded to the juvenile court for a calculation of custody credits. 

As modified, the dispositional order is otherwise affirmed.
14

_________________________

Humes, P.J.

We concur:

_________________________

Margulies, J.

_________________________

Dondero, J.