In re Brandon C. CA1/2

Filed 3/19/14 In re Brandon C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

In re BRANDON C., a Person Coming
Under the Juvenile Court Law.
A138960
THE PEOPLE,
(Alameda County
Plaintiff and Respondent, Super. Ct. No. SJ13020183)
v.
ORDER MODIFYING OPINION AND
BRANDON C., DENYING REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on February 18, 2014, be modified as
follows:

1. On page 10, following the end of the last paragraph on page 9, insert the
following one and one-half pages of discussion:

Appellant relies heavily upon In re Edwayne V. (1987) 197 Cal.App.3d 171,
176, which held that the juvenile court’s refusal to release the minor from custody
when the jurisdictional hearing could not be commenced within the 15-day period
required dismissal of the petition. As in the present case, the minor’s counsel had
objected to the continuance beyond the required time period, the court had denied

1
the minor’s request for release, and the minor’s case had proceeded to jurisdiction
and disposition. The opinion in Edwayne V. does not discuss prejudice, and
appellant views it as authority for the proposition that dismissal is required without
any requirement of showing prejudice in these circumstances.

As Edwayne V. did not discuss its reasons for departing from the fundamental
state constitutional rule that reversal on appeal requires a showing of prejudice
(People v. Martinez, supra, 22 Cal.4th at p. 769; People v. Johnson, supra, 26 Cal.3d
at p. 575; In re Chuong D., supra, 135 Cal.App.4th at p. 1311), we decline to follow it
in this respect.
Appellant emphasizes that, as discussed in In re Robin M. (1978) 21 Cal.3d
337, 342-343, the Legislature’s overhaul of the Juvenile Court Law in 1961
“substantially followed the recommendations and proposals of a special study
commission on juvenile justice,” which “found that one of the ‘major problems’
with California’s Juvenile Court Law was the ‘excessive and unwarranted detention
of children in the state.’ ” (Robin M., at pp. 342-343, quoting Report of the
Governor's Special Study Commission on Juvenile Justice, pt. I—
Recommendations for Changes in California’s Juvenile Court Law (1960).) The
statutory time limits on juvenile hearings and detentions followed the Commission’s
recommendation that maximum time limits be set forth in the law “[i]n order to
‘minimize the length of detention.’ ” (Robin M., at p. 343.)
In keeping with this concern to avoid prolonged detention of juveniles, our
courts have repeatedly held that, absent waiver, a minor must be discharged from
custody if his or her jurisdiction hearing is not held within 15 judicial days after a
detention hearing. (In re Robin M., supra, 21 Cal.3d at p. 347; In re Kerry K. (2006)
139 Cal.App.4th 1, 5-6; A.A. v. Superior Court (2003) 115 Cal.App.4th 1, 6.) To our
knowledge, most of the challenges to prolonged detention in this context have been
by writ petitions (as, indeed, was appellant’s original challenge). (In re Robin M.,
supra, 21 Cal.3d 337; In re Kerry K., supra, 139 Cal.App.4th 1; A.A. v. Superior
Court, supra, 115 Cal.App.4th 1.) While finding error in the refusal to release the
2
minor, these cases denied writ relief where, subsequent to the filing of the writ
petition, the minor had been released (In re Kerry K, at pp. 4, 7) or the juvenile
petition had been sustained (In re Robin M., at pp. 341 & fn. 6, 348.) None of these
cases suggest that where a juvenile case has proceeded to disposition, it must be
reversed on appeal due to pre-adjudication error in failing to release the minor
from custody in violation of statutory time limits for holding the jurisdictional
hearing.
2. Following this new addition, the opinion shall continue as originally issued,
commencing with the paragraph that reads, “Here, appellant has not attempted to
demonstrate prejudice, relying upon his contention that he is not required to do so. We
are aware of no prejudice resulting from the delay in proceedgins from March 11 to
March 29.”
3. At the end of the paragraph just quoted in paragraph 2 of this Order, the
following new footnote should be added, which will be numbered footnote 1:
1
In a petition for rehearing, appellant urges that the parties have not had the
opportunity to brief the issue of whether prejudice must be shown in the
circumstances presented here. We are not persuaded. The rule that a judgment
will not be reversed on appeal absent a demonstration of prejudice is too
fundamental for appellant to avoid by relying upon a single case that does not
directly address the issue and has never been cited for the proposition that prejudice
is not required.”

There is no change in the judgment.
Appellant’s petition for rehearing is denied.

Dated: _________________

_______________________________
Kline, P.J.

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Filed 2/18/14 (unmodified version)
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 TWO

In re BRANDON C., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent,
v. A138960
BRANDON C., (Alameda County
Defendant and Appellant. Super. Ct. No. SJ13020183)

Brandon C. appeals from juvenile court orders finding that he committed a
robbery and received stolen property, and placing him on probation. He contends the
juvenile court was required to dismiss the petition or release him from custody because
the jurisdictional hearing was not held within the time limit prescribed by statute; the true
finding on the allegation of receiving stolen property must be reversed, and the maximum
term of confinement adjusted, because the allegation was based on the same property as
the theft allegations; the probation condition requiring appellant to be “of good
citizenship” must be stricken as unconstitutionally vague; and the probation condition
forbidding appellant from being in the company of anyone possessing dangerous or
deadly weapons must be amended to include a knowledge requirement. We shall order
certain amendments to the juvenile court’s orders and, as so amended, affirm those
orders.

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 STATEMENT OF THE CASE
On January 7, 2013, the Alameda County District Attorney filed a petition under
Welfare and Institutions Code section 602, subdivision (a), alleging that appellant, then
17 years old, committed a robbery (Pen. Code, § 211) and received stolen property (Pen.
Code, § 496). After a contested jurisdictional hearing on April 29, the court found both
allegations true and found the maximum period appellant could be confined for these
offenses was five years eight months. On June 6, the court adjudged appellant a ward of
the court and placed him under the supervision of the probation officer, to reside in his
mother’s home.
Appellant filed a timely notice of appeal on June 13, 2013.
STATEMENT OF FACTS
At about 9:45 p.m. on December 30, 2012, Goncalo Mendes was walking along
Milvia Street in Berkeley, heading home from a cafe where he had been doing some
work. He heard steps behind him and then was pulled to the ground with his neck in a
choke hold, his back and head hitting the ground. He was pulled a short distance into an
alley or darker area and, as he struggled, the person who had pulled him down kept him
on the ground, used his hands to try to cover Mendes’s face and eyes, and hit Mendes in
the face once or twice. Mendes and the assailant were face-to-face and Mendes was able
to glimpse the assailant. A second person went through Mendes’s pockets and clothing.
Mendes tried to fight back, punching at the person who had taken him down and biting
his thumb, and pulling on his backpack as the other assailant tried to take it. The
backpack was the most valuable thing Mendes had with him because all his work was in
it. Mendes said, “ ‘I’m a student, I have nothing with me,’ ” and the person going
through his pockets said, “ ‘We don’t give a fuck. Hand us everything you have.’ ”
Mendes handed him his cell phone, a white Sony Ericsson smart phone, hoping the
assailants would leave, but they continued trying to take his possessions. Mendes’s
backpack broke free, the person on his left took it, and the two assailants walked away.
Mendes started to follow them but soon stopped and ran home, where he told his
landlady what had happened. She dialed 911 for him.

2
 Mendes described both his assailants as “medium sized” black males in their
twenties, wearing dark pants and fluffy black jackets. He gave a description to the 911
operator and then, briefly, to the officer who arrived at his home. Police Officer Rochell
Bledsoe, the responding officer, testified that Mendes described the incident and the
perpetrators, describing one of the assailants as approximately six feet tall and the other
as about five feet eight or nine inches, and saying that he had bitten one of the men’s
fingers. Bledsoe testified that Mendes’s face was red and swollen; it appeared he had
been punched several times.
At about 9:58 p.m., Police Officer Benjamin Phelps received a call regarding a
robbery around Milvia and Virginia Streets and began driving around the area searching
for suspects matching the description Mendes had given. Seeing a person run across the
street at Hearst and McGee, he drove closer and saw two younger black males in dark
clothing walking close to each other on the south side of the street. Phelps drove near,
rolled down his window, illuminated the area with his spotlight and asked if he could
speak with the two. The one in back, whom Phelps identified as appellant, stopped; the
one in front, the taller of the two, walked a few paces and then stopped. Noticing that
appellant was sweating and out of breath, Phelps asked where he was coming from and
appellant said he had been playing basketball in the park across the street. The lights on
the court were not on and Phelps did not recall there being any people on the court. The
officer called the second person over and noticed that he was also perspiring and out of
breath. Phelps examined the suspects’ fingers and saw that one of appellant’s pointer
fingers had some “discoloration and indentation.” Police Officer Miguel Salazar, who
arrived at the location of the detention, searched appellant and recovered a black
Samsung cell phone, and Apple Ipod, a white cell phone and a set of keys. The items on
the white cell phone appeared to be in Portuguese.
Officer Bledsoe brought Mendes to the location where appellant had been
detained. Bledsoe testified that Mendes was shown first one suspect and then the other,
and stated that they appeared to be the people involved in the incident based on size,
height, weight and clothing. Mendes testified that he recognized the two as fitting the

3
description he had given of clothing, size, age, gender and ethnicity; he did not more
specifically recognize their faces. A few minutes after this identification, the police
showed Mendes a gray Toshiba laptop and a white Sony Ericsson smart phone they had
recovered, and Mendes identified the items as his. The backpack was never returned to
Mendes.
Defense
The defense presented Dr. Robert Shomer as an expert on eyewitness
identification. He testified that eyewitness identification is very unreliable even under
the best circumstances, resulting in more erroneous convictions than any other single
factor. The major basis for evaluating the trustworthiness of an identification is the
specificity of the initial description given by the witness, and “vague general
descriptions” are associated with erroneous identifications because they fit so many
people. High stress leads to “significantly poor” eyewitness identification; other factors
that lead to less reliable identification include an incident involving more than one
perpetrator, physical contact or fear that the perpetrator is armed, cross-racial
identification, and suggestive procedures in the identification. Field show-ups are much
more likely to result in erroneous identifications than photo arrays; because the witness is
still in a heightened emotional state, the witness is more susceptible to the suggestion
inherent in being shown a person the police have chosen as a suspect. Presented with a
hypothetical based on the facts of this case, Shomer testified that the factors bearing on
accuracy of the identification would be the sudden, highly stressful attack by two
individuals, the vague and general description of the perpetrators, and use of an
inherently suggestive identification procedure while the witness was still highly
emotionally aroused.
Appellant’s defense focused on challenging Mendes’s identification of appellant,
drawing on Shomer’s testimony and suggesting a different person could have been
responsible for the attack and robbery, perhaps the one Phelps saw running across the
street before he came upon appellant and his companion. Defense counsel argued that
appellant could have simply found Mendes’s cell phone on the ground and picked it up,

4
that there was no evidence appellant had any bruises or cuts consistent with having been
in a fist fight, and that the photographic evidence did not indicate appellant had been
bitten.
DISCUSSION
I.
Appellant contends that the juvenile court’s orders must be reversed because the
jurisdictional hearing was not held within the time limit specified by statute and, once
that limit was exceeded, the court was required to dismiss the petition or release appellant
from custody. When a minor is detained in custody at the time a petition is filed, the
jurisdictional hearing must begin within 15 judicial days of the order directing detention.
(Welf. & Inst. Code, § 657, subd. (a)(1); Cal. Rules of Court, rule 5.774(b); In re
Maurice E. (2005) 132 Cal.App.4th 474, 477.) A continuance may be granted “only
upon a showing of good cause and only for that period of time shown to be necessary by
the moving party at the hearing on the motion.” (Welf. & Inst. Code, § 682, subd. (b);
rule 5.776(a).) Absent a continuance under rule 5.776, when a jurisdiction hearing is not
begun within this time limit, the court must order the petition dismissed. (Rule 5.774(d).)
Another petition based on the same allegations may be filed, but the child may not be
detained. (Ibid.)
The petition in the present case was filed on January 7, 2013. on January 18,
counsel was appointed for appellant and, at the request of counsel, the case was set for
pretrial on January 31. Appellant waived time. He was placed on GPS (global
positioning system) supervision in his mother’s home.
On January 31, appellant was remanded into custody and withdrew his time
waiver. Under the rules described above, the jurisdiction hearing was required to begin
within 15 court days, by February 21. The pretrial hearing was continued to February 7,
and the jurisdiction hearing set for February 21.
On February 7, defense counsel asked the court to give appellant a second chance
on GPS monitoring and the court declined the request. The pretrial hearing was

5
continued to February 19, then continued to February 20 due to the illness of defense
counsel and her family.
On February 21, the prosecutor was ready to proceed with the jurisdiction hearing
but defense counsel was not: She explained that the prosecutor had provided her the day
before with a number of recordings, including Mendes’s call to 911, which raised new
issues she needed to explore. Appellant waived time until March 11, the new date set for
the jurisdiction hearing.
At a pretrial hearing on March 7, the prosecutor informed the court that Officer
Salazar would not be available on the date set for the jurisdiction hearing because he was
on paternity leave, his wife having given birth earlier than expected, but would be
available on April 4. The prosecutor was also waiting to hear whether a different officer
might be able to testify instead of Salazar. The prosecutor represented that appellant had
waived time, but defense counsel stated he had entered only a limited time waiver to
March 11. The court maintained the March 11 date for the jurisdictional hearing.
On March 11, at a hearing before a different judge, the prosecutor requested a
continuance because Officer Salazar was unavailable and no other officer was able to
testify regarding the search in which Mendes’s cell phone was found in appellant’s
pocket. The prosecutor explained that she had been ready to proceed with the jurisdiction
hearing on February 21, but the case was continued at the request of defense counsel,
over the prosecution’s objection and, that at the pretrial hearing, the court had declined to
continue the March 11 date in order to give the prosecutor time to look into finding
another officer to testify in Salazar’s place. The prosecutor asked for the hearing to be
set for March 28, the last date permissible under the statute if appellant were to “pull
time,” and stated that Salazar had indicated he might be able to return a few days before
his scheduled date of April 4. Defense counsel reiterated that appellant had not entered a
general time waiver but only a limited one, waiving time only until March 11. Counsel
argued there was no good cause for a continuance and, if the prosecution was not ready to
proceed, the court should dismiss the petition and release appellant. The prosecutor
responded that there was “no such thing as a limited time waiver” and that the officer’s

6
unavailability was an unforeseen circumstance constituting good cause to avoid
dismissal. The court agreed with the prosecutor on the issue of the limited time waiver
and continued the matter to March 28. Appellant withdrew his time waiver in light of the
court having found it to be a general one.
Appellant filed a petition for writ of mandate and request for stay, which this court
denied on March 26.
On March 28, the matter was again before the original juvenile court judge.
Summarizing an in-chambers discussion, the court noted that while the prosecution was
prepared to go forward with one witness, another witness was unavailable due to a
proceeding in another courtroom, and the court’s calendar was such that if not completed
that day, the case would have to be continued for a couple of weeks. Noting the parties’
dispute over appellant’s custody status and time waiver, the court expressed discomfort
over appellant remaining in custody if the case had to be continued for two weeks, as
well as a question whether the officer being “on vacation” was in fact good cause for
continuing the jurisdiction hearing over appellant’s objection. It further noted that
defense counsel had indicated she might not be ready to go forward that day for “personal
reasons.” Accordingly, over the prosecutor’s objection, the court released appellant on
GPS and set the hearing for April 29. Appellant waived time.
At the beginning of the jurisdiction hearing on April 29, in order to preserve the
record regarding the March 11 denial of appellant’s motion to dismiss, defense counsel
moved for dismissal of the petition for violation of appellant’s right to a speedy trial. The
motion was denied, the court stating it was a matter for the Court of Appeal.
What is at issue on this appeal is the propriety of the continuance from March 11
until March 28, when appellant was released from custody. This was the only
continuance that appellant did not request and was ordered over his objection. As
appellant points out, the court did not state that it was ordering this continuance upon a
finding of good cause but, rather, upon finding that appellant’s time waiver on
February 21 was a general one rather than a limited waiver until March 11.

7
 Appellant’s position is that because he entered a limited time waiver to March 11,
the court was required to either go forward with the jurisdiction hearing on that date or
order him released from custody. While the court could have ordered a continuance upon
a showing of good cause (§ 682, rule 5.776), appellant urges that no good cause was
established here and, moreover, the procedural requirements for a continuance based on
good cause were not met (§ 682, subd. (a), (b); rule 5.776(a)). Finally, he maintains that
because he sought appellate review of the court’s order before the jurisdiction hearing
was held by means of a petition for writ of mandate and immediate stay, he is not
required to show prejudice in order to obtain relief.
This last point is dispositive. While a speedy trial claim made before trial does not
require a showing of prejudice (People v. Martinez (2000) 22 Cal.4th 750, 769), when a
minor waits until after the jurisdictional hearing has been held to seek appellate review of
a speedy trial claim, a violation will require reversal only upon a showing of prejudice
from the delay. “ ‘Prejudice becomes an issue for a statutory speedy trial claim only
when the defendant waits until after the judgment to obtain appellate review. “[O]nce a
defendant has been tried and convicted, the state Constitution in article VI, section 13,
forbids reversal for nonprejudicial error,” and so on appeal from a judgment of conviction
a defendant asserting a statutory speedy trial claim must show that the delay caused
prejudice, even though the defendant would not be required to show prejudice on pretrial
appellate review.’ (People v. Martinez[, supra,] 22 Cal.4th [at p.] 769, quoting People v.
Johnson (1980) 26 Cal.3d 557, 575.)” (In re Chuong D. (2006) 135 Cal.App.4th 1303,
1311.)
Appellant’s position that his filing of the writ petition obviates the need for him to
show prejudice on this appeal is mistaken. In People v. Booker (2011) 51 Cal.4th 141,
after unsuccessfully moving to set aside an indictment, the defendant filed a petition for
writ of mandate, which was denied. On appeal after his trial, he contended that he was
not required to make the usual showing of prejudice because he had challenged the
indictment pretrial. The Supreme Court explained that while prejudice was not required
to be shown in a pretrial challenge, the requirement of showing prejudice posttrial was

8
not obviated by the fact of an unsuccessful pretrial challenge. “[T]he need for a showing
of prejudice depends on the stage of the proceedings at which a defendant raises the
claim in a reviewing court, and not simply on whether he or she had raised the claim prior
to trial. That defendant here . . . filed a pretrial writ petition does not alter the analysis as
to why no showing of prejudice is required for pretrial challenges to grand jury
proceedings but is required for posttrial challenges.” (Id. at p. 157.)
The defendant in Booker relied in part on language in Serna v. Superior Court
(1985) 40 Cal.3d 239, which granted a pretrial petition for writ of mandate directing the
trial court to dismiss a case on speedy trial grounds without requiring a showing of
prejudice. The Serna court had stated, “it is not unreasonable to require a felony
defendant who does not seek or obtain pretrial relief to demonstrate actual prejudice
when reversal of a judgment is sought on this ground on appeal.” (Id. at p. 263.) Booker
found Serna (and People v. Stewart (2004) 33 Cal.4th 425, another case describing the
need for demonstrating prejudice in a posttrial challenge although it was not required in a
pretrial challenge) consistent with the “rule that whether a showing of prejudice is
required depends on the stage of the proceedings at which the claim is raised in the
reviewing court. To the extent defendant reads Serna and Stewart as implying a different
showing of prejudice is required for posttrial challenges based on whether there was also
a pretrial challenge, he is mistaken.” (Booker, supra, 51 Cal.4th at p. 157.)
Here, appellant has not attempted to demonstrate prejudice, relying upon his
contention that he is not required to do so. We are aware of no prejudice resulting from
the delay in proceedings from March 11 to March 28.
While the absence of prejudice fully resolves appellant’s claim on appeal, we feel
it appropriate to question the soundness of the trial court’s refusal to view appellant’s
time waiver as “limited” rather than general. The concept of a limited time waiver has
been recognized (albeit without discussion) in both juvenile and adult criminal cases.
(Raul P. v. Superior Court (1984) 153 Cal.App.3d 294, 296 [limited time waiver to
specified date for preparation of report for fitness hearing]; People v. Lynch (2010)
50 Cal.4th 693, 721 [limited time waiver to specified date].) Such waivers are of obvious

9
utility to courts laboring with crowded dockets, and a rule construing all waivers as
general ones would necessarily undermine the willingness of the defense to enter short-
term time waivers. (See Simon, California Preliminary Hearing and 995 Benchbook
(Matthew Bender rev. ed. 2013) § 1.1.16, p. 1-13 [noting utility of “short time waivers”].)
Here, the record establishes without question that appellant intended to enter a time-
limited waiver. At the hearing on February 21, defense counsel sought a continuance of
two weeks to explore new issues raised by the recordings she had been given by the
prosecution the day before. The judge explained that he would not be available in two
weeks but the case could be heard in another department on March 11. In the course of
the discussion, the judge noted, “I will not be back until the 25th. I’m sure he’s not going
to want to wait that long, so.” Defense counsel replied, “That would be correct.” After
settling on March 11, the court asked, “Is the minor going to waive time?” Counsel
stated, “To that date, yes.” This exchange demonstrates both that appellant intended a
time limited waiver and that the court understood the waiver to be time limited and not
general.
Had appellant’s time waiver been accepted as limited, when the parties came
before a different judge on March 11, the court’s options were to order appellant released,
to dismiss the petition without prejudice to refiling, or to order a continuance upon a
showing of good cause. Because of its holding on the limited time waiver issue, the court
did not reach the issue of good cause. Moreover, the procedural requirements set by
section 682, subdivisions (a) and (b), and rule 5.776(a)—including notice of the motion
to continue for good cause and entry of the court’s findings in the minutes and order—
were not followed. It bears noting, however, that a finding of good cause for the
continuance likely would not have been an abuse of discretion based on Officer Salazar’s
unavailability due to the recent, unexpectedly early birth of his child. (In re Maurice E.,
supra, 132 Cal.App.4th 474 [good cause established for short continuance where officer
unavailable due to birth of baby and absence of alternate child care].)

10
 II.
Appellant contends, and respondent concedes, that the juvenile court erred in
sustaining the count of receiving stolen property, which was based upon the same
property taken in the robbery (Mendes’s cell phone). Absent an exception not relevant
here, a person may not be convicted of both receiving stolen property and theft of the
same property. (People v. Garza (2005) 35 Cal.4th 866, 874; In re Kali D. (1995)
37 Cal.App.4th 381, 384-385, disapproved on other grounds in People v. Allen (1995)
21 Cal.4th 846, 861, fn. 16; Pen. Code, § 496.) Respondent agrees that the true finding
on the receiving stolen property count must be stricken and the maximum term of
confinement must be reduced to five years, the aggravated term for robbery. The court’s
orders shall be amended to reflect these changes.
III.
The minute order from the dispositional hearing includes among the conditions of
appellant’s probation an order that he “[b]e of good citizenship and good conduct.”
Appellant contends this probation condition is unconstitutionally vague. This challenge
is permissible despite appellant’s failure to raise it below because it raises “a pure
question of law, easily remediable on appeal by modification of the condition.” (In re
Sheena K. (2007) 40 Cal.4th 875, 888.)
“ ‘ “It is an essential component of due process that individuals be given fair
notice of those acts which may lead to a loss of liberty. [Citations.] This is true whether
the loss of liberty arises from a criminal conviction or the revocation of probation.
[Citations.] [¶] ‘ “Fair notice” requires only that a violation be described with a
“ ‘reasonable degree of certainty’ ” . . . so that “ordinary people can understand what
conduct is prohibited.” . . . .’ ” [Citation.]’ (In re Angel J. (1992) 9 Cal.App.4th 1096,
1101-1102, quoting In re Robert M. (1985) 163 Cal. App. 3d 812, 816, quoting Burg v.
Municipal Court (1983) 35 Cal.3d 257, 270–271.)” (In re Byron B. (2004)
119 Cal.App.4th 1013, 1018.) “A probation condition ‘must be sufficiently precise for
the probationer to know what is required of him, and for the court to determine whether
the condition has been violated,’ if it is to withstand a challenge on the ground of

11
vagueness. (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.)” (In re
Sheena K., supra, 40 Cal.4th at p. 890.)
The requirement that appellant “[b]e of good citizenship and good conduct” is
general, imprecise, and subjective; it provides no specificity as to what conduct would
violate the probation condition. Respondent suggests that this condition merely refers to
appellant obeying all laws and following the conditions of his probation. Specifically,
respondent maintains the challenged condition is “akin” to the requirements orally recited
by the court that appellant “[o]bey all city, county, state, federal laws and ordinances,”
“[o]bey his parents, legal guardian or caregiver,” “attend school regularly, obey school
rules and regulations, and not leave the school campus during school hours without the
permission of school officials or the probation officer” and attend “26 consecutive
weekends for a program of citizenship training and work.” This list of specific
conditions, however, only demonstrates the generality of the one appellant challenges. If
it is to be interpreted as respondent suggests, it is redundant and unnecessary; if it
purports to refer to additional conduct, it fails for want of specificity providing notice of
the conduct it would encompass. The condition must be stricken.
IV.
Appellant’s final challenge is to the probation condition providing: “Do not
associate with anyone who uses or possesses dangerous nor deadly weapons nor
explosive devices nor remain in any vehicle where such weapons are present.” Appellant
argues that without an express requirement of knowledge, the condition is
unconstitutionally vague and overbroad because he could violate it unknowingly.
Respondent agrees that in order to pass constitutional muster, a probation
condition prohibiting possession of certain items or association with certain people must
include a requirement that the probationer knowingly engage in the prohibited conduct.
(In re Sheena K., supra, 40 Cal.4th at p. 892.) “California appellate courts have routinely
added an explicit knowledge requirement to probation conditions prohibiting a
probationer from associating with certain categories of persons, frequenting or remaining
in certain areas or establishments, and possessing certain items. (People v. Kim [(2011)]

12
193 Cal.App.4th [836,] 843-845, and cases cited therein.) ‘[T]here is now a substantial
uncontradicted body of case law establishing, as a matter of law, that a probationer
cannot be punished for presence, possession, association, or other actions absent proof of
scienter.’ (People v. Patel [(2011)] 196 Cal.App.4th [956,] 960.)” (People v. Moore
(2012) 211 Cal.App.4th 1179, 1184-1185, fn. omitted.)
Respondent asks us to follow the approach of Patel, which held that because the
law was so clear that a probationer could not be punished for actions such as presence,
possession, or association absent proof of knowledge, the court would no longer entertain
vagueness challenges about such conditions not including express knowledge
requirements. (People v. Patel, supra, 196 Cal.App.4th at pp. 960-961.) Other courts
have declined to follow this approach, instead continuing to modify or strike conditions
as appropriate in each case. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1351; People
v. Moses (2011) 199 Cal.App.4th 374, 381.) We will continue to adhere to the rule
established in In re Sheena K., supra, 40 Cal.4th at page 892, that “modification to
impose an explicit knowledge requirement is necessary to render the condition
constitutional.” (See People v. Pirali, supra, 217 Cal.App.4th at p. 1351.) The probation
condition shall be modified to include a knowledge requirement.
DISPOSITION
The true finding on count two, receiving stolen property, is reversed. The juvenile
court’s minute order for the jurisdiction hearing shall be amended by striking the true
finding on count two and specifying that the maximum term of confinement is five years.
The minute order for the disposition hearing shall be amended to strike the true finding
on count two. The probation condition requiring that appellant “be of good citizenship
and good conduct” shall be stricken. The probation condition concerning weapons shall
be modified to provide, “Do not associate with anyone you know to use or possess
dangerous nor deadly weapons nor explosive devices nor remain in any vehicle where
you know such weapons are present.” With these amendments and modifications, the
juvenile court’s orders are affirmed.

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 _________________________
Kline, P.J.

We concur

_________________________
Haerle, J.

_________________________
Brick, J.*

* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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