In re L.J.

Filed 12/30/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re L.J., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A161118
v.
L.J., (Contra Costa County
Super. Ct. No. J20-00455)
Defendant and Appellant.

THE COURT:

It is ordered that the opinion filed herein on November 30,
2021, be modified as follows:

1. On page 8, at the end of the second complete paragraph,
add footnote No. 4, which will read:

The Legislature recently enacted Assembly Bill
No. 518 (2021–2022 Reg. Sess.), which amends Penal
Code section 654, subdivision (a) to eliminate the
requirement that a trial court punish a defendant
under the provision that provides for the longest
potential term of imprisonment. (Stats. 2021,
ch. 441, § 1.) In a request to modify our opinion, the
minor contends that he will be entitled to the benefit
of the amended statute on remand. We express no
opinion on that question, and nothing in our opinion
is intended to prevent the minor from raising the
argument in the juvenile court.

1
2. The remaining footnotes shall be renumbered to run
consecutively from the newly added footnote.

There is no change in judgment.

Date: _____________________ ____________________________ P. J.

2
Filed 11/30/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re L.J., a Person Coming
Under the Juvenile Court
Law.
THE PEOPLE,
Plaintiff and
Respondent, A161118

v. (Contra Costa County
L.J., Super. Ct. No. J20-00455)
Defendant and
Appellant.
L.J. (the minor) appeals from the juvenile court’s
dispositional order committing him to a county institution and
imposing probation conditions. The juvenile court sustained a
petition alleging the minor came within the court’s jurisdiction
under Welfare and Institutions Code section 602, subdivision (a)
for reckless evasion of a peace officer in violation of Vehicle Code
section 2800.2, subdivision (a) (count 1); assault with a deadly
weapon (deadly weapon assault) on a peace officer in violation of
Penal Code1 section 245, subdivision (c) (count 2); and assault
with force likely to produce great bodily injury (force-likely
assault) in violation of section 245, subdivision (a)(4) (count 3).
He contends (1) the punishment for the reckless evasion count

1 Undesignated statutory references are to the Penal Code.

1
and one of the assault counts must be stayed under section 654
because all of the counts were based on an indivisible course of
conduct committed against the same victims; (2) the finding on
the count of force-likely assault must be vacated under section
954 because it is a lesser included offense of deadly weapon
assault on a peace officer and is based on the same conduct; (3)
the juvenile court failed to designate counts 1 and 3, which are
wobblers,2 as felonies or misdemeanors; and (4) one of the
probation conditions is unconstitutionally vague and overbroad.
We agree with the minor that the punishment on the
reckless evasion of police count must be stayed under section 654
because it is based on the same indivisible course of conduct with
the same intent and objective as the assault counts. We also
agree with the minor’s third argument that the juvenile court
failed to designate counts 1 and 3 as felonies or misdemeanors.
We reject the minor’s remaining arguments. We will therefore
remand this case with appropriate instructions.
BACKGROUND
In August 2020, Antioch police officers responded to a call
about a prowler in a residential neighborhood. The officers tried
to stop a Pontiac sedan they found in the neighborhood that the
caller had identified, but the Pontiac did not stop. Several police
officers in different vehicles then pursued the Pontiac.

2 “A wobbler is a crime that can be punished as either a
felony or a misdemeanor.” (In re G.C. (2020) 8 Cal.5th 1119,
1122, fn. 1.)

2
 Early in the pursuit, the Pontiac came to the end of a dead-
end street. The Pontiac turned around and stopped facing three
patrol vehicles, which were two car lengths away. The street was
approximately the width of three vehicles. One police vehicle was
on the right edge of the roadway facing the Pontiac, a second
vehicle was offset behind the first and partially in the left lane,
and the third vehicle was behind the first. There was sufficient
space for the Pontiac to drive past and get around the police
vehicles without hitting or interfering with them. The officer
driving the first vehicle started to exit his vehicle with his
firearm drawn to stop the driver of the Pontiac.
The Pontiac accelerated towards the officers at 10 to 15
miles per hour. The Pontiac struck the driver’s door on the first
vehicle as the officer opened it, slamming the door on the officer’s
ankle and trapping his foot, and causing a small scrape or dent
on the bottom of the door.3 The Pontiac then hit the front
bumper on the passenger’s side of the second vehicle, causing no
noticeable damage. The Pontiac veered to the left of the third
vehicle to try to avoid hitting it head on, but still sideswiped and
scratched the third vehicle on the driver’s side.
The officers resumed the pursuit of the Pontiac in their
three patrol vehicles. After an extended chase by police vehicles
and pursuit by a California Highway Patrol helicopter, law
enforcement officers eventually apprehended the three occupants

3 The officer experienced pain but did not sustain any
visible injuries or see a doctor.

3
of the Pontiac, one of whom was the minor. Law enforcement
officers later identified the minor as the driver of the Pontiac.
The People filed a petition alleging the minor came within
the court’s jurisdiction under Welfare and Institutions Code
section 602, subdivision (a) for committing three felonies: evasion
of a peace officer while driving in willful disregard of others in
violation of Vehicle Code section 2800.2, subdivision (a) (count 1);
deadly weapon assault on a peace officer in violation of section
245, subdivision (c) (count 2); and force-likely assault in violation
of section 245, subdivision (a)(4) (count 3). After a contested
jurisdictional hearing, the court sustained the petition as to all
three counts. At the dispositional hearing, the court ordered the
minor committed to a county institution until the earliest of the
age of 21 or the maximum custody time of six years and eight
months. The court further ordered that the minor participate in
the Youth Offender Treatment Program. The court imposed
various probation conditions, one of which was that the minor
was “to report any police contact related to criminal activity and
any arrests to [a probation officer] within 24 hours.”
DISCUSSION
I. Section 654
Section 654, subdivision (a) states in pertinent part, “An act
or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one
provision.” “Th[is] section applies to juvenile court proceedings.”

4
(In re Jesse F. (1982) 137 Cal.App.3d 164, 170.) “Whether a
defendant may be subjected to multiple punishment under
section 654 requires a two-step inquiry, because the statutory
reference to an ‘act or omission’ may include not only a discrete
physical act but also a course of conduct encompassing several
acts pursued with a single objective. [Citations.] We first
consider if the different crimes were completed by a ‘single
physical act.’ [Citation.] If so, the defendant may not be
punished more than once for that act. Only if we conclude that
the case involves more than a single act—i.e., a course of
conduct—do we then consider whether that course of conduct
reflects a single ‘intent and objective’ or multiple intents and
objectives.” (People v. Corpening (2016) 2 Cal.5th 307, 311.)
“ ‘Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the
actor.’ . . . [¶] ‘Whether the facts and circumstances reveal a
single intent and objective within the meaning of Penal Code
section 654 is generally a factual matter; the dimension and
meaning of section 654 is a legal question.’ ” (People v. Dowdell
(2014) 227 Cal.App.4th 1388, 1414.) “When a trial court
sentences a defendant to separate terms without making an
express finding the defendant entertained separate objectives,
the trial court is deemed to have made an implied finding each
offense had a separate objective.” (People v. Islas (2012)
210 Cal.App.4th 116, 129.) We review for substantial evidence a
trial court’s implied finding that a defendant had separate

5
intents and objectives for different offenses. (Dowdell, at
p. 1414.)
A. Separate intents and objectives
The minor raises two arguments under section 654. First,
he contends his punishment for evading a police officer while
driving in willful disregard of others must be stayed because it is
based on the same course of conduct as the assault counts. The
minor argues that his collisions with the officers’ vehicles, which
constitute the basis for the sustained assault allegations,
constitute part of his attempt to evade them, so that both the
evasion and the assaults had the single objective of eluding the
police. We agree.
The reckless evasion count is based on the same course of
conduct as the assaults, as the assaults occurred during the
extended flight from the police. The evidence does not support a
finding that the minor’s assaults on the officers were based on
different intents and objectives than the minor’s overall purpose
of trying to evade the police officers. The low speed of the Pontiac
(10 to 15 miles per hour), together with the fact that the minor
evidently slalomed between the three police vehicles and struck
them largely on the sides of the Pontiac and not head-on,
indicates the minor was trying to get past the police vehicles
rather than targeting them. The officer in the third vehicle
admitted that at one point the Pontiac was approaching him
dead-on, but the Pontiac veered to the side to avoid striking the
third police vehicle. The lack of significant damage—a small
scrape or dent on one car, no damage to the second, and a scratch

6
to the third—indicates the minor was trying to evade the police.
Especially when considered in light of the minor’s youth, the
assaults reflect a clumsy and ill-advised attempt to escape the
blockade at the end of the dead-end street, rather than an intent
to injure the officers or damage their vehicles that was separate
from the goal of escape.
The Attorney General stresses that the road was wide
enough to allow the Pontiac to pass the vehicles without striking
them. This does not demonstrate that the intent or objective of
the assaults was different from the objective of evading the
police. The road was only three car-widths wide, and the police
vehicles were on the right side and in the middle of it. The
minor’s failure to avoid contact with the police vehicles in such
tight quarters indicates only the minor’s attempt to elude the
police at 10 to 15 miles per hour, not a deliberate targeting of the
vehicles. The contact along the sides of the Pontiac and the police
vehicles was so slight that it is unreasonable to think the minor
had a separate intent to assault the officers.
The facts of this case may be contrasted with People v.
Jimenez (2019) 32 Cal.App.5th 409, on which the Attorney
General relies. There, a defendant fleeing from one law
enforcement vehicle during a chase turned a corner and began
driving towards a second law enforcement vehicle coming in the
opposite direction. (Id. at pp. 413–414.) The defendant drove on
the wrong side of the road in an attempt to intimidate the
oncoming vehicle. (Id. at pp. 414, 425.) The Court of Appeal
found substantial evidence supported the trial court’s implied

7
finding that the defendant had separate intents to flee the
pursuing officers and assault the oncoming officers. (Id. at
p. 425.) The court also held that the defendant had time to
reflect because he could have avoided driving toward the
oncoming vehicle. (Id. at p. 426.)
Here, the minor took no action as dangerous as driving into
oncoming traffic, and, in fact, attempted to avoid striking the
third vehicle by veering away from it. The time from when the
Pontiac reached the end of the road and the officer got out of the
first vehicle to when the Pontiac took off was very brief. The
contact between the Pontiac and the police vehicles was
incidental to the overall purpose of escaping the dead-end street.
Because the charge of reckless evasion of a police officer in
violation of Vehicle Code section 2800.2, subdivision (a) does not
carry the highest punishment, the punishment for that count
must be excluded from the calculation of the minor’s maximum
time of confinement. (§ 654, subd. (a) [act must be punished
under the provision that provides for the longest potential term of
imprisonment]; Veh. Code, § 2800.2 [punishable by six months to
one year in county jail or imprisonment]; § 245, subd. (a)(4)
[punishable by two, three, or four years in prison or one year in
county jail]; § 245, subd. (c) [punishable by three, four, or five
years in prison].)
B. Multiple Victims and Section 654
The minor next argues that section 654 requires the
exclusion of one of his assault counts from his maximum time of
confinement. The minor recognizes that “section 654 does not

8
apply to crimes of violence against multiple victims. [Citation.]
The reason is that “ ‘[a] defendant who commits an act of violence
with the intent to harm more than one person or by a means
likely to cause harm to several persons is more culpable than a
defendant who harms only one person.” ’ ” (People v. Correa
(2012) 54 Cal.4th 331, 341, fn. omitted.) But the minor contends
the multiple victim exception does not apply here because the
same three officers were the victims of both assault charges. He
cites People v. Cardenas (2015) 239 Cal.App.4th 220, 230, which
stated, “To preclude application of section 654, however, each of
the crimes must have involved at least one different victim.”
According to the minor, this means at least one victim of the
conviction for force-likely assault in violation of section 245,
subdivision (a)(4) must be a different, separate victim of the
conviction for deadly weapon assault on a peace officer in
violation of section 245, subdivision (c).
“The multiple victim exception, simply stated, permits one
unstayed sentence per victim of all the violent crimes the
defendant commits incidental to a single criminal intent.”
(People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.) The juvenile
court found the minor committed assault against three different
police officers. The minor could therefore have been punished
separately for each victim of his assaults without violating
section 654. This would be consistent with the rationale of the
multiple-victim exception, which is to recognize the greater
culpability of a defendant whose actions harm or threaten to

9
harm multiple people. (People v. Correa, supra, 54 Cal.4th at
p. 341.)
The prosecutor charged the minor with only two counts of
assault on the same three officers in each count, but that does not
change the application of the multiple-victim exception, as People
v. Garcia, supra, 32 Cal.App.4th 1756 demonstrates. There, the
defendant was convicted of shooting at an occupied motor vehicle
and assaulting the four victims inside. (Id. at pp. 1762–1763.)
The trial court imposed a sentence on the defendant for the count
of shooting at an occupied motor vehicle and for the assault on
one of the occupants, staying the charges for the other three
assault counts. (Id. at pp. 1764–1765.) The Court of Appeal
rejected the defendant’s argument that this sentence violated
section 654. (Id. at p. 1785.) As relevant here, the court
explained, “Where one person is the victim of both a shooting at
an occupied motor vehicle and a simultaneous assault, the trial
court can impose an unstayed sentence for one or the other, but
not for both. [Citations.] We believe this is equally true where the
same persons are the victims of a shooting at an occupied motor
vehicle and of simultaneous assaults: the trial court can impose
an unstayed sentence for the shooting, based on any given victim,
or for the assault on that victim, but not for both.” (Id. at
p. 1784.) Garcia demonstrates that the relevant consideration is
the total number of victims and charges, not the overlap between
victims in various charges.
We recognize that in People v. Centers (1999)
73 Cal.App.4th 84, 101–102, which the minor cites, the court

10
upheld punishments for two different counts where the victims in
each count overlapped only partially, rather than completely as
they do here. This distinction, however, is not significant. The
rationale in Centers was that the defendant could be punished
based on the number of victims, and the degree of overlap was
relevant to show the defendant was punished only once per
victim. Centers did not hold that the result would have been
different if the same group of people were the victims of each
count.
The minor’s theory that complete overlap of victims bars
multiple punishments would lead to absurd results. It would
mean a defendant who committed two crimes against the same
two victims would be punished less severely than a defendant
who committed two crimes against one victim and one crime
against a second victim. It would also allow a prosecutor to
selectively increase the punishment for a defendant simply by
choosing not to charge or prove the defendant’s guilt on a crime
as to one of the victims, to avoid a complete overlap of victims.
Thus, the prosecutor in this case could have avoided the reach of
section 654 (as interpreted by the minor) by charging him with
force-likely assault as to two officers and deadly weapon assault
on a peace officer as to three officers. Such outcomes are contrary
to the purpose of the multiple-victim exception, which is to
increase punishment based on harm or threat of harm to more
people. We therefore hold that section 654 does not prohibit the
minor’s punishment for both assault counts.

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 II. Section 954
“Section 954 provides as relevant here: ‘An accusatory
pleading may charge two or more different offenses connected
together in their commission, or different statements of the same
offense or two or more different offenses of the same class of
crimes or offenses, under separate counts . . . . The prosecution is
not required to elect between the different offenses or counts set
forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged . . . .’ Under
section 954, as [the Supreme Court has] interpreted it, ‘a
defendant properly may be convicted of two offenses if neither
offense is necessarily included in the other, even though under
section 654 he or she could not be punished for more than one
offense arising from the single act or indivisible course of
conduct.’ ” (People v. Vidana (2016) 1 Cal.5th 632, 636–637,
fn. omitted (Vidana).) Additionally, “ ‘[t]he most reasonable
construction of the language in section 954 is that the statute
authorizes multiple convictions for different or distinct offenses,
but does not permit multiple convictions for a different statement
of the same offense when it is based on the same act or course of
conduct.’ ” (Id. at p. 650.) Thus, section 954 permits multiple
convictions based on the same conduct except when the
convictions rest on different statements of the same offense or
when a statement of one offense is necessarily included within
another. We review the application of section 954 de novo.
(People v. Villegas (2012) 205 Cal.App.4th 642, 646.)

12
 The minor contends that both the exceptions to section 954
prohibit the court from convicting him of both force-likely assault
under section 245, subdivision (a)(4) and deadly weapon assault
on a peace officer under subdivision (c). He presents two
alternative paths to this conclusion, relying on the holding in
People v. McElheny (1982) 137 Cal.App.3d 396, 406 that deadly
weapon assault is a lesser included offense of deadly weapon
assault on a peace officer under subdivision (c). In one argument,
he contends force-likely assault is a lesser included offense of
deadly weapon assault, so by extension it must also be included
within deadly weapon assault on a peace officer. In the other, the
minor contends that force-likely assault is a statement of the
same offense as deadly weapon assault, so force-likely assault
“should be treated as a lesser included offense of” deadly weapon
assault on a peace officer for purposes of section 954. We are not
persuaded by either contention.
A. Lesser included offense
For the minor’s first argument, one offense is necessarily
included within another “if the statutory elements of the greater
offense include all of the statutory elements of the lesser offense.”
(People v. Reed (2006) 38 Cal.4th 1224, 1227.) Construing
substantially similar language in a former version of the statute,
In re Mosely (1970) 1 Cal.3d 913, 919, fn. 5, stated that force-
likely assault is not a lesser included offense of deadly weapon
assault. More recently, People v. Aguayo (2019) 31 Cal.App.5th

13
758, 766, review granted May 1, 2019, S25454 (Aguayo),4 reached
the same conclusion under the current version of the statute.
Both decisions contradict the minor’s argument.
Aguayo relied in large part on People v. Aguilar (1997)
16 Cal.4th 1023 (Aguilar). (Aguayo, supra, 31 Cal.App.5th at
pp. 765–767.) Construing an earlier version of the statute (see
Aguayo, at p. 765, fn. 5), Aguilar held that “except in those cases
involving an inherently dangerous weapon,” a jury’s decision
when considering force-likely and deadly weapon assault is
“functionally identical regardless of whether, in the particular
case, the defendant employed a weapon alleged to be deadly as
used or employed force likely to produce great bodily injury; in
either instance, the decision turns on the nature of the force

4 The Supreme Court originally deferred briefing in People
v. Aguayo, review granted May 1, 2019, S254554, pending
resolution of People v. Aledamat, review granted July 5, 2018,
S248105. (People v. Aguayo (2019) 439 P.3d 764; see Cal. Rules of
Court, rules 8.512(d)(2), 8.520.) After the Supreme Court issued
its decision in People v. Aledamat (2019) 8 Cal.5th 1, the court
ordered the parties in Aguayo to brief the following questions: “Is
assault by means of force likely to produce great bodily injury a
lesser included offense of assault with a deadly weapon? If so,
was defendant’s conviction of assault by means of force likely to
produce great bodily injury based on the same act or course of
conduct as her conviction of assault with a deadly weapon?”
(People v. Aguayo (Nov. 20, 2019, S254554) 2019 Cal. Lexis 8785.)
In April 2020, the Court ordered the parties to file supplemental
briefs “addressing the following questions: ‘Are Penal Code
section 245, subdivision (a)(1) and section 245, subdivision (a)(4)
merely different statements of the same offense for purposes of
section 954? If so, must one of defendant’s convictions be
vacated?’ ” (People v. Aguayo (Apr. 22, 2020, S254554) 2019 Cal.
Lexis 2769.)

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used.” (Aguilar, at p. 1035.) But Aguilar noted that deadly
weapon assault was not duplicative of force-likely assault,
because “[t]here remain assaults involving weapons that are
deadly per se, such as dirks and blackjacks, in which the
prosecutor may argue for, and the jury convict of, aggravated
assault based on the mere character of the weapon.” (Id. at
p. 1037, fn. 10.)
Aguayo concluded from Aguilar that “although every force-
likely assault must be committed in a way that is likely to
produce great bodily injury (either with or without a deadly
weapon), there is a subset of assaults with deadly weapons—
those committed with inherently deadly weapons—that are not
necessarily likely to produce great bodily injury.” (Aguayo, supra,
31 Cal.App.5th at p. 766.) In other words, because one element of
force-likely assault is that the force used be likely to produce
great bodily injury, while not every use of a deadly weapon is
necessarily likely to produce such injury, force-likely assault is
not a lesser included offense of deadly weapon assault. (See ibid.)
The minor distinguishes Aguayo on its facts, noting that
the defendant’s convictions there were based on hitting the victim
with multiple different objects. (Aguayo, supra, 31 Cal.App.5th
at p. 768.) We consider the facts of the minor’s offense only to
decide if the minor has established the threshold condition for
application of section 954, namely, that he suffered multiple
convictions based on the same act or course of conduct. (See
Vidana, supra, 1 Cal.5th at pp. 637, 647–648.) The test for lesser
included offenses, however, focuses on the elements of offenses in

15
the abstract and not their factual predicate in a specific case.
(People v. Reed, supra, 38 Cal.4th at p. 1229 [“In deciding
whether multiple conviction is proper, a court should consider
only the statutory elements”].) The facts of the offenses here and
in Aguayo are thus irrelevant to the elements-based question of
whether force-likely assault is a lesser included offense of deadly
weapon assault under the elements test.
The minor urges us to follow In re Jonathan R. (2016)
3 Cal.App.5th 963, 970, 973–974, which held that force-likely
assault is not a statement of the same offense as deadly weapon
assault but is a lesser included offense of it. Jonathan R. focused
on Aguilar’s statement that “there is a ‘fundamental identity of
the concepts of assault with a deadly weapon and assault by
means of force likely to produce great bodily injury.’ ([Aguilar,]
at p. 1036.)” (Jonathan R., at p. 973.) In a footnote, Jonathan R.
declared the same was true of assault with an inherently deadly
weapon, because such weapons “ ‘are “dangerous or deadly” to
others in the ordinary use for which they are designed’ ” so that
“[u]se of these weapons necessarily involves the use of force likely
to produce death or serious injury.” (Jonathan R., at p. 973,
fn. 5.)
Like Aguayo, we decline to follow Jonathan R. (Aguayo,
supra, 31 Cal.App.5th at p. 767.) Jonathan R. relies on Aguilar’s
reasoning about the similarity between force-likely and deadly
weapon assaults while ignoring Aguilar’s explicit exception that
prevented the two concepts from collapsing into one and making
one concept surplusage. As Aguayo pointed out, Aguilar

16
recognized this exception because “there are nonordinary uses to
which one can put an inherently deadly weapon . . . without
altering the weapon’s inherently deadly character.” (Aguayo,
supra, 31 Cal.App.5th at p. 767, italics omitted.) In a
hypothetical described in Aguayo, which the Attorney General
repeats here, “ ‘a defendant cuts a single strand of a sleeping
person’s hair with an inherently dangerous weapon such as a
dagger.’ ” (Id. at p. 766.) A dagger is capable of producing great
bodily injury, and thus a defendant’s use of it in this scenario
would prove deadly weapon assault (assuming the other elements
were met). But because the defendant did not use the dagger in a
manner likely to cause great bodily injury, the defendant would
not have committed force-likely assault. (Id. at pp. 766–767.)
Thus, because force-likely assault’s element of use of force likely
to cause great bodily injury is not necessarily included within
deadly weapon assault, the former is not a lesser included offense
of the latter.
B. Statement of the same offense
The minor’s second argument under section 954, that force-
likely assault is a statement of the same offense as deadly
weapon assault and therefore also included within deadly weapon
assault on a peace officer under section 245, subdivision (c), also
fails under our Supreme Court’s cases. To determine whether
one statutory provision describes the same offense as another
such that conviction on both offenses would be barred, the
Supreme Court first considers whether the two provisions have
the same elements or one is a lesser included offense of the

17
other.5 (People v. White (2017) 2 Cal.5th 349, 357 [noting of
section 261, subdivisions (a)(3) and (a)(4)(A), “ ‘neither offense is
included within the other’ ”]; Vidana, supra, 1 Cal.5th at p. 648
[“Larceny and embezzlement have different elements and neither
is a lesser included offense of the other”]; People v. Gonzales
(2014) 60 Cal.4th 533, 539 (Gonzalez) [noting of section 288,
subdivisions (f) and (i), “neither offense is included within the
other”].) The Supreme Court also examines the two provisions’
textual structure. (Gonzales, at p. 539.) In White and Vidana,
the Court went on to consider whether the legislative history and
historical context showed that the Legislature intended the
provisions to describe a single offense, despite the provisions’
dissimilarity of elements and separate structure. (White, at
pp. 358–359 [considering legislative history]; Vidana, at p. 648
[same].)
These cases demonstrate that unlike the test for whether
one offense is included within another (which depends on the
elements of the offenses), the test for whether two provisions are
statements of the same offense depends ultimately on legislative
structure and intent. Thus, in Vidana, supra, 2 Cal.5th at pages
648–649, the court concluded that larceny and embezzlement
were statements of the same offense, even though they have
different elements and neither is included within the other,

5 Presumably, this is because section 954 also bars two
convictions where one was included within the other (Vidana,
supra, 1 Cal.5th at pp. 636–637), so if one provision is included
within another there is no need to consider whether the
provisions state a single offense.

18
because other indicia of legislative intent pointed to that result.
The determination that two provisions are statements of the
same offense is therefore analytically distinct from the question
of whether, under the elements test, the first provision is a lesser
included offense of all the same offenses as the second. The
different tests cause the two concepts to operate independently.
Applying the Supreme Court’s framework to force-likely
and deadly weapon assault demonstrates the point. We have
already concluded that force-likely and deadly weapon assault
have different elements, so that force-likely assault is not a lesser
included offense of deadly weapon assault. The only way for
force-likely assault to be a statement of the same offense as
deadly weapon assault would be if there were some indication in
section 245’s structure, historical context, or legislative history
that the Legislature intended this result. Section 245’s history
and context may in fact demonstrate this intent, as described in
People v. Cota (2020) 44 Cal.App.5th 720, 724–729, review
granted April 22, 2020, S261120, briefing deferred pursuant to
rule 8.512(d)(2), Cal. Rules of Court, pending disposition of People
v. Aguayo, S254554. But even if Cota were correct on this score
(which we need not and do not decide), force-likely and deadly
weapon assault would be statements of the same offense despite
having different elements, not because they have the same
elements. Since the elements of these two types of assault are
analytically irrelevant to the question of whether they are
statements of the same offense, there is no reason to treat force-
likely assault as included within assault with a deadly weapon on

19
a peace officer under section 245, subdivision (c), even if deadly-
weapon assault is a lesser included offense of that charge.
Accordingly, there is no merit to defendant’s argument that he
may not be found to have committed both force-likely assault and
assault with a deadly weapon on a peace officer.
III. Designation as felonies or misdemeanors
Welfare and Institutions Code section 702 states that after
a juvenile court finds that a minor is described by section 602, as
the court did here, the juvenile court “shall then proceed to hear
evidence on the question of the proper disposition to be made of
the minor.” The same statute further requires, “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.) “It is well established that section
702’s requirement is ‘obligatory’ rather than ‘merely “directory” ’
[citation] and requires an explicit declaration [citation]. It is not
sufficient that the offenses were identified as felonies in the
wardship petitions and in the minute order of the jurisdictional
hearing, or that they were treated as felonies for purposes of
calculating the maximum term of confinement.” (In re G.C.,
supra, 8 Cal.5th at p. 1125.)
The minor argues, the Attorney General concedes, and we
agree that an adult’s conviction for reckless evasion of a police
officer in violation of Vehicle Code section 2800.2, subdivision (a)
(count 1) or force-likely assault in violation of section 245,
subdivision (a)(4) (count 3) may be punished as either a felony or

20
misdemeanor, so Welfare and Institutions Code section 702
required the juvenile court to designate those offenses as one or
the other. The juvenile court failed to do so. The juvenile court’s
calculation of the maximum term of confinement indicates that it
treated the offenses as felonies, but under In re G.C., supra,
8 Cal.5th at page 1125, that is insufficient. Accordingly, we must
remand this case for the juvenile court to make the required
finding. (In re Manzy W. (1997) 14 Cal.4th 1199, 1211.)
IV. Probation condition
The minor challenges the juvenile court’s imposition of a
probation condition requiring the minor to “report any police
contact related to criminal activity and any arrests to the Deputy
Probation Officer within 24 hours.” The minor argues this
condition is unconstitutionally vague and overbroad.
“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.’ ” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 889.) “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 vagueness. [Citation.] A
probation condition that imposes limitations on a person’s
constitutional rights must closely tailor those limitations to the
purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.” (Id. at p. 890.)

21
 “The vagueness doctrine ‘ “bars enforcement of ‘a statute
which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application.’ ” [Citations.]’
[Citation.] A vague law ‘not only fails to provide adequate notice
to those who must observe its strictures, but also “impermissibly
delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.” [Citation.]’
[Citation.] In deciding the adequacy of any notice afforded those
bound by a legal restriction, we are guided by the principles that
‘abstract legal commands must be applied in a specific context,’
and that, although not admitting of ‘mathematical certainty,’ the
language used must have ‘ “reasonable specificity.” ’ ” (In re
Sheena K., supra, 40 Cal.4th at p. 890.) We review de novo a
challenge to a probation condition on the grounds of vagueness or
overbreadth. (People v. Stapleton (2017) 9 Cal.App.5th
989, 993.)
The minor’s vagueness and overbreadth arguments rely
primarily on In re I.M. (2020) 53 Cal.App.5th 929. There, a
juvenile court imposed a probation condition requiring a minor to
“ ‘to report any police contacts’ to the deputy probation officer
within 24 hours.” (Id. at p. 931.) The Court of Appeal held this
condition was vague and overbroad because it “ ‘does indeed leave
one to guess what sorts of events and interactions qualify as
reportable,’ ” and “ ‘casts an excessively broad net over what
would otherwise be activity not worthy of reporting.’ ” (Id. at

22
p. 936.) The Court of Appeal rejected a suggested modification of
the condition to require the minor to report “ ‘any police contacts
related to criminal activity, arrests, or an officer’s request for the
minor’s identification.’ ” (Ibid.) The court explained, “[T]his
proposed modification remains vague as it does not indicate
whether appellant is required to report police contacts concerning
criminal activities and arrests based solely on her own conduct or
whether it also includes criminal activities and arrests of other
persons which appellant may witness.” (Ibid.)
The minor asserts the condition the juvenile court imposed
here is identical to that in In re I.M., but this is inaccurate. The
condition in In re I.M., supra, 53 Cal.App.5th at page 931,
required a minor to report “any contacts,” which could include
innocent contact with police officers such as requests for
directions. (Cf. People v. Relkin (2016) 6 Cal.App.5th 1188, 1197
[concluding a similar instruction would apply if a “defendant says
‘hello’ to a police officer”].) Here, the condition applies to police
contacts “related to criminal activity.” This narrows the scope of
potential contacts that require reporting and makes clearer to the
minor what is required of him. The minor hypothesizes that the
condition does not tell him whether he would have to report
attending a Black Lives Matter demonstration where police
officers were present and other people were teargassed, arrested,
or detained. The minor’s hypothetical does not involve any police
contact with the minor, merely presence near police officers, so
the condition by its own terms would not apply. If the minor
were to speak to the police about the arrests or detention of

23
others at this hypothetical rally, though, the condition would
apply, since the minor would have the requisite contact with the
police and the arrests and detention would indicate the police
officers involved believed criminal activity had taken place.
In re I.M. believed a condition like this would be
unconstitutional because it does not indicate whether it is limited
to criminal activity based on the minor’s own conduct or whether
it includes crimes that the minor may witness. (In re I.M., supra,
53 Cal.App.5th at p. 936.) We disagree. Giving the condition a
meaning apparent to a reasonable, objective reader (People v.
Olguin (2008) 45 Cal.4th 375, 382) and requiring only
“ ‘ “reasonable specificity” ’ ” (In re Sheena K., supra, 40 Cal.4th at
p. 890), the lack of any limitation regarding the parties
responsible for the criminal activity indicates that the condition
applies to both kinds of criminal activity.
Contrary to the minor’s contentions, however, the condition
does not sweep too broadly. The purpose of juvenile probation
conditions is to enhance the reformation and rehabilitation of a
minor. (Welf. & Inst. Code, § 730, subd. (b).) The condition does
not require the minor to report casual, inconsequential
interactions with law enforcement officers, but instead limits
reports to those interactions that might indicate whether the
minor’s lifestyle is such that he is present when criminal activity
occurs. (Cf. People v. Relkin, supra, 6 Cal.App.5th 1188, 1197
[finding probation condition overbroad because it was not limited
to the latter type of contact].) If the minor is present when
criminal activity takes place, even if perpetrated by others, it

24
could indicate to a probation officer that the minor was
associating with individuals likely to hinder his reformation.
This demonstrates the condition is sufficiently narrowly tailored
to the purpose of probation conditions.6
DISPOSITION
The matter is remanded to the juvenile court with
instructions to designate counts 1 (reckless evasion of a peace
officer in violation of Vehicle Code section 2800.2, subdivision (a))
and 3 (force-likely assault in violation of section 245,
subdivision (a)(4)) as felonies or misdemeanors and to exclude
count 1 from the calculation of the minor’s maximum time of
confinement.7 In all other respects, the judgment is affirmed.

BROWN, J.

WE CONCUR:

STREETER, ACTING P. J.
ROSS, J.

6 We express no view on whether the challenged probation
condition would survive scrutiny if applied to an adult.
7 After briefing was complete, the minor asked for leave to
file a supplemental brief arguing for the retroactive application of
Senate Bill No. 92 (2021–2022 Reg. Sess.), which amended
Welfare and Institutions Code section 726 to change the
calculation of the maximum term of confinement. (Stats. 2021,
ch. 18, § 7.) We denied that application, because the minor may
raise that argument on remand when the juvenile court
recalculates the minor’s maximum time of confinement and
designates counts 1 and 3 as misdemeanors or felonies.

Judge of the Superior Court of California, City and
County of San Francisco, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Barbara Hinton

Counsel:

Carrie Kojimoto, under appointment by the Court of Appeal, for
Defendant and Appellant.

Rob Bonta, Attorney General, Lance Winters, Jeffrey M.
Laurence, Assistant Attorneys General, Eric D. Share, Katie L.
Stowe, Deputy Attorneys General, for Plaintiff and Respondent.

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