California Court of Appeal Aug 10, 2022 No. E077863Unpublished
Filed 8/10/22 In re A.R. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E077863 Plaintiff and Respondent, (Super.Ct.No. J289755) v. OPINION A.R.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda,
Judge. Reversed in part; remanded with directions.
Paul R. Krause, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
A.R., a minor, appeals from a disposition order setting his maximum term of
confinement at five years, after the juvenile court found he committed one count of
domestic violence and one count of assault by means likely to produce great bodily
injury. On appeal, A.R. identifies a number of errors in his sentence.
He correctly argues the juvenile court erred by: (1) selecting the upper felony term
as the maximum period of confinement for the domestic violence offense, in violation of
However, A.B. No. 177 became effective in January 2022, while this appeal was
pending, and repealed the trial courts’ authority to impose various fees, including the
administrative collections fee in Penal Code section 1203.1. (Pen. Code, § 1203.1, as
amended by Stats. 2022, ch. 257, §§ 21, 22.) The new law also repealed the authority to
collect the remaining balance of any of the fees it made unlawful. (Pen. Code, § 1465.9, 2 subd. (b).) The parties argue the collection provision applies to A.R.’s sentence, and we
agree. We therefore vacate the balance remaining on the administrative collections fee.
D. Probation Term
Lastly, A.R. argues his probation condition that says he cannot possess any
weapons or “act like” he does is unconstitutionally vague because it doesn’t provide fair
notice of what conduct is prohibited and it restricts more conduct than necessary. We
disagree.
A judge has “wide discretion” to select appropriate probation 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 [cleaned up].) Faced with a challenge of unconstitutional
vagueness, we independently review the probation condition to determine whether its
terms are “sufficiently precise,” that is, whether they “have a ‘plain commonsense
2 Specifically, A.B. No. 177 amended Penal Code section 1465.9, subdivision (b) to state: “On and after January 1, 2022, the balance of any court-imposed costs pursuant to Section 1001.15, 1001.16, 1001.90, 1202.4, 1203.1, 1203.1ab, 1203.1c, 1203.1m, 1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, or 2085.7, as those sections read on December 31, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” 11
meaning, which is well settled.’” (In re R.P. (2009) 176 Cal.App.4th 562, 566.) Thus, to
withstand a vagueness challenge, “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.’” (Ibid.)
A.R. argues the condition is vague because it could apply to “a virtually
inexhaustible number of subjectively defined objects, behaviors, and situations.” To the
contrary, we think the condition can be easily understood in commonsense terms to apply
when an innocuous object is used to imitate a weapon. As the court explained in In re
A.C. (2019) 37 Cal.App.5th 262, the condition means that A.R. must not “perform an
‘act’ that simulate[s] his possession of a weapon.” (Id. at p. 269.) So, for example, though
a banana is not a gun, A.R. could handle one in a way that simulates a gun by putting it in
his pocket and pressing it against someone the same way you would with a butt of a
handgun. That would violate the condition, whereas eating a banana in front of someone
would not. Or, though a water or laser tag gun is not a real weapon, A.R. would violate
the condition if he pointed one at someone outside the setting of a game. The key is how
A.R. uses the object, and we think a person of common intelligence understands what it
means to use an object as if it were a weapon.
12
III
DISPOSITION
We reverse the disposition order and remand to the juvenile court to recalculate
A.R.’s maximum period of physical confinement in a manner consistent with this
opinion. We also vacate the balance remaining on the administrative collections fee.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court erred in setting the maximum term of confinement by exceeding the middle term, failing to apply Penal Code section 654 to aggregate terms, and failing to exercise its discretion to classify wobbler offenses as felonies or misdemeanors. Consequently, the court reversed the disposition order and remanded for a new hearing, while also vacating the administrative collections fee pursuant to Assembly Bill No. 177.
Issues
Did the juvenile court err by setting the maximum term of confinement for a domestic violence offense at the upper term instead of the middle term?
Does Penal Code section 654 apply to juvenile proceedings when aggregating terms for multiple offenses?
Did the juvenile court fail to exercise its discretion under Welfare and Institutions Code section 702 to classify wobbler offenses as felonies or misdemeanors?
Does the administrative collections fee imposed on the restitution fine remain enforceable following the enactment of Assembly Bill No. 177?
Disposition. Reversed in part; remanded with directions.
Quotations verified verbatim against the opinion
“the juvenile court erred by: (1) selecting the upper felony term as the maximum period of confinement for the domestic violence offense, in violation of Welfare and Institutions Code section 726”
“the judge erred by concluding Penal Code section 654 does not apply in juvenile proceedings”
“neither he nor Judge Dvorak indicated they were aware the offenses were wobblers and, as such, could be punished as misdemeanors.”