People v. Isaiah B. (In re Isaiah B.)

Full title: In re ISAIAH B., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Feb 28, 2018

No. A149422 (Cal. Ct. App. Feb. 28, 2018)

Opinion

A149422

02-28-2018

In re ISAIAH B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ISAIAH B., Defendant and Appellant.

BRUINIERS, J.

ORDER MODIFYING NONPUBLISHED OPINION
[NO CHANGE IN JUDGMENT] THE COURT:^*

* Before Jones, P.J., Simons, J., and Bruiniers, J.

IT IS ORDERED that the opinion filed herein on February 28, 2018, be modified as follows:

1. On page 5, the second sentence in the final paragraph is deleted and replaced with the following sentence:

As Mendez approached Isaiah to handcuff him, S.F. took out a switch blade knife from a table in the loss prevention office, opened the knife, pointed the blade at Mendez's face, and told him to "get back."

2. On page 28, at the conclusion of the final sentence in the second paragraph of section III.C., a new footnote is added that reads:

In a petition for rehearing, Isaiah also argues this court should assess his sufficiency of the evidence argument under a less deferential standard because the juvenile court's true findings potentially implicate his First

Amendment right to free speech. Isaiah forfeited the issue by failing to clearly raise it before the petition for rehearing. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [party may forfeit argument by failing to support it with reasoned analysis]; People v. Holford (2012) 203 Cal.App.4th 155, 159, fn. 2 ["it is 'too late to urge a point for the first time in a petition for rehearing, after the case ha[s] been fully considered and decided by the court upon the points presented in the original briefs' "].) In any event, Isaiah's reliance on In re George T., supra, 33 Cal.4th 620 is misplaced. In George T., the minor, who had been found to have made a criminal threat under section 422, presented a plausible First Amendment defense because the words at issue were found in an equivocal and ambiguous "dark" poem. (Id. at pp. 634-636, 638.) Furthermore, there was no history of animosity or conflict between the minor and the students receiving the poem, no threatening gestures or mannerisms accompanying the poem, and no conduct unequivocally indicating an immediate prospect that any threat would be carried out. (Id. at pp. 637-638.) Here, even if independent review applies to a violation of section 136.1, the record is not ambiguous. Isaiah's statements constituted threats not subject to First Amendment protection.

The modification effects no change in the judgment. The petition for rehearing is DENIED. Date__________

/s/_________ P.J.

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. (Contra Costa County Super. Ct. No. J16-00228; San Francisco City and County Super. Ct. No. JW16-6137)

Isaiah B. was declared a ward of the juvenile court (Welf. & Inst. Code, § 602) after it found he committed two counts of witness intimidation (Pen. Code, § 136.1, subd. (b)(2)).¹ Isaiah appeals, asserting the juvenile court (1) violated his due process rights and the separation of powers doctrine by amending the petition, on its own motion, at the conclusion of the jurisdictional hearing; (2) made findings unsupported by substantial evidence; (3) construed the statute to violate the First Amendment; (4) improperly allowed the People to fragment a single offense into two counts; (5) failed to designate his "wobbler" offenses as either misdemeanors or felonies; and (6) and imposed a vague and overbroad probation condition. We affirm.

1 Undesignated statutory references are to the Penal Code. Undesignated subdivision references are to section 136.1.

I. STATUTORY BACKGROUND

Before we approach a rather technical discussion of the charges and facts underlying the sustained counts, some background on the statute is helpful. "Section 136.1, by one court's reckoning, defines some 20 distinct offenses." (People v. Brown (2016) 6 Cal.App.5th 1074, 1079, citing People v. Torres (2011) 198 Cal.App.4th 1131, 1137-1138.) "Section 136.1 basically prohibits four forms of witness intimidation. In subdivision (a), it forbids knowingly and maliciously preventing or dissuading a witness or victim from attending or testifying at trial. Subdivision (b) prohibits preventing or dissuading a witness or victim from (1) reporting the victimization; (2) causing a complaint or similar charge to be sought; and (3) arresting or causing or seeking the arrest of any person in connection with such victimization. All of these crimes are made a felony where the act is accompanied by force or an express or implied threat of violence upon a witness, victim, or the property of any witness, victim, or third person. (§ 136.1, subd. (c)(1).)" (People v. Hallock (1989) 208 Cal.App.3d 595, 606, italics added (Hallock).)

The statute provides, in relevant part:

"(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.

"(b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization.

"(c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person. [¶] (2) Where the act is in furtherance of a conspiracy. [¶] (3) Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section. [¶] (4) Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony.

"(d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section." (Italics added.)

It is settled that all section 136.1 offenses are specific intent crimes. (People v. Young (2005) 34 Cal.4th 1149, 1210; People v. Velazquez (2011) 201 Cal.App.4th 219, 229-230; People v. Brenner (1992) 5 Cal.App.4th 335, 339 (Brenner).) However, the subdivision (b) offenses do not require that the defendant act knowingly and maliciously. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320 (Upsher); People v. McElroy (2005) 126 Cal.App.4th 874, 881.)

Section 136.1 is part of "a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses." (People v. Fernandez (2003) 106 Cal.App.4th 943, 948 (Fernandez).) In order to avoid overlap in the application of these statutes, courts have limited these provisions to their specific language. (See, e.g., id. at p. 950; People v. Womack (1995) 40 Cal.App.4th 926, 931; Hallock, supra, 208 Cal.App.3d at p. 607.) In particular, some courts have suggested section 136.1, subdivision (b)(1) is limited to prearrest attempts to report a crime, thereby distinguishing it from section 137's application to attempts to influence the postarrest contents of a witness's testimony. (Fernandez, at pp. 948-950; Womack, at pp. 930-931; Hallock, at p. 607.)

II. FACTUAL AND PROCEDURAL BACKGROUND

In March 2016, the Contra Costa County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602) alleging Isaiah, who was then 16 years old, committed three counts of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)).

Under a "PC 136.1(c)(1) F" heading, the petition alleges in count one: "[Isaiah], a Minor, did commit a felony, a violation of . . . section 136.1(c)(1) (ATTEMPTING TO DISSUADE A WITNESS BY FORCE OR THREAT), committed as follows: [¶] On or about December 29, 2015, at Richmond, . . . [Isaiah] did attempt to force and to attempt by an express and implied threat of force and violence against the person and property of Edward Mendez, who was a witness, victim and third person, did knowingly, maliciously, and unlawfully try to prevent and dissuade Edward Mendez, who was a victim of and a witness to a crime from making a report of the victimization to a peace officer, a state and local law enforcement officer, a probation and parole officer, a prosecuting agency, and a judge." (Italics added.) Under a similar heading, the petition alleges in count two: "[Isaiah], a Minor, did commit a felony, a violation of . . . section 136.1(c)(1) (ATTEMPTING TO DISSUADE A WITNESS BY FORCE OR THREAT), committed as follows: [¶] On or about March 4, 2016, at San Francisco, . . . [Isaiah] did attempt to force and to attempt by an express and implied threat of force and violence against the person and property of Edward Mendez, who was a witness, victim and third person, did knowingly, maliciously, and unlawfully try to prevent and dissuade Edward Mendez, who was a victim of and a witness to a crime from attending and giving testimony at a trial, proceeding, and inquiry authorized by law; and causing a complaint, indictment, information, probation and parole violation to be sought and prosecuted, and assisting in the prosecution of the crime." (Italics added.) Count three alleged that on March 14, 2016, Isaiah committed the same offense charged in count two, in Richmond.

Isaiah moved in limine to require the People to elect "a theory of culpability." The prosecution responded that "certain counts can fall within a couple theories, and both are articulated in the petition. But . . . the petition itself is sufficient in its articulation, which one we're going with." The Honorable Rebecca Hardie agreed with the People that the petition provided adequate notice, "given how the various counts are pled." Shortly thereafter, a contested jurisdictional hearing was held. At the end of the hearing, Judge Hardie sustained counts one and two—finding Isaiah had violated section 136.1, subdivision (b)(2) in both instances.

The evidence showed that, on December 29, 2015, Isaiah and two other minors, a male and a 14-year-old female (S.F.), were observed shoplifting at a Macy's store in Richmond. The store's asset protection manager, Edward Mendez, contacted the minors, identified himself and, along with two store detectives, escorted the minors to the security office. At first, the minors were cooperative and respectful. Mendez contacted a family member to pick up Isaiah and was preparing to release him without prosecution.

Isaiah then became nervous and uneasy, and he refused to obey oral commands to stay in his seat. As Mendez approached Isaiah to handcuff him, S.F. took out a switch blade knife, opened the knife, pointed the blade at Mendez's face, and told him to "get back." At this point, Mendez called 911, and S.F. put the knife down. Surveillance video of a portion of the exchange in the security office was played and apparently showed escalating hostile behavior by both Mendez and the minors. An audio recording of the 911 call was admitted in evidence. During the 911 call, Mendez argued with the minors, telling them they were "going down." The dispatcher instructed Mendez to listen to her, to focus on the call, and to stop arguing with the minors.

The police arrived, Mendez signed a citizen's arrest form, and the police took S.F. into custody. Mendez testified Isaiah told him, after the knife had been brandished and the police had arrived, "You're a dead man walking." Mendez was fearful for his safety. A recording from a police officer's body camera was admitted in evidence and corroborated Mendez's testimony. Specifically, Isaiah could be heard on the recording to tell S.F., as she was being arrested, that he would "be at [her] court," and that "[Mendez is] a dead man walking." One of the officers responded, saying "You're on camera. Why are you saying that?" Later, while Isaiah was being led out of the office by a police officer, Isaiah looked at Mendez and again said, "You're a dead man walking."

On March 4, 2016, Mendez saw Isaiah near a San Francisco Macy's store. Mendez had just exited the store and walked about 20 feet when he heard, "Edward, Edward." Mendez turned around, and Isaiah said, "What's up now?" Mendez said, "What are you talking about?" Isaiah began walking towards Mendez, with about six other minors, and again said, "What's up now?" Mendez testified that he ultimately had to "kind of jump across the street . . . and [he] almost got hit by a car" because Isaiah's manner of approach was "so aggressive," as if Isaiah wanted to fight him. Mendez went back to the Macy's entrance. As Mendez approached the store entrance, Isaiah said, "You're a dead man walking" and "You're going to get yours." Mendez did not immediately notify San Francisco police of the incident, but eventually reported the incident to Richmond police.²

2 In his March 29, 2016 statement to police, Mendez stated only that Isaiah called his name and said, "What are you going to do now?" Mendez did not report the "dead man walking" comment.

Ten days later, on March 14, 2016, Mendez was at the Richmond Macy's store when he was notified by a coworker that "a big kid" was looking for him. Mendez reviewed security footage that showed Isaiah inside the store and peeking inside the employee entrance. Despite Isaiah making no direct contact on March 14, Mendez was scared and reported the incident to the Richmond Police Department the same day.

The prosecutor argued Isaiah's December 29 threat was intended to "warn [Mendez] that he cannot cooperate with law enforcement" regarding the theft offense or to "prevent [Mendez] from going to the police." As to count two, the prosecutor maintained Isaiah's March 4 threats were intended to prevent Mendez from "testifying or providing information for a complaint."

Defense counsel argued Isaiah should be acquitted of all three counts. With respect to count one, defense counsel argued Isaiah did not have the requisite specific intent. Defense counsel pointed out that the threats were made after the police had been called, which purportedly refuted the People's theory Isaiah was acting with intent to prevent a police report. Defense counsel also maintained Isaiah's December 29 and March 4 statements were mere reflections of his anger, not attempts to prevent Mendez from testifying. As to count three, defense counsel argued nothing threatening occurred on March 14, 2016. Both the prosecutor and defense counsel pointed Judge Hardie to CALCRIM Nos. 2622 and 2623.³

3 CALCRIM No. 2622 "encapsulates the five different wobbler offenses defined in section 136.1, subdivisions (a) and (b)." (People v. Torres, supra, 198 Cal.App.4th at p. 1142, fn. 7.) It does so by giving four alternative instructions, treating both subdivision (a) alternatives as variations on the same offense. The instruction bench notes also provide: "[S]ubdivision (c) provides a higher punishment if a violation of either subdivision (a) or (b) is done 'knowingly and maliciously,' and one of the other listed sentencing factors is proved. . . . [¶] If the defendant is charged with one of the sentencing factors in . . . section 136.1(c), give CALCRIM No. 2623 . . . ." (Judicial Council of Cal., Crim. Jury Instns. (2017) Bench Notes to CALCRIM No. 2622, p. 500.)
CALCRIM No. 2623 provides, in relevant part: "If you find the defendant guilty of intimidating a witness, you must then decide whether the People have proved the additional allegation that the defendant acted maliciously and used or threatened to use force. [¶] To prove this allegation, the People must prove that: [¶] 1. The defendant acted maliciously; [¶] AND [¶] 2. The defendant used force or threatened, either directly or indirectly, to use force or violence on the person or property of a witness or victim or any other person. [¶] A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way or intends to interfere in any way with the orderly administration of justice." (Italics omitted.)

Judge Hardie gave her ruling the following day. Count three was dismissed as not proven. However, Judge Hardie found Mendez's testimony "very credible" and observed Isaiah's December 29 comments "were captured on the audio recording of the body cam[era] worn by the officer who placed [S.F.] under arrest . . . . [¶] And Isaiah very clearly stated his intentions and his own mind set when he was talking to [S.F.] . . . . The threats [captured on the audio recording] were, 'He's a dead man walking.' . . . But as [Mendez] testified later, when Isaiah was arrested he repeated those threats to him." Instead of sustaining the remaining charged felony counts of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), the court found Isaiah had committed two wobbler counts of witness intimidation (§ 136.1, subd. (b)(2)), which the court described as lesser included offenses.

The court continued: "I disagree with the prosecution. Their theory of the case in terms of dissuading a witness—a witness to what? I think [the prosecutor] argued the petty theft. It's clear that's not the crime . . . that this dissuasion followed. It was when [S.F.] . . . was arrested for brandishing the knife. And that's what led [Mendez] to even call the police in the first place. It was not a petty theft issue. This is the brandishing issue. And Isaiah said, 'I will be at your court. I will be there. He's a dead man walking.' So that's really my analysis of the evidence . . . . [¶] So with that being said, I also am sustaining counts according to the proof presented in court. And what I find to be proven true are lesser included offenses to the [section] 136.1(c)(1) that's alleged in the petition. What I find proven true as it relates to conduct on or about December 29, 2015 . . . is that [Isaiah] committed a felony violation of . . . section 136.1(b)(2). And as it relates to Count 2, I find that he committed a separate violation of . . . section 136.1(b)(2), as a felony, as opposed to the [section] 136.1(c)(1). [¶] . . . I am dismissing Count 3 as not proven. But I do find proof beyond a reasonable doubt as to Counts 1 and 2 as amended according to proof presented in this matter." (Italics added.)

The matter was transferred for disposition to San Francisco, Isaiah's county of residence. At a dispositional hearing, the Honorable Linda Colfax declared Isaiah a ward and ordered formal probation in his mother's home with various terms and conditions. Isaiah filed a timely notice of appeal.

III. DISCUSSION

Isaiah maintains the juvenile court (1) violated the separation of powers doctrine and his due process rights by amending the petition sua sponte to conform to proof at the conclusion of the jurisdictional hearing; (2) made findings unsupported by substantial evidence; (3) construed the statute to violate the First Amendment; (4) improperly fragmented a single offense into two counts; (5) failed to designate his offenses as either misdemeanors or felonies; and (6) and imposed a vague and overbroad probation condition. A. Purported Amendment of the Petition

Isaiah raises various arguments on appeal that all share a common premise—Judge Hardie sustained offenses that were not pleaded in the wardship petition. Specifically, Isaiah insists Judge Hardie violated due process and the separation of powers doctrine by amending the petition sua sponte to add two new offenses, based on a new factual theory. To support his premise that the petition was amended, Isaiah points to the juvenile court having sustained section 136.1, subdivision (b)(2) offenses, rather than the charged offenses, and the juvenile court's finding Isaiah specifically intended to prevent Mendez from causing an accusatory pleading to be filed with regard to the brandishing offense, rather than a theft offense. The People disagree, asserting the juvenile court, in its role as trier of fact (Welf. & Inst. Code, § 702), did not amend the petition but merely properly sustained lesser and necessarily included offenses. Because the sustained subdivision (b)(2) offenses are necessarily included offenses of the charged subdivision (c)(1) offenses, we agree with the People that Isaiah's due process and separation of powers arguments are meritless.

First, we briefly address the People's contention Isaiah forfeited his arguments by failing to object to Judge Hardie's jurisdictional findings. (See People v. Cole (2004) 33 Cal.4th 1158, 1205 [objection to lack of notice of charges must be raised in trial court to preserve issue for appeal].) Isaiah maintains he had no warning or opportunity to object. We assume, without deciding, Isaiah's claims were preserved for appeal and turn to the merits. (See In re Alberto S. (1991) 226 Cal.App.3d 1459, 1466 [objection at time charges sustained affords juvenile court "an opportunity to correct its mistake and acquit the minor outright," but would not affect its jurisdiction to find the minor committed an uncharged offense].)

1. Due Process

"A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense." (In re Hess (1955) 45 Cal.2d 171, 174-175, italics added; In re Johnny V. (1978) 85 Cal.App.3d 120, 135-136.) "The basic reason for not permitting a defendant to be convicted of an offense not charged in the information as a lesser but necessarily included offense is that '[due] process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' [Citation.] [¶] The due process requirement that provides the basis for the inability of a court to convict a defendant of an uncharged offense not included as a lesser offense within the charged offense renders the court without jurisdiction to convict defendant of a different offense." (Johnny V., at p. 136, italics omitted; accord, Cole v. Arkansas (1948) 333 U.S. 196; People v. Lohbauer (1981) 29 Cal.3d 364, 369.) The same rule applies to juvenile proceedings. (In re Fernando C. (2014) 227 Cal.App.4th 499, 502-503; In re Gault (1967) 387 U.S. 1, 12.)

"In juvenile cases the provisions of the Code of Civil Procedure, not the Penal Code, apply to amendment of the petition [citations]), so long as those provisions comport with due process ([In re Robert G. (1982) 31 Cal.3d 437, 443])." (In re Man J. (1983) 149 Cal.App.3d 475, 480-481; accord, Welf. & Inst. Code, § 678.) In order to ensure due process, courts will look to the more restrictive amendment rules found in the Penal Code. (Man J., at p. 481.) This is consistent with due process, which " 'requires that a minor, like an adult, have adequate notice of the charge so that he may intelligently prepare his defense. [Citation.]' [Citation.] Compliance with this requirement has been held by the Supreme Court to mandate that the minor 'be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation.' " (Robert G., at p. 442.) Thus, "any amendment of the charging allegations in a delinquency petition is strictly limited once a minor has entered a plea of not guilty. In particular, absent the minor's consent, amendment during a contested hearing is only appropriate if an offense is ' "necessarily included" ' in the offense actually charged or is ' "a lesser offense which, although not necessarily included in the statutory definition of the offense, is expressly pleaded in the charging allegations." ' ([Id.] at pp. 442-443; [citations].)" (In re A.L. (2015) 233 Cal.App.4th 496, 499-500, italics omitted.)

The key question is whether the sustained subdivision (b)(2) offenses were necessarily included in the offenses charged in the wardship petition. If so, there is no due process issue. (In re Robert G., supra, 31 Cal.3d at pp. 442-443; People v. Birks (1998) 19 Cal.4th 108, 118 ["the stated charge notifies the defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information"]; People v. Barton (1995) 12 Cal.4th 186, 203.) Despite some ambiguity in the record, we agree with the People that Judge Hardie did not amend the wardship petition, but merely sustained what it characterized as "lesser included offenses."

Our starting point is the wardship petition and a determination of what offenses Isaiah was alleged to have violated. At some points in his briefing, Isaiah contends the petition alleges he violated section 136.1, subdivision (c)(1). At other points, he contends the petition "effectively" charged him with two violations of section 136.1, subdivision (b)(1). The People uniformly contend the petition alleges Isaiah violated section 136.1, subdivision (c)(1).

The two positions are similar to those raised in People v. Thomas (1987) 43 Cal.3d 818, wherein an adult defendant argued he was improperly convicted of involuntary manslaughter after being charged specifically with only voluntary manslaughter. (Id. at p. 824.) The prosecutor, on the other hand, contended the information "made out a general charge of manslaughter," from which the defendant "should have been on notice he faced a potential conviction of either type of manslaughter." (Ibid.) In resolving that dispute, Thomas makes clear a "valid accusatory pleading need not specify by number the statute under which the accused is being charged." (Id. at p. 826.) Rather, "it is the language of the accusatory pleading which is controlling and not the specification of the statute by number." (Id. at p. 831; see People v. Shoaff (1993) 16 Cal.App.4th 1112, 1117-1118 ["the specific factual allegations of a pleading . . . determine what offenses are charged"].) After examining the precise wording of the information, which included a reference to the statutory subdivision defining voluntary manslaughter and a stray reference to "willfully" (Thomas, at pp. 827-828), the court concluded the language of the pleading "adequately notified defendant he faced a general charge of manslaughter and he should have been prepared to defend against proof showing commission of either a voluntary or involuntary manslaughter." (Id. at p. 828.)

We recall that section 136.1, subdivision (b), provides: "Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization." Section 136.1, subdivision (c), provides: "Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person. [¶] (2) Where the act is in furtherance of a conspiracy. [¶] (3) Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section. [¶] (4) Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony."

Isaiah insists: "Since [count one] alleges dissuasion by preventing the making of a report to law enforcement, the charge was effectively based on section 136.1(b)(1), which refers to preventing reports to law enforcement, with the added feature of an allegation of a threat or force under subdivision (c)(1)." Although we agree that the allegations of count one mirror, in some respects, the language of section 136.1, subdivision (b)(1), we cannot agree Isaiah was charged with a subdivision (b)(1) offense. Under a "PC 136.1(c)(1) F" heading, the petition alleges in count one: "[Isaiah], a Minor, did commit a felony, a violation of . . . section 136.1(c)(1) (ATTEMPTING TO DISSUADE A WITNESS BY FORCE OR THREAT), committed as follows: [¶] On or about December 29, 2015, at Richmond, . . . [Isaiah] did attempt to force and to attempt by an express and implied threat of force and violence against the person and property of Edward Mendez, who was a witness, victim and third person, did knowingly, maliciously, and unlawfully try to prevent and dissuade Edward Mendez, who was a victim of and a witness to a crime from making a report of the victimization to a peace officer, a state and local law enforcement officer, a probation and parole officer, a prosecuting agency, and a judge." (Italics added.) Despite the inclusion of the latter italicized language, we cannot conclude count one alleged a violation of subdivision (b)(1) exclusively. Welfare and Institutions Code section 656, subdivision (f) requires a charging petition contain a concise statement of facts to support the conclusion that the minor is a person within the definition of Welfare and Institutions Code section 602. The language of count one adequately put Isaiah on notice he was charged with violating subdivision (c)(1) and should be prepared to defend against it and any necessarily included offenses.

With respect to count two, Isaiah's argument is wholly unpersuasive. Under a "PC 136.1(c)(1) F" heading, the petition similarly alleges in count two: "[Isaiah], a Minor, did commit a felony, a violation of . . . section 136.1(c)(1) (ATTEMPTING TO DISSUADE A WITNESS BY FORCE OR THREAT), committed as follows: [¶] On or about March 4, 2016, at San Francisco, . . . [Isaiah] did attempt to force and to attempt by an express and implied threat of force and violence against the person and property of Edward Mendez, who was a witness, victim and third person, did knowingly, maliciously, and unlawfully try to prevent and dissuade Edward Mendez, who was a victim of and a witness to a crime from attending and giving testimony at a trial, proceeding, and inquiry authorized by law; and causing a complaint, indictment, information, probation and parole violation to be sought and prosecuted, and assisting in the prosecution of the crime." (Italics added.) It is clear count two did not allege a violation of subdivision (b)(1), as Isaiah suggests. The allegation contains none of the statutory language. Again, count two alleged Isaiah violated subdivision (c)(1) and put him on notice he should be prepared to defend against it and any necessarily included offenses.

Judge Hardie sustained both counts one and two as violations of subdivision (b)(2). Thus, this brings us to consideration of whether subdivision (b)(2) offenses are necessarily included in subdivision (c)(1) offenses. The People urge us to answer the question in the affirmative, whereas Isaiah insists only subdivision (b)(1) is a necessarily included offense. Under California law for ensuring adequate notice, "a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks, supra, 19 Cal.4th at p. 117; accord, People v. Reed (2006) 38 Cal.4th 1224, 1231.) "Under the accusatory pleading test, a lesser offense is included within a greater ' " 'if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.' " ' " (In re Fernando C., supra, 227 Cal.App.4th at p. 503.)

Isaiah appears to be correct that, at least with respect to count one, the allegations of the wardship petition do not describe the offense in such a way that, if committed as specified, the lesser subdivision (b)(2) offense was also necessarily committed. This is not determinative, however, as the accusatory pleading test is only one alternative. Isaiah also argues that the subdivision (b)(2) wobbler offense is not a lesser included offense of the felony subdivision (c)(1) offense because the two have differing elements. The People disagree, arguing that all elements of a subdivision (b)(2) offense are included in the greater subdivision (c)(1) offense.

The case law shows the People have the better argument. (Upsher, supra, 155 Cal.App.4th at pp. 1319, 1321; Brenner, supra, 5 Cal.App.4th at p. 341.) In Brenner, a defendant was convicted of a felony subdivision (c)(1) offense. He argued, on appeal, that the trial court erred by failing to provide a sua sponte jury instruction on the then misdemeanor crime (§ 136.1, subd. (b)(1)),⁴ which he asserted was a lesser included offense. (Brenner, at p. 340.) The Second District Court of Appeal agreed, reasoning: "It is clear from the language of the two subsections that a felony violation of the statute under subdivision (c)(1) includes all the elements of a misdemeanor violation of subdivision (b)(1), plus the additional requirements that the act be done 'knowingly and maliciously' and that it be accompanied by force or by a threat of force or violence. The felony offense cannot be committed without committing the misdemeanor offense." (Brenner, at p. 341.)

4 Brenner, supra, 5 Cal.App.4th 335 considered a pre-1998 version of the statute in which subdivisions (a) and (b) were straight misdemeanor offenses. Subdivisions (a) and (b) were later revised to provide for alternative felony-misdemeanor punishment. (Upsher, supra, 155 Cal.App.4th at p. 1321 & fn. 5; People v. McElroy, supra, 126 Cal.App.4th at pp. 880-881.)

Upsher, supra, 155 Cal.App.4th 1311, considered a defendant's argument he could not be convicted of both a subdivision (c)(3) offense and a subdivision (b)(1) offense because the latter offense was necessarily included in the former. (Id. at pp. 1315, 1319.) The Fourth District agreed and struck the subdivision (b)(1) offense. (Id. at pp. 1319, 1331.) The Upsher court relied on Brenner and reasoned: "Section 136.1, subdivision (c)(3) makes the offense in subdivision (b)(1) a felony where the person undertakes the acts of dissuasion knowingly and maliciously, and '[w]here the act is committed by any person who has been convicted of any violation of this section . . . .' (§ 136.1, subd. (c)(3).) [¶] It is plain from the language of the two subdivisions that a violation under section 136.1, subdivision (c)(3) includes all of the elements of the violation of section 136.1, subdivision (b)(1), with the additional requirement that the defendant act 'knowingly and maliciously.' " (Upsher, at pp. 1320-1321.)

Isaiah contends Upsher and Brenner were wrongly decided "because subdivision (c)(1) can be violated without also necessarily violating subdivision (b)(2) since not all acts of dissuasion involve preventing prosecution of the specified accusatory pleadings." He also submits the statutory elements test is not met because "while a violation of subdivision (c) must be based on conduct that violates some provision within subdivisions (a) or (b), it could not reasonably violate all of the provisions of subdivisions (a) and (b)." The argument is of no force because it has no relevance to the statutory elements test. We consider whether the statutory elements of the greater offense (subdivision (c)(1)) includes all the elements of the lesser offense (subdivision (b)(2)). (People v. Birks, supra, 19 Cal.4th at p. 117.) Our review of the statute shows that subdivision (c)(1) includes all of the elements of subdivision (b)(2), with two additional elements—that the defendant act "knowingly and maliciously" and that the defendant's act "is accompanied by force or by an express or implied threat of force."

Isaiah presents no persuasive reason we should not follow Upsher and Brenner. At the time of the contested jurisdiction hearing, Isaiah was on notice of the need to defend the elements of a subdivision (c)(1) offense as well as any of its lesser included offenses, including a subdivision (b)(2) offense. Accordingly, there was no due process violation.⁵ (In re A.L., supra, 233 Cal.App.4th at p. 504.) Contrary to Isaiah's assertion, the juvenile court's power to sustain lesser included offenses was not limited even if the People limited their argument to the charged offenses. (See People v. Birks, supra, 19 Cal.4th at p. 127 ["neither party need request [lesser included offense] instructions, and neither party can preclude them, because neither party has a greater interest than the other in gambling on an inaccurate all-or-nothing verdict when the pleadings and evidence suggest a middle ground" (italics omitted)].)

5 None of the opinions on which Isaiah relies are on point because they do not involve necessarily included offenses. (See Sheppard v. Rees (1989) 909 F.2d 1234, 1236-1237 [information's general allegation of murder, without any robbery allegation, insufficient to put defendant on notice he may have to defend against charge of felony-murder]; People v. Simpson (2014) 223 Cal.App.4th Supp. 6, 9-10 [trial court exceeded statutory authority and violated separation of powers by sua sponte amending complaint to add charge and finding defendant guilty of both original and newly added infractions]; In re Johnny R. (1995) 33 Cal.App.4th 1579, 1584-1585 [juvenile court erred by sustaining petition on new weapons charge (former § 12020) not included in charged offense of assault with a deadly weapon (§ 245, subd. (a)(1))]; In re Alberto S., supra, 226 Cal.App.3d at pp. 1463-1465 [juvenile court lacked jurisdiction to sustain petition on new sexual battery charge not included in charged offense of rape].)

2. Separation of Powers

Isaiah's separation of powers argument is no more compelling. The California Constitution provides: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (Cal. Const., art. III, § 3.)

The Constitution "vest[s] each branch with certain 'core' [citation] or 'essential' [citation] functions that may not be usurped by another branch." (People v. Bunn (2002) 27 Cal.4th 1, 14.) "[T]he legislative branch bears the sole responsibility and power to define criminal charges and to prescribe punishment, it is the executive branch which decides which crime to charge and the judicial branch which imposes sentence within the legislatively determined limits for the chosen crime." (People v. Mikhail (1993) 13 Cal.App.4th 846, 854.) "Judicial power is in the courts and their function is to declare the law and determine the rights of parties to a controversy before the court." (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1235.) "It is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring." (People v. Birks, supra, 19 Cal.4th at p. 134.) The prosecuting attorney similarly "has the sole discretion to file a petition under section 602." (Cal. Rules of Court, rule 5.520(a).) However, "when the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 517.)

Here, there is no separation of powers issue. It was the district attorney's office that exercised its discretion and determined Isaiah should be the subject of a wardship proceeding, and that he should be charged with violating section 136.1, subdivision (c)(1). By exercising its discretion in this manner, the People by definition also charged Isaiah with the elements of every lesser offense necessarily included therein. (People v. Birks, supra, 19 Cal.4th at pp. 118, 135, fn. 18.) Thus, the wardship petition set forth not only charges under section 136.1, subdivision (c)(1), but also charges under subdivision (b). (Upsher, supra, 155 Cal.App.4th at pp. 1319, 1321; Brenner, supra, 5 Cal.App.4th at p. 341.) The juvenile court only disposed of charges the prosecution had chosen to submit. (Romero, supra, 13 Cal.4th at p. 517.) Isaiah has shown no violation of the separation of powers doctrine.

3. Purported Amendment to Change Theory from Theft to Brandishing

In the alternative, Isaiah maintains Judge Hardie's jurisdictional findings must be reversed because he was not on notice the People would rely on Mendez's status as a victim of the brandishing offense, rather than a theft offense. Although Isaiah does not articulate the argument particularly clearly, he appears to contend the People were bound by an election of theory made in the petition, at the outset of trial, or in their argument at the close of evidence. The question appears to be whether the allegations Isaiah violated section 136.1, subdivision (c)(1), in counts one and two, were sufficient to put him on notice that he must defend against a charge of dissuading a witness or victim to the brandishing offense, rather than the theft offense. We agree with the People that there was no election. Because the petition itself does not identify the particular offense Mendez was a witness or victim to, but simply put him on notice that he needed to defend his December 29 and March 4 attempts to dissuade "Mendez, who was a victim of and a witness to a crime," Isaiah's argument fails.

Here, Isaiah could not have been surprised by the theory ultimately believed by the juvenile court in that he knew the petition was predicated on his threats to Mendez, on December 29 and March 4, and Mendez's status as a victim and witness to "a crime." "While a juvenile does not have the right to a preliminary hearing, he does have other avenues available to learn more detail about the charge in addition to the petition." (In re Jesse P. (1992) 3 Cal.App.4th 1177, 1182; accord, Cal. Rules of Court, rules 5.546(b) [petitioner has duty to disclose police, arrest, crime reports after filing petition], 5.546(d)(2) [after timely request, petitioner must disclose records of statements by minor].) From the body camera recording and police reports, Isaiah would have known Isaiah's threats came after the brandishing, after S.F.'s arrest for brandishing, and after his specific statements to S.F. that he would "be at [her] court."

It is true Isaiah moved in limine for the People to elect a "theory of culpability" and the People argued, at the close of evidence, Mendez was a victim and witness to only a theft offense. Had the prosecution made an election, "under circumstances where a unanimity instruction would otherwise have been required," we might be bound thereby. (People v. Brown (2017) 11 Cal.App.5th 332, 341; see id. at pp. 341-342 [considering whether reviewing court is limited to People's elected factual theory on substantial evidence challenge].) However, to the extent Isaiah was asking the People to elect the crime which Isaiah intended to dissuade Mendez from reporting or assisting in prosecuting, election and jury unanimity principles do not apply. "The doctrine of election protects two procedural rights of the criminal defendant in cases where the evidence tends to show a larger number of offenses than have been charged; the right to a unanimous jury verdict and the right to be advised of the charges." (People v. Salvato (1991) 234 Cal.App.3d 872, 878 (Salvato).) Theft and brandishing are not multiple criminal acts in the context of this case, they are merely different theories relevant to Isaiah's intent. "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed . . . , the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, we are left with the general rule: " '[T]he prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the [factfinder].' " (Brown, at p. 341.) There was no binding election. B. Substantial Evidence

Isaiah challenges Judge Hardie's true findings on both counts, asserting they are unsupported by substantial evidence. Specifically, Isaiah asks us to narrowly construe section 136.1, subdivision (b)(2) and maintains S.F.'s status as a minor, and the concomitant fact that her brandishing offense would be prosecuted in juvenile court, means that he did not attempt to prevent or dissuade a victim or witness from "[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof." (§ 136.1, subd. (b)(2), italics added.) He contends that, at most, the evidence shows that only a juvenile proceeding was contemplated.

We review questions of statutory interpretation de novo. (County of Alameda v. Pacific Gas & Electric Co. (1997) 51 Cal.App.4th 1691, 1698.) "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But '[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' [Citations.] Thus, '[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.' [Citation.] . . . [W]e do not construe statutes in isolation, but rather read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' " (People v. Pieters (1991) 52 Cal.3d 894, 898-899.)

We do not insert words into a statute as such would "violate the cardinal rule that courts may not add provisions to a statute." (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827.) Nor are we permitted to rewrite the statute to conform to an assumed intent that does not appear from its plain language. (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381.) We assume the Legislature, in enacting a new law, is aware of existing laws and judicial decisions. (People v. Hernandez (1988) 46 Cal.3d 194, 201; cf. People v. Weidert (1985) 39 Cal.3d 836, 844 (Weidert).) If there is any ambiguity, we must be mindful of the " 'rule of lenity' ": "language in a penal statute that truly is susceptible of more than one reasonable construction in meaning or application ordinarily is construed in the manner that is more favorable to the defendant." (People v. Canty (2004) 32 Cal.4th 1266, 1277; accord, Weidert, at p. 848.)

We are not the first to construe this statutory subdivision. "To prove the crime of dissuading a witness from prosecuting a crime in violation of section 136.1, subdivision (b)(2), the prosecution must establish that the defendant, with the specific intent to do so, dissuaded or attempted to dissuade a witness or victim from '[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.' " (People v. Velazquez, supra, 201 Cal.App.4th at pp. 229-230, italics added.) "[U]nder section 136.1, subdivision (b)(2), the perpetrator must attempt to prevent a person from causing a charging document to be sought and prosecuted and from assisting in the prosecution. Thus, the prevention must occur before the relevant charging document has been filed." (People v. Brown, supra, 6 Cal.App.5th at p. 1082, italics omitted & added.)

Isaiah's statutory construction argument has some merit. Quite plainly, subdivision (b)(2) does not refer to wardship petitions or "any other authorized proceedings." The People do not directly address the statutory language found in subdivision (b)(2). Instead they obliquely argue that subdivision (b)(2) "may be broadly read" and that "the prosecution of a delinquency or wardship petition in juvenile court is an authorized prosecution because a petition is the juvenile law version of a criminal complaint or information." (Italics added.) Weidert, and opinions narrowly construing other portions of the instant statutory scheme, counsel against such an approach. (See Weidert, supra, 39 Cal.3d at pp. 844-846; Fernandez, supra, 106 Cal.App.4th at p. 950; People v. Womack, supra, 40 Cal.App.4th at p. 931; Hallock, supra, 208 Cal.App.3d at p. 607.)

In Weidert, our high court considered an analogous question—whether a subdivision of California's death penalty statute (former § 190.2, subd. (a)(10)), which referred exclusively to "criminal" proceedings, applied to an individual who intentionally kills a witness to prevent his or her testimony in juvenile proceedings.⁶ (Weidert, supra, 39 Cal.3d at pp. 840, 843.) The defendant was convicted of special circumstances murder after killing a witness to a burglary that the defendant had committed at age 17. (Id. at pp. 840-842.) The defendant unsuccessfully moved to strike the special circumstance allegation because there was no evidence the dead witness was intentionally killed for the purpose of preventing his testimony "in a criminal proceeding, since the evidence at most established only that a juvenile proceeding had been contemplated." (Id. at p. 852; see id. at p. 842.)

6 At the time, former section 190.2, subdivision (a)(10) subjected "an individual to a sentence of death or life imprisonment without the possibility of parole if the victim 'was a witness to a crime who was intentionally killed for the purpose of preventing his testimony in any criminal proceeding . . . .' " (Weidert, supra, 39 Cal.3d at p. 843, italics omitted.) After Weidert, Proposition 115 amended the section so that it now expressly refers to killing a witness to a crime who was intentionally killed to prevent his or her testimony in any "criminal or juvenile proceeding." (§ 190.2, subd. (a)(10).)

Our Supreme Court held the plain language of the statute governed. (Weidert, supra, 39 Cal.3d at p. 845.) Weidert explained: "For over 20 years, California law has provided that '[a]n order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.' (Welf. & Inst. Code, § 203, italics added.) The plain fact is that the electorate, deemed aware of section 203, enacted a provision which contains no language applicable to juvenile proceedings. [¶] . . . [¶] The electors are also deemed to have been aware of provisions similar to subdivision (a)(10) whose application is not nearly so narrow. For example, section 137, which prohibits bribing a witness to influence his testimony, applies to 'any witness.' [Former] [s]ection 136½, which prohibits bribing a witness to dissuade him from testifying, applies to 'any witness' in 'any trial or other judicial proceeding.' Section 132 makes it unlawful to offer false evidence 'upon any trial, proceeding, inquiry, or investigation whatever authorized by law. . . .' . . . [¶] Subdivision (a)(10)'s qualifying language stands in marked contrast to these statutes." (Weidert, at pp. 844-846, fn. omitted.)

But this was not the end of Weidert's analysis. The statute's reference to killing for the purpose of preventing a victim from testifying in a criminal proceeding referred to the defendant's subjective intent, so that if the defendant "believes himself to be exposed to criminal prosecution and intentionally kills another to prevent that person from testifying in an anticipated or pending criminal proceeding," the circumstance could be established, even if only a juvenile proceeding had been actually contemplated or undertaken. (Weidert, supra, 39 Cal.3d at pp. 853-854.) "[T]he special circumstance may be found true whether or not an actual criminal proceeding was pending or about to be initiated. . . . '[The] only relevance of an actual prior and ongoing criminal proceeding is that it may strengthen the inference of the existence of the prescribed purpose; conversely, the prosecution does not have the benefit of this inference when a criminal proceeding has not yet commenced." (Id. at pp. 853-854, italics added.) Because the trial court had erroneously denied the defendant's motion to strike on the grounds "juvenile prodeedings" were included in the statute, the jury had not been properly instructed that it was necessary to find the appellant had killed the witness for the purpose of preventing him from testifying in a criminal proceeding. Thus, the special circumstance finding was reversed, and the matter was remanded for resolution of the proper question. (Id. at p. 854 & fn. 14.)

Currently, after the passage of Proposition 57 in November 2016, direct filing has been eliminated.⁷ " 'Certain categories of minors . . . can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. (Welf. & Inst. Code, § 707, subd. (a)(1).)' " (Lara, supra, ___ Cal.5th at p. ___ [2018 Cal.Lexis 726, at pp. *6].) In 1980, when section 136.1 was enacted (People v. Wahidi (2013) 222 Cal.App.4th 802, 807, California law was essentially the same as it is today. At that time, " 'a child could be tried in criminal court only after a judicial determination, before jeopardy attached, that he or she was unfit to be dealt with under juvenile court law. . . . The general rule used to be that 'any individual less than 18 years of age who violates the criminal law comes within the jurisdiction of the juvenile court, which may adjudge such an individual a ward of the court.' " (Lara, at pp. ___ [2018 Cal.Lexis 726, at pp. *5-*6].)

7 At the time of Isaiah's conduct, the law was different. "[I]n specified circumstances, prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in criminal court, where the juvenile would be treated as an adult." (People v. Superior Court (Lara) (Feb. 1, 2018, S241231) ___ Cal.5th ___, ___ [2018 Cal.Lexis 726, at p. *6]; accord, Welf. & Inst., former §§ 602, subd. (b), 707, subd. (d).)

Thus, here, as in Weidert, we can assume the Legislature was aware that "any person who is under 18 years of age when he violates any law of this state . . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court." (Welf. & Inst. Code, former § 602.) We can also assume the Legislature knew juvenile wardship proceedings are initiated by petition, not complaint, indictment, or information. (See Lara, supra, ___ Cal.5th at pp. ___ [2018 Cal.Lexis 726, at pp. *7-*8]; Welf. & Inst. Code, former § 603, subd. (a) ["[n]o court shall have jurisdiction to conduct a preliminary examination or to try the case of any person upon an accusatory pleading charging the person with the commission of a public offense or crime when the person was under the age of 18 years at the time of the alleged commission thereof unless the matter has first been submitted to the juvenile court by petition . . . and the juvenile court has made an order directing that person be prosecuted under the general law"].) Nevertheless, the Legislature failed to include Welfare and Institutions Code section 602 petitions in subdivision (b)(2)'s enumerated accusatory pleadings.

We agree with Isaiah that it is not our role to give the statutory language a broader reading than its plain language will allow, especially when the Legislature has used more general language elsewhere in the statutory scheme, but omitted it in subdivision (b)(2). (Compare § 136.1, subd. (b)(2) with §§ 136.1, subd. (a)(2) [penalizing "attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law" (italics added)], 138, subd. (a) [penalizing bribes "upon any understanding or agreement that the person shall not attend upon any trial or other judicial proceeding" (italics added)].) "Where the Legislature makes express statutory distinctions, ' "we must presume it did so deliberately, giving effect to the distinctions, unless the whole scheme reveals the distinction is unintended. This concept merely restates another statutory construction canon: we presume the Legislature intended everything in a statutory scheme, and we should not read statutes to omit expressed language or include omitted language." ' " (In re Dakota H. (2005) 132 Cal.App.4th 212, 225-226.) It thus appears that the Legislature did not intend subdivision (b)(2) to apply to defendants who act with the subjective intent to attempt to dissuade witnesses from assisting with and causing the initiation of juvenile wardship proceedings.

We nonetheless conclude the juvenile court's jurisdictional findings are supported by substantial evidence. Our review of Isaiah's substantial evidence claim is governed by the same standard applicable to adult criminal cases. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.) When faced with a substantial evidence challenge, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) The standard of review is the same when the prosecution relies on circumstantial evidence. (People v. Thomas (1992) 2 Cal.4th 489, 514.) " 'This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.' " (Ryan N., at p. 1372.)

Unlike in Weidert, there is no indication in this case that the factfinder applied an incorrect construction of the law. The juvenile court is presumed to know the law (Evid. Code, § 664; People v. Holt (1997) 15 Cal.4th 619, 683), and nothing in the record suggests the juvenile court misunderstood the plain language of the statute. (See CALCRIM No. 2622.) Isaiah argues it would be impossible for him "to prevent the filing of [a complaint, indictment, information, probation or parole violation] because a proceeding against a 14-year-old . . . for brandishing would not take place in the criminal court since it is not a [Welfare and Institutions Code,] section 707(b) offense. Nor was there any evidence of a proceeding for brandishing in any event." The People do not contest this point. Thus, it is undisputed that even in early 2016, because of S.F.'s age and offense, the district attorney could not have filed an information or complaint in adult court charging S.F. with brandishing. (See Juan G. v. Superior Court (2012) 209 Cal.App.4th 1480, 1488-1490.)

What Isaiah overlooks is that what is relevant, under subdivision (b)(2), is not whether a complaint, indictment, information, or any other charging document actually is filed or contemplated, it is whether the defendant acted with the specific intent to prevent or dissuade the witness from "causing a complaint, indictment, information . . . to be sought and prosecuted, and assisting in the prosecution thereof." (§ 136.1, subd. (b)(2).) Just as the relevant fact under former section 190.2, subdivision (a)(10), was that the defendant believes he or she is exposed to criminal prosecution, not that actual criminal proceedings are pending or contemplated (Weidert, supra, 39 Cal.3d at pp. 853-854), the relevant question here is whether substantial evidence supports an implicit finding Isaiah acted with the subjective intent to dissuade Mendez from "[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof." (§ 136.1, subd. (b)(2).) The circumstances in which the defendant's statement is made, not just the statement itself, must be considered to determine whether the defendant acted with the requisite intent. (People v. Wahidi, supra, 222 Cal.App.4th at p. 806; People v. Thomas (1978) 83 Cal.App.3d 511, 514.) "If the defendant's actions or statements are ambiguous, but reasonably may be interpreted as intending to achieve the future consequence of dissuading the witness . . . , the offense has been committed." (Wahidi, at p. 806.) "There is . . . no talismanic requirement that a defendant must say 'Don't testify' or words tantamount thereto . . . . As long as his words or actions support the inference that he [acted with the requisite intent under the statute]." (Thomas, at p. 514.)

Isaiah told S.F., at the time of her arrest for brandishing, that he would "be at [her] court" and that Mendez was "a dead man walking." Isaiah asks us to assume that, at the time he made these statements to S.F. and made his statement to Mendez, he knew no complaint, indictment, or information would be filed against S.F. because she was a minor, and his statements reflected only anger. He points out that his statement to Mendez did not make any explicit reference to charging documents, any prosecution, nor was it uttered during or near court proceedings. "Under the substantial evidence rule, . . . we must draw every reasonable inference favorable to the judgment." (People v. Brown, supra, 6 Cal.App.5th at p. 1084, italics added.) It is reasonable to infer that Isaiah, who had just witnessed S.F. being arrested and told her he would "be at [her] court", believed a complaint or information could be filed against S.F. A rational fact finder could infer that it was this intent—to dissuade Mendez from causing such a charging document from being filed and assisting in S.F.'s eventual prosecution—that motivated his subsequent statements to Mendez on December 29 and March 4, "You're a dead man walking" and "You're going to get yours." The record is silent regarding any prosecution of S.F. Although such evidence might have strengthened the inference the juvenile court drew, its absence is not determinative. We conclude substantial evidence supports the juvenile court's finding on counts one and two. C. First Amendment

In the alternative, Isaiah contends count one must be reversed because his First Amendment rights were infringed, in that the People did not show his words were spoken with sufficient gravity of purpose. He insists that Judge Hardie's rejection of the People's subdivision (c)(1) allegation "substantially undermines, if not precludes, such a finding."

Isaiah relies on the elements of a distinct crime. To establish the crime of making a criminal threat (§ 422), the People are required to show the threat is "so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat." (People v. Bolin (1998) 18 Cal.4th 297, 337; accord, In re George T. (2004) 33 Cal.4th 620, 634; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136-1137.) However, Isaiah points to no authority (and we know of none) suggesting the same is an element of dissuading a witness.

Isaiah did not raise a First Amendment objection below. To the extent he is raising a constitutional challenge to section 136.1, subdivision (b)(2) itself, we may address the argument for the first time on appeal if it is based on undisputed evidence. (People v. Navarro (2013) 212 Cal.App.4th 1336, 1347-1348, fn. 9.) Again, Isaiah's argument fails on the merits.

People v. Navarro, considered such a facial challenge to section 136.1, subdivision (b)(1), on the ground it impermissibly inhibits free speech. (Navarro, supra, 212 Cal.App.4th at pp. 1348-1349.) The challenge was rejected, in large part due to the statute's "focus on the mental state of the perpetrator and his or her intent to affect or influence a potential witness's or victim's report," which "limits the statute's reach by distinguishing culpable conduct from innocent conversation and restrains use of its provisions to inhibit protected speech." (Id. at p. 1351.) Accordingly, "[o]rdinary citizens discussing the criminal justice system and the pros and cons of becoming involved in a police investigation would not run afoul of the law." (Id. at p. 1352, fn. omitted.) Isaiah wholly fails to address Navarro and, accordingly, we reject his First Amendment challenge. D. Continuing Offense or Two Separate Offenses?

Isaiah submits the judgment must be reversed as to one of the counts because a single, continuing offense was improperly fragmented into two counts. Although the two counts were based on separate statements Isaiah made to Mendez on days separated by several months, Isaiah insists only one of these sustained counts can stand because the prosecution was required to charge his attempts to dissuade Mendez as one continuing crime. Again, despite the People's argument to the contrary, we proceed to the merits, assuming for the sake of argument, that Isaiah's current arguments were not forfeited by his failure to raise them before the juvenile court.⁸

8 Because we reach the merits of this issue, we need not address Isaiah's alternative argument that his trial counsel was ineffective.

We agree with the People that section 954 and People v. Kirvin (2014) 231 Cal.App.4th 1507 (Kirvin) foreclose Isaiah's argument. "[T]he same act can support multiple charges and multiple convictions. 'Unless one offense is necessarily included in the other [citation], multiple convictions can be based upon a single criminal act or an indivisible course of criminal conduct (§ 954).' " (People v. Gonzalez (2014) 60 Cal.4th 533, 537.) "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, and each offense of which the defendant is convicted must be stated in the verdict . . . ." (§ 954.)⁹

9 Section 954 provides: "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, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. 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, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count."

Whether convictions for multiple counts of the same statutory offense are proper under section 954 depends on whether the defendant engaged in multiple completed crimes as determined by the statutory elements. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1477.) If the defendant committed multiple completed crimes under the same statute, the prosecution may properly charge each completed offense as a separate count, even if the defendant had the same intent and objective in committing the multiple crimes and even if the defendant committed the crimes at or near the same time. (Id. at pp. 1473-1477.)

Kirvin, supra, 231 Cal.App.4th 1507, addressed the precise argument Isaiah submits. In Kirvin, the defendant was charged with multiple counts of violating section 136.1, subdivision (b)(2), based on separate phone calls made to his sister, on the same day, urging her to convince a prosecution witness " 'not to come to court.' " (Kirvin, at p. 1511.) The defendant was convicted of six counts of attempting to dissuade a witness. (Id. at pp. 1510, 1513.) Kirvin recognized our Supreme Court had created, in People v. Bailey (1961) 55 Cal.2d 514 (Bailey), an exception to section 954's general rule allowing for multiple convictions, under which a defendant of certain crimes could "insist upon the dismissal of all but one conviction when multiple crimes are unified by a single intent." (Kirvin, at p. 1517.) However, the Bailey exception had no application to the offense of attempted dissuasion of a witness and "as a result, a defendant may be convicted of multiple crimes—even if the crimes are part of the same impulse, intention or plan—as long as each conviction reflects a completed criminal act." (Id. at pp. 1518- 1519.) The crime of attempted dissuasion of a witness was completed once the defendant took an immediate step toward having his sister attempt to dissuade the witness from assisting in the prosecution. Thus, "[a] separate violation of section 136.1, subdivision (b)(2) was completed each time [the d]efendant placed a call to his sister urging her to persuade [the witness] not to go to court. As a result, whether each of [the defendant's] calls was directed toward the same goal is irrelevant." (Kirvin, at p. 1519.)

Isaiah contends Salvato, supra, 234 Cal.App.3d 872, should govern our analysis, rather than Kirvin. In Salvato, the defendant made a series of threats to kill his estranged wife if she did not agree to a favorable property settlement in their divorce. (Id. at p. 876.) The defendant was charged with two counts of violating section 136.1, one count was based on conduct during a specified period in 1988, and the other was based on conduct occurring during a specified period in 1989. (Id. at p. 878.) At the beginning of trial, defense counsel moved for an election of the specific acts the People would rely on. The trial court denied the motion, the jury was given a unanimity instruction, and the defendant was convicted on both counts. (Ibid.)

The question on appeal was whether, despite having charged the defendant with attempting to dissuade a witness over a period of time and having given a unanimity instruction, the prosecution was nevertheless required to identify specific acts for each count. (Salvato, supra, 234 Cal.App.3d at pp. 878-883.) A previous presiding justice of this Division held that no such election was required because the crime of attempting to dissuade a witness met the exception for offenses contemplating a continuous course of conduct over time. (Id. at pp. 882-883.) "The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end. 'Prevent' and 'dissuade' denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal. Thus it falls within the continuous conduct exception, and no election or unanimity instruction was required." (Salvato, at p. 883.)

Salvato answered a completely different question than that posed by Isaiah's appeal. We agree with the Kirvin court that "[t]he question in Salvato was whether a defendant charged with attempting to dissuade a witness over a period of time was entitled to have the People specify (or elect) which specific acts the People intended to prove at trial. ([Salvato, supra, 234 Cal.App.3d] at pp. 878-883.) Salvato held that no specification was required because the crime of attempting to dissuade a witness fit within one of the exceptions to the rule mandating election—namely, the exception for offenses contemplating a continuous course of conduct over time. (Id. at pp. 882-883.) But the question [in Kirvin as well as here] is whether the People—having charged specific acts on specific dates (rather than over a time period)—are effectively required to allege only one continuous crime of attempted dissuasion." (Kirvin, supra, 231 Cal.App.4th at p. 1519, italics omitted.) Salvato does not address this issue. An opinion is not authority for propositions not considered. (People v. Knoller (2007) 41 Cal.4th 139, 154-155.)

Isaiah attempted to dissuade Mendez from assisting in S.F.'s prosecution by making distinct threatening statements, on two dates separated by several months. Because one offense was completed on December 29 and one offense was completed on March 4, we agree with the People that both sustained counts may stand. (Kirvin, supra, 231 Cal.App.4th at pp. 1519-1520.)

Isaiah also contends multiple adjudications violate double jeopardy principles and the separation of powers doctrine. We address Isaiah's double jeopardy argument, briefly, below. We do not address Isaiah's conclusory argument that Judge Hardie violated the separation of powers doctrine by sustaining multiple counts, as charged in the wardship petition. Isaiah has forfeited the argument by failing to support it with reasoned analysis. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

"The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' " (Brown v. Ohio (1977) 432 U.S. 161, 165.) "The first two categories of protection afforded by the double jeopardy clause, by their express terms, are clearly not implicated [when] we are directly concerned only with multiple convictions in a unitary trial, not multiple punishments in successive unrelated criminal proceedings. Likewise, with regard to the third category of double jeopardy protection—the prohibition of 'multiple punishments for the same offense' (ibid.)—the Supreme Court has made clear that '[t]he [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense . . . [citations] . . . and then only when such occurs in successive proceedings, see Missouri v. Hunter, 459 U.S. 359, 366 (1983).' (Hudson v. United States (1997) 522 U.S. 93, 99, italics added [&] omitted.)" (People v. Sloan (2007) 42 Cal.4th 110, 121.) Because Isaiah fails to discuss Sloan or the underlying federal authority, and fails to explain how his argument survives these holdings, he has not met his burden to show a double jeopardy violation. E. Designation as Felony Offenses

Isaiah next submits the juvenile court abused its discretion by failing to classify his wobbler offenses as misdemeanors. Welfare and Institutions Code section 702 states, in relevant part: "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." This statute imposes a mandatory duty on the juvenile court to make the requisite declaration either at the jurisdiction hearing or at disposition. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204; see Cal. Rules of Court, rules 5.780(e)(5), 5.795(a).) The juvenile court is not required to state its reasons for the declaration; "all that is necessary for the record on review is a declaration by the court as to whether the offense is a misdemeanor or a felony." (In re Jacob M. (1989) 210 Cal.App.3d 1178, 1181-1182.) Where a juvenile court fails to make such a designation, the matter need not be remanded where the record shows that "the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler." (Manzy W., at p. 1209; In re Kenneth H. (1983) 33 Cal.3d 616, 621.)

It is undisputed Isaiah's offenses are wobblers alternatively punishable as misdemeanors or felonies. (§ 136.1, subd. (b)(2); People v. McElroy, supra, 126 Cal.App.4th at p. 880.) All three counts were charged as felonies. Isaiah focuses on the transcript from the disposition hearing, asserting it is silent as to whether Judge Colfax was aware of her authority to declare the offenses misdemeanors. This argument is neither here nor there. At the jurisdictional hearing, Judge Hardie expressly recognized her discretion to declare the wobblers either felonies or misdemeanors. After recognizing such authority, she made an express oral declaration, also reflected in her jurisdiction minute order, that both sustained offenses were felonies. Specifically, Judge Hardie expressed concerns about Mendez's apparent lack of insight regarding the escalation occurring on December 29, also stating that, had the December 29 encounter been the only incident, it might have been inclined "to reduce count [one] to a misdemeanor because I do have the discretion." However, Isaiah's intent was very "concerning," given that after the initial exchange he had two months to calm down and nevertheless was "very threatening and intimidating in the manner in which [he] approach[ed] [Mendez on March 4]."

Juvenile courts exercise discretion to decide whether a wobbler should be treated as a felony or misdemeanor. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [discussing § 17, subd. (b)].) The court's exercise of such discretion is "an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration." (Id. at pp. 981-982.) "[T]hose factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' " (Id. at p. 978.) On appeal, the burden is on the appellant " 'to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination . . . will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree.' " (Id. at pp. 977-978.)

Isaiah makes a conclusory suggestion Judge Hardie abused her discretion. Contrary to Isaiah's position, Judge Hardie did not deem the offenses felonies because there were two. Rather, Judge Hardie explained her decision not to declare the offenses misdemeanors was based on the nature of Isaiah's conduct and the seriousness of his intent. We cannot second guess that decision. Isaiah has failed to meet his burden to show the juvenile court acted irrationally or arbitrarily by failing to designate the offenses as misdemeanors. F. Probation Condition

One condition of Isaiah's probation is that he is "not to possess any dangerous or deadly weapons of any kind. Which means no guns, no ammunition, no knives, nothing that looks like a weapon, nothing you intend to use as a weapon, and nothing that someone else might look at and perceive to be a weapon."¹⁰ Isaiah argues this probation condition is vague and unconstitutionally overbroad.¹¹

10 Judge Colfax's minute order provides: "[Isaiah] shall [¶] . . . [¶] [n]ot . . . knowingly possess dangerous or deadly weapons of any kind, which means [he is] to possess no firearms of ANY kind which means no guns, ammunition/bullets, knives, clubs, brass knuckles, attack dogs, or something that looks like a weapon. [Isaiah is] not to possess anything that he could use or intend to use as a weapon OR intend for someone else to think might be a weapon, which includes real, fake, toys, replica, and look alike weapons." (Italics added.)

11 After briefing was complete, Isaiah's counsel submitted a letter conceding this issue "could be seen as moot because the juvenile court subsequently issued a new dispositional order in further proceedings" and "the second dispositional order has technically superseded the original order." (See In re Shaun R. (2010) 188 Cal.App.4th 1129, 1140.) " 'A case is moot when any ruling by [the appellate] court can have no practical impact or provide the parties effectual relief.' " (Carson Citizens for Reform v. Kawagoe (2009) 178 Cal.App.4th 357, 364.) Isaiah's counsel contends we should decide the issue despite the lack of relief available to him on this appeal because "deciding the issue sooner rather than later will provide necessary guidance to [Isaiah], law enforcement, and the juvenile court since [Isaiah] is currently subject to the [same] condition." (See Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480 [discussing discretionary exceptions to mootness rules, including "when there may be a recurrence of the controversy between the parties"].) We conclude this is a proper case to exercise our discretion. The People have not urged us to dismiss the appeal as moot, and Isaiah continues to be subject to the same condition. Thus, it appears likely the present controversy could recur with regard to Isaiah.

The People contend Isaiah forfeited his challenge to the weapons condition both by failing to object at the disposition hearing and by failing to object or appeal from a predisposition order initially imposing the condition. The latter argument is meritless because the predisposition order was not directly appealable. (Welf. & Inst. Code, § 800, subd. (a); In re Shaun R., supra, 188 Cal.App.4th at p. 1138.) Isaiah's overbreadth and vagueness arguments may be raised for the first time on appeal because they present pure questions of law. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 [defendant's challenge to probation condition as unconstitutionally overbroad and vague not forfeited by failing to object in juvenile court].)

Welfare and Institutions Code "[s]ection 730, subdivision (b) authorizes the juvenile court to 'impose and require any and all reasonable 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.' A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile." (In re Josh W. (1997) 55 Cal.App.4th 1, 5.) We review challenges to probation conditions for abuse of discretion. (Ibid.) "However, we review constitutional challenges to a probation condition de novo." (In re Shaun R., supra, 188 Cal.App.4th at p. 1143; accord, People v. Mendez (2013) 221 Cal.App.4th 1167, 1172 ["[i]f the vagueness of a probation condition may be corrected 'without reference to the particular sentencing record developed in the trial court' [citation], an issue of law arises subject to de novo review on appeal"].)

"In distinguishing between the permissible exercise of discretion in probationary sentencing by the juvenile court and that allowed in 'adult' court, we have advised that, '[a]lthough the goal of both types of probation is the rehabilitation of the offender, "[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment . . . ." [¶] In light of this difference, a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court. . . . [¶] . . . [N]o choice is given to the youthful offender [to accept probation]. By contrast, an adult offender "has the right to refuse probation, for its conditions may appear to defendant more onerous than the sentence which might be imposed." ' " (In re Sheena K., supra, 40 Cal.4th at p. 889.)

"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." (In re Robert M. (1985) 163 Cal.App.3d 812, 816.) A probation condition is "unconstitutionally vague if it is not ' "sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." ' ([In re Sheena K., supra, 40 Cal.4th] at p. 890 . . . .) A restriction failing this test does not give adequate notice—'fair warning'—of the conduct proscribed." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "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." [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." ' " (Sheena K., at p. 890, italics omitted.) "[A] probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' " (People v. Hall (2017) 2 Cal.5th 494, 501.)

Isaiah complains the condition is vague because "it fails to adequately identify the objects that may be encompassed." He points out that he may not be aware an item he possesses qualifies as a deadly or dangerous weapon and that it is overbroad because "almost anything could be used as a weapon or seen by someone else as a weapon." The first argument is unavailing. As Isaiah acknowledges only in his reply brief, our Supreme Court has held that even a weapons condition containing no express knowledge requirement, unlike that at issue here, does not require modification because such conditions implicitly include a knowledge requirement. (People v. Hall, supra, 2 Cal.5th at pp. 501-503.)

The second component advances Isaiah's argument no further, as it belies common sense. (See In re Ramon M. (2009) 178 Cal.App.4th 665, 677.) He contends he could be found to have violated the probation condition if he possesses "[a] pencil, baseball bat, dinner knife, letter opener, hammer, house key, golf club, or a bottle of soda." No reasonable person would read this provision to mean that Isaiah is forbidden from using a pencil for its common use. He is only forbidden from possessing such a commonplace item if he intends to use it as a weapon or the circumstances reasonably suggest to someone else he possesses it as a weapon. The condition provides the reasonable degree of certainty required. (People v. Hall, supra, 2 Cal.5th at pp. 501, 503.)

IV. DISPOSITION

The judgment is affirmed.

/s/_________

BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.