gno.law

In re Jake R. CA4/1

California Court of Appeal · D063933 · 2014-03-14 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. JCM233094
Trial judge
Carlos O. Armour
Outcome
modified — Affirmed as modified.
Area
delinquency
Panel
McINTYRE (author), Richard D. Huffman, Sr., Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:43Z · confidence high

The trial court sustained a petition for multiple drug and resistance counts, adjudged the minor a ward of the court, and imposed probation conditions including a ban on using or possessing controlled substances. On appeal, the court vacated the conviction for possessing less than 28.5 grams of marijuana as a lesser included offense and modified the probation condition to require 'knowing' use or possession.

Ruling reviewedStandardThe courtThe model
Sustaining the true finding on count 3 (possessing less than 28.5 grams of marijuana) alongside count 1 (possessing marijuana for sale).
“Accordingly, we vacate the true finding on count 3 as it is a lesser included offense of count 1.”
de novoerroragree with court
agree with court
Imposing a probation condition prohibiting the use or possession of alcohol or controlled substances without an explicit knowledge requirement.
“Probation conditions that fail to include language requiring the probationer's knowing violation of the condition have been invalidated in a number of contexts.”
de novoerroragree with court
agree with court

Authorities

  • relied: People v. Reed (2006) 38 Cal.4th 1224 — Multiple convictions may not be based on necessarily included offenses.
  • relied: People v. Saldana (1984) 157 Cal.App.3d 443 — One cannot possess narcotics with intent to sell without first being in actual or constructive possession.
  • relied: In re Sheena K. (2007) 40 Cal.4th 875 — Constitutional challenges to probation conditions may be raised for the first time on appeal if they present a pure question of law; conditions must be sufficiently precise to withstand vagueness challenges.
  • relied: People v. Freitas (2009) 179 Cal.App.4th 747 — Probation conditions lacking a knowing violation requirement have been invalidated.
  • relied: In re Vincent G. (2008) 162 Cal.App.4th 238 — Probation conditions lacking a knowing violation requirement have been invalidated.

The appellate opinion: sound — The court correctly applied the rule against multiple convictions for lesser included offenses and the constitutional requirement that probation conditions include a scienter element to avoid vagueness. The reliance on established California Supreme Court and Court of Appeal precedent supports the modifications made.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The juvenile court sustained a petition finding that Jake R. possessed marijuana for sale (count 1), resisted an officer (count 2), possessed less than 28.5 grams of marijuana (count 3) and possessed smoking paraphernalia (count 4), declared him a ward, and imposed probation conditions including a bar on using or possessing alcohol or controlled substances without a valid prescription. On appeal, the Attorney General conceded both of Jake's arguments, and the Court of Appeal vacated the true finding on count 3 as a lesser included offense of count 1, modified the substance-abuse probation condition to add an express knowledge requirement, and otherwise affirmed.

Ruling reviewedStandardThe courtThe model
True finding on count 3 (possession of less than 28.5 grams of marijuana) in addition to count 1 (possession of marijuana for sale)
“Accordingly, we vacate the true finding on count 3 as it is a lesser included offense of count 1.”
de novoerror (law misapplied)agree with court
Whether one offense is necessarily included in another is a legal question, and the court applied no deference. Under People v. Reed, multiple convictions cannot rest on necessarily included offenses, and Saldana, Oldham and Magana establish that simple possession is necessarily included in possession for sale because one cannot possess with intent to sell without possessing. The concession and the authorities support vacating the duplicative true finding.
Imposition of probation condition No. 28 prohibiting use or possession of alcohol or controlled substances without a valid prescription, without an express knowledge requirement
“Probation conditions that fail to include language requiring the probationer's knowing violation of the condition have been invalidated in a number of contexts.”
de novoerror (other)agree with court
The court correctly treated the unpreserved vagueness challenge as a pure question of law reviewable for the first time on appeal under Sheena K., and applied the Sheena K. precision standard. Freitas and Vincent G. support adding a scienter term to possession-type conditions, and the Attorney General conceded. The modification inserting 'knowingly' cures the asserted vagueness as to alcohol and controlled substances (the mind-altering-substance clause already had a knowledge term). The result is consistent with the cited authority, although the court did not discuss the then-existing split among districts over whether a knowledge requirement should simply be implied rather than written in; given the concession, that omission does not undermine the result.

Authorities

  • relied: People v. Reed (2006) 38 Cal.4th 1224 — Multiple convictions may not be based on necessarily included offenses.
  • relied: People v. Saldana (1984) 157 Cal.App.3d 443 — One cannot possess narcotics with intent to sell without first being in actual or constructive possession; simple possession is a lesser included offense of possession for sale.
  • relied: People v. Oldham (2000) 81 Cal.App.4th 1 — Simple possession of a controlled substance is a lesser included offense of possession for sale.
  • relied: People v. Magana (1990) 218 Cal.App.3d 951 — Simple possession is necessarily included in possession for sale.
  • relied: In re Sheena K. (2007) 40 Cal.4th 875 — A constitutional vagueness challenge to a probation condition presenting a pure question of law may be raised for the first time on appeal; a condition must be sufficiently precise for the probationer to know what is required and for the court to determine whether it was violated.
  • relied: People v. Freitas (2009) 179 Cal.App.4th 747 — Probation conditions barring possession of stolen property, firearms or ammunition must be modified to include a knowledge requirement to avoid vagueness.
  • relied: In re Vincent G. (2008) 162 Cal.App.4th 238 — Juvenile probation conditions barring gang-affiliated material must include a knowledge requirement.

The appellate opinion: sound — The opinion accepts two Attorney General concessions and supports each with on-point, binding or well-settled authority: Reed and the Saldana line for the lesser included offense, and Sheena K., Freitas and Vincent G. for the scienter modification. The analysis is brief but answers the only arguments raised, and the dispositions (vacating count 3 and inserting 'knowingly') follow directly from those authorities.

How this analysis was made · dispute it

Opinion

Filed 3/14/14 In re Jake R. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re Jake R., a Person Coming Under the Juvenile Court Law. D063933 THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. JCM233094)

v. JAKE R., Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Carlos O.

Armour, Judge. Affirmed as modified.

Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent. The juvenile court sustained a petition alleging that Jake R. possessed marijuana for sale (count 1), resisted a police officer (count 2), possessed less than 28.5 grams of marijuana (count 3) and possessed paraphernalia designed for smoking a controlled substance while under the age of 18 (count 4). Jake was adjudged a ward of the court and placed with his mother with various probation conditions, including that he not use or possess alcohol or controlled substances without a valid prescription.

Jake appeals, contending the true finding on count 3 must be vacated because it is a lesser included offense of count 1. He also asserts the probation condition requiring that he not use or possess alcohol or controlled substances without a valid prescription is unconstitutionally vague and should be modified to include an actual knowledge requirement. The Attorney General concedes both arguments. We accept the Attorney General's concessions. Accordingly, we vacate the true finding on count 3 and modify the probation condition to include an actual knowledge requirement. As so modified, the judgment is affirmed.

DISCUSSION

I. Lesser Included Offense Jake contends the true finding on count 3 (possessing less than 28.5 grams of marijuana) must be vacated because it is a lesser included offense of count 1 (possessing marijuana for sale). The Attorney General concedes the argument. Multiple convictions may not be based on necessarily included offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) "[O]ne cannot possess narcotics with intent to sell without first being in 2 actual or constructive possession." (People v. Saldana (1984) 157 Cal.App.3d 443, 456- 457; accord, People v. Oldham (2000) 81 Cal.App.4th 1, 16; People v. Magana (1990)

218 Cal.App.3d 951, 954.) Accordingly, we vacate the true finding on count 3 as it is a lesser included offense of count 1.

II. Probation Condition Jake contends that probation condition number 28 in the social study, and imposed by the juvenile court, is unconstitutionally vague because he could unknowingly violate it.

The Attorney General agrees that the probation condition should be changed to include an actual knowledge requirement.

The probation condition states that Jake "shall not use or possess alcohol, a controlled substance, or any substance the minor knows or reasonably should know is a mind altering substance without a valid prescription and shall submit to testing for the detection of alcohol, controlled substances, or mind altering substances whenever directed by any law enforcement or Probation Officer." At the time the conditions of probation were imposed, minor's counsel did not object to the probation condition at issue in this appeal. Generally, any objection to the reasonableness of a probation condition is forfeited if not raised at the time of imposition. (In re Sheena K. (2007) 40 Cal.4th 875, 883 & fn. 4 (Sheena K.) Nonetheless, a constitutional challenge to a probation condition may be raised for the first time on appeal when it presents a pure question of law resolvable without reference to the record developed during trial. (Id. at pp. 887-889.)

3 "A probation condition 'must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,' if it is to withstand a [constitutional] challenge on the ground of vagueness." (Sheena K., supra, 40 Cal.4th at p. 890.) Probation conditions that fail to include language requiring the probationer's knowing violation of the condition have been invalidated in a number of contexts. (E.g., People v. Freitas (2009) 179 Cal.App.4th 747, 751-752 [possessing stolen property, or possessing firearms or ammunition]; In re Vincent G. (2008) 162 Cal.App.4th 238, 245, 247-248 [possessing, wearing or displaying gang-affiliated material].) Accordingly, we modify the probation condition at issue to read: "The minor shall not knowingly use or possess. . . ."

DISPOSITION

The true finding on count 3 is vacated. The probation condition at issue in this appeal shall be modified to read: "The minor shall not knowingly use or possess . . . ." As so modified, the order is affirmed.

McINTYRE, J. WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

Cites, in this corpus