In re Toney M.

In re Toney M.

Filed 8/18/08 In re Toney M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re TONEY M., a Person Coming Under the Juvenile Court Law	B202803
THE PEOPLE, Plaintiff and Respondent, v. TONEY M., Defendant and Appellant.	(Los Angeles County Super. Ct. No. TJ14661)

APPEAL from an order of the Superior Court of Los Angeles County, Wayne C. Denton, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed as modified.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason C. Tran and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

Toney M. appeals from an order continuing wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed first degree residential burglary (Pen. Code, 459). He was placed in a long-term camp community placement program and contends the juvenile court violated his state and federal constitutional rights when it ordered various probation conditions without adding a knowledge requirement. He also challenges the condition that he not use or possess narcotics even if prescribed by a physician. For reasons stated in the opinion, we modify the conditions of probation and in all other respects affirm the order continuing wardship.

FACTUAL AND PROCEDURAL SUMMARY

On August 13, 2007, when Michael Jacobs returned to his home in Lancaster his wife informed him that their home had been burglarized. Mr. Jacobs discovered that his daughters iPod, an anniversary ring, a pearl necklace, two wristwatches and a cap and ball pistol set were missing. A couple of days later, he received a call from the Sheriffs Department informing him that the pistol had been recovered and was at a pawnshop in Lancaster.

On August 13, appellant and two other individuals attempted to sell the pistol to Mark Kirzner, one of the owners of the Trading Post pawnshop. Appellant stated the gun had been in his grandfathers garage. Mr. Kirzner said he would have to do some research to learn how much he could pay for it and appellant and his companions left the weapon at the shop. Appellant and a female companion returned to the pawnshop the next day to complete the sale and received $50 for the weapon. During the transaction, appellant asked Mr. Kirzner for the weapon, stating he wanted to wipe off his fingerprints.

A crime analyst compared the pawn slip for the pistol with the report of the instant burglary and on August 15, Deputy Sheriff Eric Eitner went to the Trading Post. Deputy Eitner learned appellant was involved in the transaction and thereafter spoke to him. During a search of appellants bedroom, Deputy Eitner recovered the stolen iPod. Appellant subsequently admitted burglarizing the residence with another individual.

DISCUSSION

I

Appellant was placed into a long-term camp program under certain terms and conditions. He challenges the juvenile courts oral pronouncement of three of these conditions in that it did not add a knowledge requirement. Specifically, the court orally ordered appellant not to associate with any gang members, any taggers or anyone else disapproved of by a person or the placement staff member or probation officer, not to hang around anyone whos unlawfully armed, and not to hang around any places where [narcotics] users congregate. The minute order setting forth these conditions of probation, however, includes a knowledge requirement, i.e., that appellant not associate with anyone known to be disapproved of by parents[/]probation officer, that appellant not remain in the presence of anyone known to minor to be unlawfully armed and that appellant stay away from places where known users congregate.

In the absence of an express requirement of knowledge the probationary conditions as recited by the juvenile court are unconstitutionally vague. (See In re Sheena K. (2007) 40 Cal.4th 875, 891.) While the probation conditions as set forth in the minute order contain a knowledge requirement, the minute order does not reflect what was stated in court. Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes. [Citation.] (People v. Price (2004) 120 Cal.App.4th 224, 242.) Because the conditions as orally pronounced were unconstitutionally vague, the conditions of probation must be modified.

II

Appellant was also ordered not to use or possess narcotics. He contends the term is unconstitutional and potentially dangerous to his health and that at the very least the term must be limited to those that are used or possessed without a doctors prescription. We agree and will modify the condition to order appellant not to use or possess narcotics without a physicians valid prescription.

DISPOSITION

Probation Condition number 15 is modified to reflect that appellant is not to associate with anyone he knows to be a gang member or tagger or anyone else known by him to be disapproved of by his parents or probation officer. Condition number 16 is modified to reflect that appellant is not to remain in the presence of anyone he knows to be unlawfully armed. Condition number 21 is modified to reflect that appellant is not to use or possess narcotics without a doctors prescription. Additionally, condition number 21 is modified to reflect that appellant is ordered to stay away from places known by him to be places where narcotics users congregate. In all other respects, the order continuing wardship is affirmed. The juvenile court is directed to prepare a new minute order and serve it on appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J. WILLHITE, J.

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