In re Ali A.

Filed 5/21/08 In re Ali A. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Following a contested jurisdictional hearing, the juvenile court sustained a charge of resisting arrest against Ali A., a minor. He was declared a ward of the court and placed on probation under various terms and conditions.

On appeal, the minor challenges two of the probationary conditions as being unconstitutionally vague and overly broad. We shall modify the conditions and affirm the judgment.

DISCUSSION

The juvenile court imposed the following probationary conditions on the minor:

Not own or have any dangerous or deadly weapons in his possession or remain in any building or vehicle where any person unlawfully has such a weapon, or remain in the presence of any unlawfully armed person[.] [] . . . []

Not associate with persons who you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana, or be in places where such substances are present.

The minor first argues that these conditions are vague because they fail to include a knowledge requirement -- specifically, that he know either that any person unlawfully has such a weapon[] or that he is in places where [illegal] substances are present. The People concede the minor is correct. We shall modify the conditions accordingly.

The minor also argues that even when the knowledge requirement is inserted, the conditions remain facially unconstitutionally vague and overbroad. He claims the condition prohibiting him from knowingly possessing or being present where dangerous or deadly weapons are present precludes him from possession of, or being present with any person who possesses, such everyday items as kitchen knives, fireplace tools, or screwdrivers. This is so because in addition to their intended use such items may also be used as a dangerous weapon.^[1] And the condition restricting him from knowingly being in places where illegal drugs are being used, sold or possessed, prohibits him from remaining in locations such as stadiums, gyms, schools, and courthouses if he knows illegal substances are present. We reject these arguments because they are not reasonable applications of the challenged conditions.

Initially, we address the Peoples contention that the minor has forfeited these latter arguments because they are not facial challenges to the constitutionality of the conditions, but instead are constitutional challenges specifically applied to the minor which require an objection to presenting the issue for appeal.

[A] challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 887.) Since there is no need to refer to the record of disposition to address the minors constitutional arguments, the Peoples contention is rejected.

A probation condition is subject to the void for vagueness doctrine, and thus must be sufficiently precise for the probationer to know what is required of him . . . . [Citations.] [] Two principles guide the evaluation of whether a law or . . . probation condition[] is unconstitutionally vague. First, abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a laws meaning, giving facially standardless language a constitutionally sufficient concreteness. [Citation.] Second, only reasonable specificity is required. [Citation.] Thus, a statute will not be held void for vagueness if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources. (People v. Lopez (1998) 66 Cal.App.4th 615, 630; italics in original.) Where the terms of a statute or condition of probation have a reasonably understood meaning, condition is not vague. (People v. Rodriguez (1975) 50 Cal.App.3d 389, 398.) A probation condition is constitutionally overbroad when it substantially limits rights without closely tailoring the condition to the purpose for its imposition. (In re White (1979) 97 Cal.App.3d 141, 148.)

The term deadly weapon is commonly understood to mean any instrument likely to produce death or great bodily injury. (People v. Rodriguez, supra, 50 Cal.App.3d at p. 398.)

Reasonably read, the prohibition against the minors possessing dangerous or deadly weapons means that he is not to possess any instrument specifically designed as a weapon or, if not so specifically designed, any instrument capable of inflicting great bodily injury with the intent of using it as a weapon, i.e., using it for an offensive or defensive purpose. This being the reasonable and practical understanding of the prohibition, it is neither vague nor overbroad.

Similarly, when reasonably read, the second condition only prohibits the minor from socializing with persons whom he knows are unlawfully possessing, using or selling illegal substances and from remaining in places, such as residences or hangouts, known by him to be locations where a frequent or primary purpose is unlawful drug activity. It would be wholly unreasonable to construe this condition, for example, as requiring him to leave school, a sports stadium, or theater because he became aware that some student, spectator or theater attendee was unlawfully involved with drugs. Consequently, no modification in this regard is required.

DISPOSITION

The challenged conditions of probation are modified as follows:

Not own or have any dangerous or deadly weapons in his possession or remain in any building or vehicle where the probationer knows that any person unlawfully has such a weapon, or to remain in the presence of any person whom the probationer knows to be unlawfully armed.

Not associate with person you know or whom the Probation Officer informs you are users or sellers of illegal drugs,

including marijuana, or be in places where you know such substances are present.

In all other respects, the judgment is affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

ROBIE , J.

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^[1] See People v. Henderson (1999) 76 Cal.App.4th 453, at pages 467-468, defining deadly weapons as those which are always deadly or dangerous because that was their design and those items which became deadly only when used as weapons.