In re D.K.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 12/3/13  In re D.K. CA4/2

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

 

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opinion has not been certified for publication or ordered published for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

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

In re D.K., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,               Plaintiff and Respondent,   v.   D.K.,               Defendant and Appellant.	E057973               (Super.Ct.No. J241198)               OPINION

 

            APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County. 
Larry W. Allen, Judge.  Affirmed
as modified.

            Sheila O’Connor, 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, Eric A. Swenson and Warren Williams, Deputy Attorneys
General, for Plaintiff and Respondent.

On July 5,
2012, the San
Bernardino County District Attorney filed a juvenile wardship petition alleging
that defendant and appellant D.K. (minor) committed vandalism under $400.  (Pen. Code, § 594, subd. (b)(2)(A), count 1.)href="#_ftn1" name="_ftnref1" title="">^[1]  At a
jurisdictional hearing, a juvenile court found the allegation true and
continued the case for a dispositional hearing. 
On November 8, 2012, a first amended juvenile petition was filed
on an unrelated case.  That petition
alleged that minor had committed misdemeanor battery on school, park, or
hospital property (§ 243.2, subd. (a)(1), count 1), misdemeanor battery (§ 242,
count 2), and assault with a deadly weapon (§ 245, subd. (a)(1), count
3).  The court dismissed counts 1 and 3,
and minor admitted the allegation in count 2. 
On December 27, 2012, the court held a href="http://www.mcmillanlaw.com/">dispositional hearing on both
cases.  The court declared minor a ward
and placed her on probation under the terms recommended by the probation
department.

            On
appeal, minor contends that two of her probation conditions should be modified
since they are unconstitutionally overbroad. 
We agree.  In all other respects,
we affirm the judgment.

ANALYSIS

The
Probation Conditions Should Be Modified

            Minor
challenges two of her drug-related probation conditions as being
overbroad.  These conditions require her
to:  (1) “Not associate with any
personally known user or seller of controlled substances or be in a location
known by the probationer to be a place where controlled substances are used or
sold” (condition No. 10); and (2) “Neither use nor possess any drug
paraphernalia as described in Health and Safety Code Section 11014.5 or Health
and Safety Code Section 11364.5(d)” (condition No. 12).  We agree
that these probation conditions should be modified.

            At
the outset, we note that the juvenile court “has wide discretion to select appropriate
conditions and may impose “ â€˜ â€œany reasonable condition that is ‘fitting
and proper to the end that justice may be done and the href="http://www.fearnotlaw.com/">reformation and rehabilitation of the
ward enhanced.’ â€ â€™ 
[Citations.]”  (>In re Sheena K. (2007) 40 Cal.4th 875,
889.)  A “condition that imposes
limitations on a person’s constitutional rights must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.”  (>Id. at p. 890.) 

            Minor
specifically argues that condition No. 10 is overbroad because it would
prohibit her from associating with pharmacists or persons using medically
necessary prescriptions.  She
requests this court to modify condition No. 10 to include the concept of the
illegality of controlled substances.  The People claim that “the concept of
illegality is implied” in condition No. 10. 
The People further assert that the “only reasonable construction of
‘controlled substances’ is illegal substances,” and that it is unlikely that
the term would be commonly misunderstood.

            Condition No. 10 has the apparent purpose
of protecting minor from drug abuse and the influence of drug dealers and
abusers.  However, it includes the term “controlled
substances,” which is very broad. 
Controlled substances are defined and listed in Health and Safety Code
sections 11054-11058.  The lists include
not only illegal substances like heroin and marijuana (Health & Saf. Code, § 11054,
subds. (c)(11), (d)(13)), but many commonly prescribed medications.  Thus, condition No. 10, as written, may
prohibit minor from associating with persons using or selling prescription
medication.  We ascertain no href="http://www.fearnotlaw.com/">rehabilitative purpose in such
restriction.  “‘California Courts have
traditionally been wary of using the probation system for any nonrehabilitative
purpose, no matter how superficially rational.’ 
[Citation.]”  (>People v. Tilehkooh (2003) 113 Cal.App.4th
1433, 1444, superseded by statute on other grounds, as stated in >People v. Moret (2009) 180 Cal.App.4th
839, 853.)  We conclude that condition
No. 10 should be modified to read as follows: 
Not associate with any known user or seller of illegal controlled substances
or be in a location known by the probationer to be a place where illegal
controlled substances are used or sold.

Minor also contends that
condition No. 12 is overbroad because it would prohibit her from the use of
paraphernalia that may be used to take prescription medication.  She requests that condition No. 12 be
modified to exclude paraphernalia that is used to administer prescribed
medications.  The People argue that minor already must
follow condition No. 11, which permits her to use or possess controlled
substances with a medical prescription if the probation officer is notified,
and that this term “would presumably include any prescribed means of taking
such medication.”  However, condition No.
11 does not mention the use of drug paraphernalia, while condition No. 12
specifically does.  Moreover, we agree
with minor in that we find no rehabilitative interest in preventing her from
using instruments that may be necessary for taking prescription medication.  Therefore, condition No. 12 should be modified
to read as follows:  Neither use nor
possess any drug paraphernalia as described in Health & Safety Code section
11014.5 or Health and Safety Code section 11364.5, subdivision (d), except for
any item used to administer a medication minor was prescribed.

DISPOSITION

            Minor’s probation conditions are modified as followed:

Probation condition No. 10 is modified to read:  Not associate with any known user or seller
of illegal controlled substances or be in a location known by the probationer
to be a place where illegal controlled substances are used or sold.

Probation condition No. 12 is modified to read:  Neither use nor possess any drug
paraphernalia as described in Health and Safety Code Section 11014.5 or Health
and Safety Code Section 11364.5, subdivision (d), except for any item used to administer a medication minor was
prescribed.

            As modified, the judgment is
affirmed.

            NOT TO
BE PUBLISHED IN OFFICIAL REPORTS

 

 

HOLLENHORST                 

                                                Acting
P. J.

We concur:

 

 

KING                                     

                                             J.

 

 

MILLER                                

                                             J.