In re J.P.





















Filed 4/19/13 In re J.P. CA1/4













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




>

In re J.P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. J.P., Defendant and Appellant.	A136114 (San Francisco County Super. Ct. No. JW116255)

Minor
J.P. appeals after the juvenile court sustained a petition alleging he
committed first degree robbery (Pen.
Code,href="#_ftn1" name="_ftnref1" title="">[1]
§ 212.5, subd. (a)), assault by means of force likely to product great
bodily injury (§ 245, subd. (a)(1)), and resisting arrest (§ 148, subd.
(a)(1)), and that in committing the robbery and assault, he personally
inflicted great bodily injury (§ 12022.7, subd. (a)). On appeal, he challenges the conditions of
his probation. We shall order the
weapons and alcohol conditions modified, and otherwise affirm the judgment.

>I.
BACKGROUND

Minor
was declared a ward of the court pursuant to Welfare and Institutions Code
section 602 and placed on probation in June 2011, after he admitted, and
the juvenile court sustained, allegations that he committed grand theft
(§ 487, subd. (c)) and assault (§ 245, subd. (a)(1)). A second wardship petition was later filed,
and in March 2012, upon Minor’s admission, the juvenile court sustained an
allegation that he unlawfully possessed a semiautomatic rifle. (§ 29820.) Minor was placed on home detention under
probationary supervision.

The
petition at issue in this appeal—the third petition—was filed in May 2012,
alleging Minor had committed first degree robbery (§ 212.5, subd. (a)),
assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(1)), and resisting arrest (§ 148, subd. (a)(1)). The petition also alleged in connection with the robbery and assault
allegations that Minor had personally inflicted great bodily injury. (§ 12022.7, subd. (a).) After a contested href="http://www.mcmillanlaw.com/">jurisdictional hearing, the court found
the allegations of the third petition true.href="#_ftn2" name="_ftnref2" title="">[2]

At
the dispositional hearing, the juvenile court redeclared wardship and placed
Minor on probation on condition that he successfully complete a ranch school
program. Among the conditions of
probation was the requirement that he “[n]ot possess weapons of any kind, which
means no guns, knives, clubs, brass knuckles, attack dogs, ammunition, or anything
that looks like a weapon. You are not to
possess anything that you could use as a weapon or someone else might consider
to be a weapon.”href="#_ftn3" name="_ftnref3"
title="">[3] Under another condition, Minor was ordered
that he “[n]ot possess or have in your possession, use, consume, or sell any
controlled substances, alcohol, or intoxicants forbidden by law.”

>II.
DISCUSSION

Minor
contends the weapon condition and the drug and alcohol conditions are
unconstitutionally vague and overbroad.href="#_ftn4" name="_ftnref4" title="">[4]

Under
Welfare and Institutions Code section 730, subdivision (b), a juvenile
court may impose “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.” In
spite of the juvenile court’s broad discretion, “[a] probation condition ‘must
be sufficiently precise for the probationer to know what is required of him,
and for the court to determine whether the condition has been violated,’ if it
is to withstand a challenge on the ground of vagueness. [Citation.]
A probation 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.
[Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “ ‘The underlying concern of the vagueness
doctrine is the core due process requirement of adequate notice: [¶] “ ‘No one may be required at peril
of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what
the State commands or forbids.’ [Citations.] . . . [¶] ‘
. . . Thus, a law that is ‘void for vagueness’ not only fails to
provide adequate notice to those who must observe its strictures, but also
‘impermissibly delegates basic policy matters to policemen, judges, and juries
for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.’ ” ’ [Citations.]”
(In re H.C. (2009) 175
Cal.App.4th 1067, 1070.)

Minor
first argues the prohibition on possession of weapons does not provide an
explicit standard for what objects are encompassed within the prohibition. He asks us to modify the condition to
prohibit possession of deadly or
dangerous weapons. Minor relies on >In re R.P. (2009) 176 Cal.App.4th
562. There, the court concluded that a
probation condition prohibiting a minor from possessing any “ ‘dangerous
or deadly weapon’ ” gave sufficient warning of what might result in a violation,
and hence was not unconstitutionally vague.
(Id. at p. 565.) The court reasoned, “[c]ase law confirms the
plain meaning definition of ‘deadly weapon’ as ‘ “any object, instrument, or weapon which is used in such a manner as to
be capable of producing, and likely to produce, death or great bodily injury.” [Citation.]’
[Citation.] This definition
encompasses inherently deadly items such as dirks and blackjacks which are
specifically designed as weapons and are thus ‘deadly weapons’ as a matter of
law, as well as other items that are not
deadly per se but which may be used in a manner likely to cause death or great
bodily injury. [Citation.]” (Id.
at p. 567.) The court also looked to
pattern jury instructions and Black’s Law Dictionary, all of which defined
dangerous and deadly weapons. (>In re R.P., supra, at p. 567.) The court concluded that the term “deadly or
dangerous weapon” was thus well-defined and hence “clearly established in the
law”; as a result, “the ‘no-dangerous-or-deadly-weapon’ probation condition
[was] sufficiently precise for [the minor] to know what is required of
him.” (Id. at p. 568.)

We
conclude that the prohibition on “weapons” is likewise sufficiently precise
here. “Weapon” is defined in Black’s Law
Dictionary as “An instrument used or designed to be used to injure or kill
someone.” (Black’s Law Dict. (8th ed. 2004) p. 1624.) A standard dictionary defines “weapon” as
“something (as a club, knife, or gun) used to injure, defeat, or destroy.” (Merriam-Webster’s Collegiate Dictionary
(11th ed. 2004) p. 1417.) Moreover, the
condition explains that the prohibition on weapons “means no guns, knives,
clubs, brass knuckles, attack dogs, ammunition.” A reasonable person can understand the plain
meaning of the term “weapons” as used in the probation condition.

We
agree with Minor, though, that the prohibition on “possess[ing] anything that
[he] could use as a weapon” does not provide adequate notice of what objects it
encompasses. As worded, the condition is
broad enough to include any object that could
injure someone, even an ordinary household object, regardless of Minor’s intent
in possessing it. The condition
therefore does not give Minor adequate notice of what behavior it prohibits. We shall therefore order the condition
modified to prohibit Minor from possessing any object that he >intends to use as a weapon.

Minor
additionally argues that the condition must be modified to include a scienter
requirement. A probation condition that
forbids certain conduct is impermissibly vague and overbroad unless it includes
a knowledge requirement. (See >In re Sheena K., supra, 40 Cal.4th at pp. 891–892 [in absence of express
requirement of knowledge, probation condition limiting association with anyone
disapproved of by probation was unconstitutionally vague].) Where a probation condition suffers from this
defect, the appellate court may modify the condition to include the missing
knowledge requirement. (See >id. at pp. 889, 892; see also >In re Victor L. (2010) 182 Cal.App.4th
902, 912–913, 931 (Victor L.)
[modifying probation condition prohibiting presence where dangerous or deadly
weapons, firearms, or ammunition exist to include express knowledge
requirement]; People v. Freitas
(2009) 179 Cal.App.4th 747, 752–753 [modifying probation condition to specify
that defendant not knowingly possess
guns and ammunition].) The Attorney
General argues, however, that an express scienter requirement is unnecessary
because a trial court may not revoke probation unless the defendant willfully
violated the terms of probation.href="#_ftn5"
name="_ftnref5" title="">[5] (People
v. Moore (2012) 211 Cal.App.4th 1179, 1186–1187 [declining to require
express knowledge requirement for weapons prohibition]; People v. Patel (2011) 196 Cal.App.4th 956, 960–961 [stating that
in future, it would construe all probation conditions proscribing a
probationer’s presence, possession, or association to require the action be
undertaken knowingly without necessity for express scienter requirement].) As explained in Victor L., however, in modifying a weapon condition to include an express
scienter requirement, “[w]hile the requirement of proof of willfulness may save
[the minor] from an unconstitutional finding of guilt based on an unknowing
probation violation, that is cold comfort to a probationer who suffers from an
unfounded arrest and detention based
on the whim or vengeance of an arbitrary or mean-spirited probation
officer.” (Victor L., supra, 182
Cal.App.4th at p. 913.) We shall adhere
to the practice of modifying probation conditions to add an express knowledge
requirement.

Finally,
we agree with Minor that the prohibition of Minor using or possessing alcohol
or controlled substances should be modified to include a knowledge requirement.

>III. > DISPOSITION

The
weapon probation condition is modified to read:
“The minor shall: . . .
Not knowingly possess weapons of any kind, which means no guns, knives, clubs,
brass knuckles, attack dogs, ammunition, or something that looks like a
weapon. You are not to knowingly possess
anything that you intend to use as a weapon or that you know someone else might
consider to be a weapon.”

The
alcohol and drug condition is modified to read:
“The minor shall: . . . Not
knowingly possess or have in your possession, use, consume, or sell any controlled
substances, alcohol, or intoxicants forbidden by law.”

As
so modified, the judgment is affirmed.





_________________________

Rivera,
J.





We concur:





_________________________

Reardon, Acting P.J.





_________________________

Humes, J.