Filed 6/3/13 In re S.D. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re
S.D., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
S.D.,
Defendant and
Appellant.
F066094
(Super.
Ct. No. JW123937-03)
THE COURT
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APPEAL from
a judgment of the Superior Court
of
Steven A.
Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Peter H. Smith and Jesse Witt,
Deputy Attorneys General, for Plaintiff and Respondent.
The court
found that appellant, S.D., was a person described in Welfare and Institutions
Code section 602 after appellant admitted allegations charging him with
Code, § 12020, subd. (a)(4)).
On appeal,
appellant contends that one of his conditions of probation is constitutionally
overbroad. We will find merit to this
contention and modify the condition at issue.
In all other respects, we affirm.
FACTS
On May 25, 2011, during an investigation by Los
Angeles police officers, appellant was found to be in
possession of a dart that had been sharpened and its fins removed so it could
be held as a knife. Appellant was on
probation in a Kern County
case at the time.
On July 26, 2011, the district attorney filed a petition
charging appellant with possession of a dirk or dagger.
On August 7, 2012, the court held an
also heard appellant’s motion to suppress.
At the conclusion of the hearing, the court denied appellant’s motion to
suppress, sustained the possession of a dirk or dagger charge, and transferred
the case to the Kern County Superior Court.
On August 16, 2012, the Kern County Superior Court accepted
the transfer.
On August 27, 2012, the court found appellant’s offense to be
a felony and it placed appellant on probation not to exceed his 21st
birthday.
DISCUSSION
One of
appellant’s conditions of probation provided that “[The minor is] not to
possess or use a weapon of any type, nor associate or initiate contact with
anyone that he knows to be involved with or in possession of the same.â€
Appellant contends that this
condition is constitutionally overbroad because almost anything can be a
dangerous weapon and it prohibits him from interacting with people who can
lawfully possess weapons such as police officers and his probation
officer. Respondent concedes and we
agree.
“The juvenile court has wide
discretion to select appropriate conditions and may impose ‘“any reasonable
condition that is ‘fitting and proper to the end that justice may be done and
the reformation and rehabilitation of the ward enhanced.Չۉ۪ [Citations.]
In distinguishing between the permissible exercise of discretion in
probationary sentencing by the juvenile court and that allowed in ‘adult’
court, we have advised that, ‘[a]lthough the goal of both types of probation is
the rehabilitation of the offender, “[j]uvenile probation is not, as with an
adult, an act of leniency in lieu of statutory punishment ....†[¶] In light of this difference, a condition of
probation that would be unconstitutional or otherwise improper for an adult
probationer may be permissible for a minor under the supervision of the
juvenile court.... [¶] ... [N]o choice is given to the youthful offender [to
accept probation]. By contrast, an adult
offender “has the right to refuse probation, for its conditions may appear to
defendant more onerous than the sentence which might be imposed.†[Citations.]’
[Citations.]†(
“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.]â€
(Id. at p. 890.)
The
condition at issue is overbroad for the reasons advanced by appellant. Accordingly, we will modify the condition as
suggested by respondent to state as follows: “The minor shall not knowingly
possess any object that he knows is a dangerous and deadly weapon, any object
that he knows can be used to cause bodily injury or death where he intends such
harm, or any type of ammunition. The
minor shall not associate or initiate contact with anyone the minor knows to
unlawfully possess any object that is a dangerous and deadly weapon or any
object that appellant knows can be used to cause bodily injury or death where
appellant knows the possessor intends such harm.â€
DISPOSITION
The
probation condition at issue is modified to reads as set forth above. Except to the extent of this modification to
the conditions of probation imposed upon appellant, the judgment is affirmed.
Gomes, Acting P.J., Kane, J., and Peña, J.
