In re Terry W.
Filed 6/13/08 In re Terry W. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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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In re TERRY W., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. TERRY W., Defendant and Appellant. | C055598 (Super. Ct. No. JV124686) |
Following a contested jurisdictional hearing, Terry W., a minor, was found to have committed attempted burglary and vandalism and was placed on informal probation.
One condition of probation, No. 9(l), was that minor [n]ot 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 contends this condition is unconstitutionally overbroad because it fails to limit his exclusion to places where he knows that illegal substances are present. He requests that we so modify the condition to include this knowledge requirement. The People argue the knowledge requirement is implied in the condition and, therefore, no modification is necessary. We agree with the minor and shall modify the condition accordingly.[1]
Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn. To the extent it is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.)
In People v. Garcia (1993) 19 Cal.App.4th 97, the trial court imposed a probationary condition prohibiting the defendant from associat[ing] with any felons, ex-felons, users or sellers of narcotics. (Id. at p. 100.) The defendant challenged the condition as overbroad because it lacked a knowledge requirement. The appellate court agreed and in doing so rejected the Peoples argument that the knowledge requirement was implied in the condition, stating: [T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn . . . lead[s] us to the conclusion that this factor should not be left to implication. (Id. at p. 102) The condition at issue herein is not distinguishable from the one in Garcia.
DISPOSITION
General Condition 9(l) is modified to read: Not associate with persons whom 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. As modified, the order of probation is affirmed.
SIMS , J.
We concur:
SCOTLAND, P.J.
ROBIE , J.
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[1] As the People correctly acknowledge, pursuant to the California Supreme Courts decision in In re Sheena K. (2007) 40 Cal.4th 875, at page 888, the minor has not forfeited the issue by his failure to object to the condition at the time it was imposed.
