In re Maurice G.

Filed 5/28/08 In re Maurice G. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits, Judge.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Maurice G. contends one of his conditions of probation is vague and overbroad. He also contends the minute order setting forth the conditions of probation does not accurately reflect the trial courts oral pronouncement. We agree that the order needs to be corrected to reflect accurately the oral pronouncement. In all other respects, we affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

On February 26, 2007, Verjean Thomas saw Maurice and two other males standing on her back patio outside her sliding glass door. Thomas armed herself with a baseball bat and, when Maurice entered her house, Thomas lifted the bat and yelled. The three boys ran away.

Thomas identified Maurice in a photo lineup. Officers determined that Maurice was a member of the Dawg Pound criminal street gang.

Maurice admitted the allegation that he had committed first degree residential burglary. The juvenile court found the offense to be a felony. Maurice was made a ward of the court and placed at the juvenile justice campus for 365 days. Conditions of probation included that Maurice (1) not use or possess narcotics, other controlled substances, related paraphernalia, or poisons; (2) not associate with anyone he knows to be disapproved of by his parents or probation officer; and (3) not associate with any person he knows to be a gang member. At the time, Maurice did not object to, or seek clarification of, any of these conditions of probation.

DISCUSSION

Maurice contends that the probation condition prohibiting use or possession of narcotics, other controlled substances, related paraphernalia, or poisons is vague and overbroad because poison could include various household items. The People disagree with this contention. Maurice also contends the minute order setting forth the conditions of probation does not accurately reflect the juvenile courts oral pronouncement. The People agree the minute order needs to be corrected to reflect the oral pronouncement.

I. Prohibition on Use or Possession of Poison

Maurice did not object to this condition at the time of its imposition, and the People contend the claim is not waived as it presents a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 887.)

Maurice challenges only the inclusion of the term poisons in the probation condition; he is not challenging any other items listed. Maurice contends he does not have a history of using poison for illegal purposes and that many household items contain poisons. Therefore, this term should be stricken as overbroad.

Language similar to that in Maurices probation condition has been included in juvenile probation conditions for nearly 30 years or more. (In re Todd L. (1980) 113 Cal.App.3d 14, 18.) In the Todd case, the condition was included because there were indications the juvenile previously had used drugs. (Id. at p. 20.) Here, Maurices history demonstrates that he began using illegal substances starting at age 11.

A juvenile court has significantly greater discretion in imposing conditions of probation than an adult court when sentencing an adult to probation. (In re Tyrell J. (1994) 8 Cal.4th 68, 81.) This is because juvenile probation is not an act of leniency, but a disposition made in the minors best interest. Accordingly, 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. [Citations.] (Ibid.) A minors liberty interest is not coextensive with that of an adult. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242.) In setting probation conditions, the juvenile court considers not only the circumstances of the crime but also the juveniles entire social history. (In re Todd L., supra, 113 Cal.App.3d at p. 20.) A condition designed to prevent additional criminal behavior and steer the juvenile offender on the road to rehabilitation is proper. (In re Kazuo G. (1994) 22 Cal.App.4th 1, 8.) Maurice is correct that many household items contain poisons. Therefore, the only reasonable reading of this provision is to prohibit the use or possession of poisons for illicit or illegal purposes.

Challenges to probation conditions that prohibit use or possession of deadly or dangerous weapons on the grounds they are overbroad because possession or use of common household items, such as knives, could fall within the condition are routinely rejected because the household item becomes deadly or dangerous only if the user intends to inflict injury with the object and the object is capable of being used to inflict injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) The prohibition on the use and possession of poisons should be similarly interpreted to require an intent to use or possess the poison for illegal or illicit purposes.

Should Maurice find himself in the position of facing a charge of probation violation for possession of a common household poison, he is entitled to a formal probation violation hearing to determine whether he has willfully violated probation. Without such a hearing, his probation may not be revoked. (See People v. Galvan (2007) 155 Cal.App.4th 978, 982-983.)

II. Knowledge Requirement

Maurice contends, and the People concede, that the minute order does not accurately reflect the juvenile courts oral pronouncement. Specifically, the knowledge requirement inadvertently was omitted from several conditions. The explicit knowledge requirement is necessary to render the condition constitutionally sound. (In re Sheena K., supra, 40 Cal.4th at p. 892.)

The minute order should be corrected so that it accurately reflects the juvenile courts oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The minute order shall be corrected so as to reflect the juvenile courts oral pronouncement. In all other respects, the disposition is affirmed.

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^* Before Cornell, Acting P.J., Gomes, J. and Kane, J.