In re V.E.

























Filed 3/1/13 In re V.E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 V.E., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. V.E., Defendant and Appellant.	E055527 (Super.Ct.No. INJ021737) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Charles Everett
Stafford, Jr., Judge.
Affirmed as modified.

Jesse W.J. Male, 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, Melissa Mandel and Marissa Bejarano, Deputy Attorneys
General, for Plaintiff and Respondent.

I

INTRODUCTION

On December 19, 2011, a petition under Welfare and
Institutions Code section 602 alleged that defendant and appellant, V.E.
(minor), willfully and unlawfully resisted a public officer in the course of
duty, in violation of Penal Code section 148, subdivision (a)(1).

On
January 10, 2012, the juvenile court found the allegation true. Following a disposition hearing on January
25, 2012, the court
adjudged minor a ward of the court, released him to the href="http://www.mcmillanlaw.com/">Department of Public Social Services,
and placed him on probation.

Minor
filed his notice of appeal on January 25, 2012.

II

STATEMENT OF
FACTS

On
December 18, 2011, around 3:00 p.m.,
Deputy Sheriff Donald Vincent Brooks responded to a call that there was an
“incorrigible minor” at the Guiding Light Group Home. Dispatch informed the deputy that minor was
armed with a chain that had a lock attached to it. Upon arrival, Deputy Brooks saw minor on the
street and asked minor to come over to the deputy’s car. When minor walked over to the car, the deputy
ordered minor to put his hands behind his back.
Minor did not comply and kept his hands on his head. Deputy Brooks then put minor’s right hand behind his back,
but minor refused to allow the deputy to touch his left hand. Deputy Brooks warned minor “not to get tough”
with him, and again tried to put minor’s left hand behind his back; minor
jerked away. Deputy Brooks then put
minor on the ground and handcuffed him.

III

ANALYSIS

On
appeal, minor contends that three of the imposed probation terms are
unconstitutionally overbroad and vague because they prohibit him from taking
prescription medication, meeting with pharmacists or persons taking
prescription medication, and associating with lawful graffiti artists.

A>.
Background

Two
reports by minor’s probation officer summarized minor’s prior history of
substance abuse and gang affiliation.
Minor first consumed tobacco, alcohol, and marijuana when he was 11
years old. He smoked approximately a
pack of cigarettes a week through June 3, 2011.
Defendant also drinks approximately an 18-pack of beer a month, or three
liters of whiskey a month. Additionally,
minor smokes approximately one marijuana “joint” a week; he last smoked on June 3,
2011.

Despite
his substance abuse problems, minor has refused to attend the drug and alcohol
program at his group home. He also had
multiple incidents involving marijuana and alcohol usage while living in his
current group home.

Furthermore,
minor was previously associated with a tagging crew gang called the “Desierto
Criminal Krew.” Minor was identified by
law enforcement as a gang member, and he was also identified by gang clothing
and graffiti.

As
a result of minor’s history, the probation officer recommended that minor be
placed on an increased level of probation.
The officer also recommend that minor be prohibited from consuming or
possessing controlled substances, associating with persons possessing
controlled substances, and associating with those engaged in gang activities
and graffiti-related activities.

At
the disposition hearings on July 6,
2011, and January
25, 2012, the
juvenile court stated that it had read and considered the probation officer’s
reports. The court then placed minor on
probation on certain terms and conditions.
On appeal, minor challenges the following terms:

“k. Not knowingly possess, consume, inhale, or
inject any intoxicants, alcohol, narcotics, aerosol products, or other
controlled substances, poisons, illegal drugs, including marijuana, nor possess
related paraphernalia.”

“l>.
Not associate with anyone known to the minor to be in possession of,
sells, or uses any controlled substances or any related paraphernalia.”

“p. Not associate with non-relative individuals
who he/she knows are members of a ‘criminal street gang’ as defined in Penal
Code section 186.22, subdivision (f), or with persons he/she knows are engaged
in graffiti related activities.”

B>.
Probation Terms k and l

Minor
contends that the “controlled substances” probation condition, term k, is
overbroad because it prohibits use of prescription medications. In a related argument, minor contends that
the “controlled substances” references in term l is also overbroad because it
prohibits minor from associating with people legally possessing, selling or
using any controlled substance (i.e., pharmacists).

“A probation condition is
constitutionally overbroad when it substantially limits a person’s rights and
those limitations are not closely tailored to the purpose of the
condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing >In re White (1979) 97 Cal.App.3d 141,
146 [“‘. . . The Constitution, the statute, all case law, demand
and authorize only “reasonable” conditions, not just conditions “reasonably
related” to the crime committed.’
[Citation.] [¶] Careful scrutiny of an unusual and severe
probation condition is appropriate [citation].”].) “[C]onditions of probation that impinge on
constitutional rights must be tailored carefully and ‘reasonably related to the
compelling state interest in reformation and
rehabilitation . . . .’
[Citation.]” (>People v. Delvalle (1994) 26 Cal.App.4th
869, 879.) Similarly, “[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.]”
(In re Sheena K. (2007) 40
Cal.4th 875, 890.)

Here,
minor maintains that: (1) term k fails
to distinguish between illegal controlled substances and legal prescription
drugs; and (2) term l fails to distinguish between associating with known
users/sellers of illegal controlled substances and those who are using/selling
legally prescribed controlled substances.
While we do not believe that these terms would be commonly
misunderstood, or even would be misunderstood by minor, we find the language,
in fact, very broad. “Controlled
substances” are defined and listed in Health and Safety Code sections 11054 and
11055. They include not only schedule I
substances, which generally have no recognized medical use, like heroin (Health
& Saf. Code, § 11054, subds. (c)(11) & (d)(13)), but many other
commonly prescribed medications. Many of
these substances are stored, dispensed, and used in hospitals and pharmacies.

In
view of the great likelihood that minor will at some time either need a legal
and legitimately prescribed controlled substance, or find himself in the
company of someone who is taking a legal and legitimately prescribed controlled
substance, or in a hospital or pharmacy, we agree that probation terms k and l
should be modified to include the concept of illegality.

Therefore
we order minor’s terms of probation revised to read as follows:

“k. Not knowingly possess, consume, inhale, or
inject any intoxicants, alcohol, narcotics, aerosol products, or other
controlled, poisons, illegal drugs, including marijuana, nor possess related
paraphernalia, without a medical prescription and even then, only after a
written notice is given the probation officer by a physician.

“l. Not associate
with anyone known to the minor to be in possession of, sells, or uses any
illegal or illegally-obtained controlled substances or related
paraphernalia.”

>C.
Probation Term p

Minor
also contends that term p is overbroad because it infringes on his right of
association, and it is not narrowly tailored because it prevents him from
associating with those engaged in lawful works of graffiti. The People agree.

In
People v. Lopez (1998) 66 Cal.App.4th
615, a similar issue was presented.
There, the court modified a probation condition that barred the
defendant from any gang association, involvement in gang activities, display of
any gang markings, or wearing of gang clothing.
(Id. at p. 622.) That court found the term href="http://www.mcmillanlaw.com/">constitutionally vague and overbroad in
that it failed to put defendant on proper notice with whom he was prohibited
from associating, what he could wear, and what activities he might lawfully engage
in. (Id.
at pp. 628-631.) Noting that the term
“gang” has both sinister and benign connotations, the court incorporated into
the probation condition the definition of a criminal street gang, as set forth
in Penal Code section 186.22. (>Id. at p. 634.) The court stated that the modification would
eliminate any due process concerns, and the defendant will be unambiguously
notified of the standard of conduct required of him. (Ibid.)

In
this case, modifying term p to prohibit minor’s association with anyone engaged
in unauthorized graffiti-related activities will eliminate concerns about
vagueness or overbreadth.

Therefore
we order minor’s terms of probation revised to read as follows:

“p. Not associate with non-relative individuals
who he/she knows are members of a ‘criminal street gang’ as defined in Penal
Code section 186.22, subdivision (f), or with persons he/she knows are engaged
in unauthorized graffiti related activities.”

IV

DISPOSITION

We
hereby modify minor’s conditions of probation to read as follows:

(1) Term k:
“Not knowingly possess, consume, inhale, or inject any intoxicants,
alcohol, narcotics, aerosol products, or other controlled, poisons, illegal
drugs, including marijuana, nor possess related paraphernalia, without a medical
prescription and even then, only after a written notice is given the probation
officer by a physician.”

(2) Term l:
“Not associate with anyone known to the minor to be in possession of,
sells, or uses any illegal or illegally-obtained controlled substances or
related paraphernalia.”

(3)
Term p: “Not associate with non-relative
individuals who he/she knows are members of a ‘criminal street gang’ as defined
in Penal Code section 186.22, subdivision (f), or with persons he/she
knows are engaged in unauthorized graffiti related activities.”

In
all other respects, the judgment is affirmed.


NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.





We concur:



HOLLENHORST

Acting
P. J.



MILLER

J.