In re Daniel S.

Filed 3/12/07 In re Daniel S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

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

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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The court readjudged appellant, Daniel S., a ward of the court (Welf. & Inst. Code, 602) after he admitted allegations charging him with battery (Pen. Code, 242) and that he committed the battery offense for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)). On September 19, 2006, the court committed Daniel to the Elkhorn Boot Camp for a period not to exceed 365 days. On appeal, Daniel contends the condition of probation prohibiting him from possessing deadly or dangerous weapons is constitutionally vague and overbroad. We will reject this contention.

FACTS

On December 30, 2005, Daniel and several other suspects attacked Enrique Rodriguez in his apartment in Firebaugh, beating him and knocking him to the ground.

DISCUSSION

At Daniels disposition hearing, the court, without objection, ordered Daniel, as part of his conditions of probation not to own or have any dangerous or deadly weapons in [his] possession. Daniel contends this condition is constitutionally vague and overbroad because weapons can literally include anything from a kitchen knife to a rock[.] We will find that Daniel waived this issue by his failure to object in the trial court and, alternatively, that there is no merit to this contention.

In In re Josue S. (1999) 72 Cal.App.4th 168, the court stated:

At the outset, we address the suggestion that the imposition of the conditions of probation are constitutionally overbroad or vague. The California Supreme Court has repeatedly held that constitutional objections must be interposed in order to preserve such contentions on appeal. [Citations.] . . . The reason for these rules has been articulated by the California Supreme Court as follows: An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] [The California Supreme Court has held,] The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . . [Citation.] [Further, the California Supreme Court has noted:] No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] [Citation.] (In re Josue S. (1999) 72 Cal.App.4th 168, 170-171.)

In accord with In re Josue S. we conclude that Daniel waived his claim that the weapons condition at issue is vague and overbroad by his failure to object in the trial court.

In any event, even if this issue were properly before us, we would reject it because the meaning of the terms deadly and dangerous weapons has been clearly explained in case law. Thus in People v. Henderson (1999) 76 Cal.App.4th 453, the court stated:

In . . . People v. Simons (1996) 42 Cal.App.4th 1100 . . . the court was asked to decide whether a screwdriver could be a deadly weapon under section 417.8. [Citation.] The Simons court began its analysis by reciting the long-standing distinction between weapons that are inherently deadly or dangerous and those that are deadly or dangerous based only on the facts of the particular case: There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are dangerous or deadly or others in the ordinary use for which they are designed, may be said as a matter of law to be dangerous or deadly weapons. This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed, may not be said as a matter of law to be dangerous or deadly weapons. When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a dangerous or deadly manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a dangerous or deadly weapon may be thus established, at least for the purposes of that occasion. (People v. Henderson, supra, 76 Cal.App.4th at pp. 467-468.)

Thus, under established case law the weapons condition at issue would prohibit Daniel from possessing objects that are weapons in the strict sense of the word and objects whose circumstances of possession indicated that he intended to use them as weapons. Further, absent these latter circumstances the weapons condition would not prohibit Daniel from owning or possessing everyday household item like steak knives, nail clipper, or apples. Accordingly, we reject Daniels contention that the weapons condition at issue is constitutionally vague or overbroad.

DISPOSITION

The judgment is affirmed.

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