In re Darius R.
Filed 7/25/07 In re Darius R. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re DARIUS R., a Person Coming Under the Juvenile Court Law. | B191372 (Los Angeles County Super. Ct. No. KJ27471) |
THE PEOPLE, Plaintiff and Respondent, v. DARIUS R., Defendant and Appellant. |
APPEAL from an order of the Superior Court of Los Angeles County,
James Lillicrap, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed as modified.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Darius R. was declared a ward of the juvenile court after the court sustained a petition alleging he had committed second degree robbery. On appeal Darius R. contends one of his probation conditions should be modified to conform to the oral pronouncement of disposition and another is unconstitutional. We affirm the order as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Darius R. entered a donut shop and purchased a donut from the clerk, Emma Munoz. As Munoz opened the cash register to give Darius R. his change, he punched her in the face with his fist, took $80 from the register and fled.
The People filed a wardship petition pursuant to Welfare and Institutions Code section 602 on July 12, 2005 alleging Darius R. had committed second degree robbery (Pen. Code, 211). The juvenile court sustained the petition, determined the offense to be a felony within the meaning of Penal Code section 1192.7 and Welfare and Institutions Code section 707, subdivision (b), declared Darius R. a ward of the court, ordered him into a three-month camp community placement program and imposed certain terms and conditions of probation. Darius R.s maximum period of physical confinement was calculated as five years.
DISCUSSION
1. Probation Condition 21
As one of Darius R.s conditions of probation (condition 21), the juvenile court ordered, [D]o not use or possess narcotics, controlled substances, poisons, or related paraphernalia. Stay away from known places where users congregate. As part of the minute order from Darius R.s April 14, 2006 disposition hearing, however, the conditions of probation form checked by the court provided, Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate. Darius R. contends, and the People agree, the oral pronouncement of judgment controls over the clerks minute order; and any discrepancy between the two is presumed to be clerical error in the minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471), which can be corrected at any time to reflect the courts oral pronouncement. (See People v. Mitchell (2001) 26 Cal.4th 181, 183, 185-188.) Accordingly, as requested by Darius R., we direct the minute order of the disposition hearing corrected to state as probation condition 21 that Darius must stay away from known places where users congregate.[1]
2. Probation Condition 16
As an additional probation condition (condition 16), the juvenile court at disposition ordered, Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any know[n] unlawfully armed person.[2] Darius R. did not object to this condition when it was imposed, but he now contends the phrase deadly or dangerous weapon is unconstitutionally vague and overbroad on the ground any object can be used as a deadly weapon. Darius R. urges us either to strike the condition or to modify it.
Because a challenge to a probation condition as facially vague or overbroad presents a pure question of law, it is not foreclosed by the failure to object in the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
Probation condition 16, a standard condition of probation, is not unconstitutionally vague. The term deadly weapon has a well-settled meaning: The definition of a deadly weapon as . . . one likely to produce death or great bodily injury is equally established in California case law [citations]; . . . The close parallel between the dictionary definition and the one employed in the case law simply reinforces the conclusion that deadly weapon is not vague or ambiguous. (People v. Rodriguez (1975) 50 Cal.App.3d 389, 398-399.) This portion of probation condition 16 is properly interpreted to prohibit Darius R. from possessing inherently dangerous or deadly weapons as enumerated by statute and from possessing other objects, including ordinary household items, in circumstances that could reasonably be understood as reflecting an intention to use them in a deadly or dangerous fashion. Because no other interpretation of condition 16 would be reasonable, no modification of the condition is necessary.
DISPOSITION
Probation condition 21 is modified to read, Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia. Stay away from known places where users congregate. As modified, the order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERLUSS, P. J.
We concur:
JOHNSON, J.
ZELON, J.
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[1] Although requiring Darius R. to stay away from places where users are known to congregate, rather than known places where users congregate, might be a clearer articulation of the prohibition, we understand the two formulations to have the same meaning.
[2] Both parties refer to the substance of condition 16 as it appears in the conditions of probation form. Although the juvenile courts oral pronouncement of condition 16 fails to include the knowledge requirement, an express condition of knowledge is constitutionally required. (In re Sheena K. (2007) 40 Cal.4th 875, 891.) Accordingly, as to condition 16, the oral pronouncement of judgment must yield to the condition as recited in the minute order.
