In re Jorge R.

Filed 1/29/07 In re Jorge R. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Charles R. Scarlett, Judge. Modified, remanded with directions and affirmed.

Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Jorge R., a minor, appeals from an order that he remain a ward of the court pursuant to Welfare and Institutions Code section 602[1]by reason of having committed an assault with a firearm (Pen. Code, 245, subd. (a)(2)). The juvenile court ordered appellants physical custody taken from his parents or guardian and that he be committed to the care and custody of the probation department for the purpose of suitable placement in the Camp Community Placement program for a period of nine months. Appellant contends that (1) the true finding with regard to the allegation that he committed assault with a firearm is unsupported by the evidence, (2) the trial court erred in failing to declare whether the offense was a felony or misdemeanor, requiring remand, and (3) the probation conditions requiring him to stay away from disapproved persons and unlawfully armed persons are overbroad and vague, violating his federal constitutional rights to travel and association.

We modify the challenged conditions, remand for the trial court to declare if the offense is a felony or misdemeanor and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 20, 2005, the district attorney filed a section 602 petition against appellant, alleging one count of assaulting Antuwantlay Gordon (Gordon) with a firearm. (Pen. Code, 245, subd. (a)(2).) The petition further alleged that during the commission of the offense, appellant personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a)(1).[2] At the adjudication hearing, the following evidence was introduced. We review that evidence in accordance with the usual rules on appeal. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)

On or about June 13, 2005, at approximately 7:30 a.m., Gordon was walking with Downell Ray Cooper (Cooper) and Coopers sister toward Bret Hart school, at 92nd and Compton, in Los Angeles. Near 8720 South Figueroa Street, appellant and another male approached them. Cooper testified that both males asked Gordon where he was from, which Gordon understood to mean with what gang was he affiliated. Gordon responded, I dont bang. Appellant and his companion said, Fuck. This is hood. Gordon repeated that he did not bang. The males said, Fuck slobs, slobs being a slang term for Bloods. Gordon testified that appellant said nothing, did not strike him, but was just with [the shooter].

With appellant standing next to him, appellants companion swung a pistol at Gordon, who ducked and ran. The companion then shot Gordon once in the lower back from 15 to 20 feet away. Cooper testified that he saw the handle of a gun inside appellants waistband.

Gordon had seen appellant a couple of days earlier, at approximately the same time in the morning. Gordon was walking with his childs mother and met appellant and his sister, who claimed that a cell phone Gordon had found the previous day belonged to them. Gordon did not know appellant and did not give the cell phone to them because appellant had no proof it was theirs. Appellant said he would like [to] get into it with Gordon and that Gordon had better watch [his] back.

Los Angeles Police Detective Peter Verschueren investigated the case. He spoke with Gordon and showed him a photographic six-pack from which Gordon selected and circled appellants photograph. Cooper also selected appellants photograph from a six-pack. Detective Verschueren executed a search warrant at appellants residence on July 9, 2005. He found gang paraphernalia and appellant hiding in his mothers bedroom closet.

In defense, appellant called his probation officer, Sara Jefferson. She reviewed reports from the center that electronically monitored minors, such as appellant, who were on home probation. Those reports indicate when a minor leaves or enters his home or if there is any tampering or problems with the equipment. The record for June 13, 2005, indicated that appellant did not leave the house, and school records indicated that he did not attend school.

But Jefferson also testified that it is possible to tamper with the monitoring equipment. On June 8, 2005, there was a reading that appellant had entered the home, but a female there confirmed by telephone that appellant was not there. Between June 1 and 8, 2005, the records indicated that appellants monitoring equipment had been tampered with eight times. Jefferson testified that appellant could have been out of the house on June 13, 2005, although the equipment registered that he was home.

At the conclusion of the adjudication hearing, the juvenile court found the assault allegation to be true and sustained the petition. It found the gun use enhancement to be not true.

DISCUSSION

I. Sufficiency of the Evidence

Appellant contends that the evidence was insufficient to support the finding that he committed assault with a deadly weapon. He argues that his culpability for that offense was premised upon his aiding and abetting the shooter and that evidence that he was merely present and failed to prevent the crime did not establish that he knew the full extent of the shooters criminal purpose and gave aid and encouragement with the intent or purpose of facilitating the perpetrators assault. This contention is without merit.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) [T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] This standard applies whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.) Reversal on this ground is unwarranted unless upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, at p. 331.) Given this courts limited role on appeal, appellant bears an enormous burden in claiming there was insufficient evidence to sustain the finding. If the finding is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Because the uncontradicted evidence was that appellant did not personally shoot Gordon, we must assess whether there is sufficient evidence to sustain his conviction as an aider and abettor. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed. (Pen. Code, 31.) A person is liable for aiding and abetting when, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, or encouraging, or facilitating the commission of the crime, that person (3) by act or advice aids, promotes, encourages, or instigates the commission of the crime. (People v. Gibson (2001) 90 Cal.App.4th 371, 386.) The test of whether a person aided or abetted in the commission of an offense is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures. (People v. Villa (1957) 156 Cal.App.2d 128, 134.) It is not necessary that the primary actor expressly communicates his criminal purpose to the defendant, as that purpose may be apparent from the circumstances. (People v. Nguyen (1993) 21 Cal.App.4th 518; 531-532.) Whether a person is an aider and abettor may be shown by circumstantial evidence (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094) and is ordinarily a question of fact for the trier of fact (People v. Herrera (1970) 6 Cal.App.3d 846, 852).

An aider and abettor is guilty not only of an offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. (People v. Hickles (1997) 56 Cal.App.4th 1183, 1194.) It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended and his action taken with the intent that the act be encouraged or facilitated are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury. [Citation.] (People v. Croy (1985) 41 Cal.3d 1, 12, fn.5.)

The circumstances presented here provide sufficient evidence to support the finding that appellant aided and abetted the assault with a deadly weapon on Gordon. Appellant was present at the scene, said nothing to protest his companions actions and did nothing to try and stop him. While these facts alone are not enough to establish one as an aider and abettor (People v. Luna (1956) 140 Cal.App.2d 662, 664), they are circumstances to be considered along with the accuseds companionship and conduct before and after the offense. (People v. Laster (1971) 18 Cal.App.3d 381, 388; In re Lynette G., supra, 54 Cal.App.3d at p. 1094.) Appellant and his companion approached Gordon together, each making gang related comments and possessing a firearm.[3]Appellant appeared to have gang affiliations, as gang paraphernalia were taken from his room pursuant to a search warrant. Two days before the shooting, appellant had confronted Gordon who refused to give appellant a cell phone that appellant and his sister claimed was theirs. Appellant had threatened Gordon, warning him to watch [your] back. These facts make it reasonable to infer that the confrontation and shooting of Gordon was not the result of a chance meeting, but was in furtherance of appellants threat made two days earlier. Although Gordon had never seen the shooter before, and presumably the shooter did not know him, appellant and his companion focused only on Gordon, ignoring Cooper and his sister. Appellant likely directed his companion to Gordon, a significant factor in concluding that he aided and abetted in the assault.

If appellant was unaware that his companion had a gun and would shoot Gordon, nonetheless, there was evidence that appellant was also armed with a gun and knew that retaliation or intimidation was intended and that escalation into a shooting, if that was not intended from the outset, was likely. He is responsible for the natural and probable consequences of his assistance.

II. Declaring whether wobbler was felony or misdemeanor

The minute order of the dispositional hearing states that the offense of which appellant was adjudicated was a felony and provided a felony length maximum term of confinement. But the reporters transcript of the adjudication and disposition hearing reflected that the juvenile court did not declare whether the offense was a felony or misdemeanor.

Appellant contends that the trial court erred in failing to declare the assault with a firearm adjudication a felony or a misdemeanor. He argues that it is not sufficient that the offense is pled in the petition as a felony or that a maximum confinement time corresponding to a felony has been given, nor is a notation in a minute order an adequate substitute for a declaration in court. He asserts that the matter must be remanded for such a declaration. We agree.

Section 702 provides in pertinent part: If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. In In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy), our Supreme Court stated: What is not at issue is what the juvenile court must do. The language . . . is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. . . .  [] The requirement is obligatory: section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor. [Citations.] (Manzy, supra, at p. 1204.) The significance of such a declaration is that it determines the maximum period of physical confinement . . . [and] may also have substantial ramifications in future criminal adjudications of the minor, including under Penal Code section 667, subdivision (d)(3)(A) ‑‑ the Three Strikes law. (Manzy, supra, at pp. 1208-1209.) Here, the juvenile court made no express declaration as to whether appellants assault was a misdemeanor or a felony. Consequently, it failed to comply with section 702.

Nonetheless, remand is not automatic. [T]he record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. (Manzy, supra, 14 Cal.4th at p. 1209.) The filing of a section 602 petition alleging a wobbler offense as a felony is similarly insufficient to show that the juvenile court made the determination required by section 702, as the contents of the petition is in the hands of the prosecutor, not the court. (Manzy, supra,at p. 1207.) The requirement is also not met where the minute order reflects that the offense was a felony, when no oral declaration was made in court. (In re Eduardo D. (2000) 81 Cal.App.4th 545, 549.)

We find nothing in the record to indicate that the juvenile court was aware that it had the option of characterizing appellants offense as a misdemeanor. During the disposition hearing, it said nothing reflecting such awareness. It assessed a minimum term of confinement based on appellants offense being a felony, but did not indicate that it knew that it could calculate the minimum term based upon a misdemeanor finding. (Manzy, supra, 14 Cal.4th at p. 1209.) Nothing in the probation report or in the argument of counsel regarding disposition alluded to the trial courts discretion to consider the offense either a felony or a misdemeanor. Although the minute order characterized appellants offense as a felony, that too is insufficient. (In re Eduardo D., supra, 81 Cal.App.4th at p. 549.) Even the fact that the trial court appears to have intended appellants offense to be a felony does not imply awareness of its ability to do otherwise. Without such knowledge, the juvenile court cannot be said to have exercised discretion. The test for determining if the remand is necessary, as articulated in Manzy, is not what the trial court would do if it knew its discretion, but whether it, in fact, was aware of that discretion.

Respondent cites portions of the reporters transcript, claiming that it shows that the juvenile court did order that the maximum period of confinement to be four years . . . [b]ecause four years is the maximum state prison term to be imposed for the felony of assault with a firearm, . . . the court was, to a certainty, declaring the offense to be a felony. As we read the transcript, it provides no insight into whether the juvenile court was aware of its discretion to characterize the crime as a misdemeanor. As a result, this matter must be remanded to the juvenile court to characterize appellants offense as either a felony or misdemeanor.

III. Validity of conditions

At the dispositional hearing, the juvenile court declared that appellant remain a ward of the court and ordered him into the Camp Community Placement program. It imposed numerous conditions of probation, among them that he not associate with . . . anyone else disapproved of by your parents, Probation Officer, or camp staff (condition No. 15)[4]and that he not remain in the presence of any unlawfully armed person[5](condition No. 16).

Appellant contends that these conditions are unconstitutionally vague and overbroad. He argues that without the requirement he actually have knowledge of who are (1) persons disapproved by his parents, probation officer or camp staff and (2) unlawfully armed persons, these particular probation conditions are unconstitutionally overbroad. He further argues that the conditions also suffer from vagueness as they do not provide fair notice of those acts which may lead to a loss of liberty so that ordinary people can understand what conduct is prohibited. He claims that the conditions must be modified to preclude him from staying away from persons known by him to be disapproved or unlawfully armed.

Respondent contends that because appellant did not object to these conditions in the juvenile court, he waived his appellate challenge to them. It argues that, in any event, any violation of a probation condition must be willful, which mandates that appellant know he was in the presence of a prohibited person.

Waiver[6]

Our Supreme Court has indicated that constitutional objections must be interposed in the trial court in order to preserve them for appeal. (See People v. Williams (1997) 16 Cal.4th 153, 250.) The purpose of this waiver doctrine 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. . . . (People v. Walker (1991) 54 Cal.3d 1013, 1023.)

In People v. Welch (1993) 5 Cal.4th 228 (Welch), the California Supreme Court applied the waiver doctrine to challenged conditions of probation. There, the defendant was sentenced to probation on the terms and conditions in the probation report. The defendant failed to object in the trial court to the conditions. On appeal, the defendant urged that the conditions were improper on Bushman/Lent grounds[7]and that his failure to object in the trial court did not preclude appellate review because the type of error constituted an unauthorized sentence, entered in excess of jurisdiction and thus could be raised at any time. (Welch, supra, at p. 235.) The Supreme Court held that the failure to timely challenge the reasonableness of a probation condition on Bushman/Lent grounds waived the claim on appeal because a timely objection discouraged imposition of invalid conditions and reduced costly appeals brought on that basis. (Welch, supra, at p. 235.) It excluded from this general waiver rule claims challenging probation conditions involving pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. (Ibid.) Thus, Welch dealt with unreasonable and inappropriate conditions that should not have been imposed because they failed to relate to the defendants offense, did not relate to future criminality or regulated non-criminal conduct.

Our colleagues in Division Four of this court, in In re Justin S. (2001) 93 Cal.App.4th 811 (Justin S.), had occasion to consider the application of Welch to a minors failure to object in the trial court to a probation condition that a defendant not associate with any gang members and anyone disapproved of by parent(s) . . . . (Justin S., at p. 813.) On appeal, the defendant challenged the condition as vague and overbroad. The Court of Appeal concluded that while the Welch holding applied to juvenile proceedings, it was limited to probation conditions challenged on the ground that they were unreasonable. Welch did not apply to the condition with which it was faced which was a pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court (Justin S., at pp. 814-815, quoting from Welch, supra, 5 Cal.4th at p. 235) and thus did not require a prior objection to the condition in the trial court.

We conclude that the claims asserted here have not been waived because, similar to Justin S., they present pure questions of law that can be resolved without regard to the sentencing record in the trial court and are not therefore within the waiver rule announced in Welch. Furthermore, unlike in Welch, appellant does not contend that the probation conditions are unreasonable under Bushman/Lent and therefore improperly imposed. Rather, he does not dispute the propriety of the subject matter of the conditions but only claims that they must be modified so as not to infringe his constitutional rights.

Respondents reliance on In re Josue S. (1999) 72 Cal.App.4th 168 and In re Abdirahman S. (1997) 58 Cal.App.4th 963, 969-971 is misplaced. In Josue S., the Court of Appeal found Welch controlling because the probation condition involved was challenged principally on the ground that it bore no reasonable relationship to the facts underlying the wardship, a Bushman/Lent ground. The accompanying constitutional challenge was characterized as merely a suggestion and never explicitly articulated (In re Josue S., supra, at p. 170), and the focus of the opinion was on the question of whether the Welch waiver rule was applicable to juvenile proceedings. Abdirahman S. involved the challenge of conditions of probation on Bushman/Lent grounds and did not present pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. (People v. Welch, supra, 5 Cal.4that p. 235.)

Validity of probation conditions[8]

Appellant contends that the probation conditions that he not associate with disapproved persons and not remain in the presence of unlawfully armed persons, without including a requirement that he know that the person is disapproved or unlawfully armed, is unconstitutionally vague and overbroad. He argues that they do not provide fair notice of those acts that can lead to a loss of liberty and are so broad that they might sanction constitutionally protected conduct. Respondent argues that the challenged probation conditions are constitutional, stating that, the probation conditions imposed need not be modified because the knowledge requirement is implied in the condition of probation. We agree with appellant.

The First Amendment to the federal Constitution guaranties the right to associate. (Timmons v. Twin Cities Area New Party (1997) 520 U.S. 351, 357; Dawson v. Delaware (1992) 503 U.S. 159, 163.) Provisions restricting the rights of a criminal defendant or juvenile to associate have been found improper where they fail to provide adequate guidance as to with whom the probationer can, and with whom the probationer cannot, associate. In Justin S., supra, 93 Cal.App.4th 811, the Court of Appeal found a prohibition of a minors association with [any] gang members to be unconstitutionally overbroad. The Court of Appeal stated: Prohibiting association with gang members without restricting the prohibition to known gang members is a classic case of vagueness. [Citation.] Such a condition of probation suffers from constitutionally fatal overbreadth. (Id. at p. 816.) The appellate court narrowed the condition to preclude the juvenile from associating with persons known by him to be associated with a gang.

In People v. Garcia, supra, 19 Cal.App.4th at page 102, the Court of Appeal found a probation condition that the probationer not associate with any felons, ex-felons or users or sellers of narcotics to be unconstitutionally overbroad and violative of the probationers freedom of association. The Court of Appeal in Garcia stated: A condition of probation that prohibits appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics, is overbroad [and therefore] 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. [Citation.] (Ibid.) And, in In re Kacy S. (1998) 68 Cal.App.4th 704, the Court of Appeal found that the record did not justify the sweeping limitation effected by a probation condition similar to that presented here; that a probationer not associate with any persons not approved by his probation officer.

With respect to probation condition No. 15, we conclude that the vagueness and overbreadth is beyond constitutionally tolerable limits. It is because of the breadth of appellants mothers and probation officers power to virtually preclude appellants association with anyone that mandates that he be advised in advance of those who he must avoid. The appropriate remedy for such a violation is to modify the condition, as appellant asks, to narrow its reference to persons known to the probationer to be associated with a gang. [Citations.] (In re Justin S., supra, 93 Cal.App.4th at p. 816.) We shall therefore grant appellants request to modify condition No. 15, to persons known by him to be disapproved.

Appellants challenge to probation condition No. 16, that he not remain in the presence of any unlawfully armed person, is similarly constitutionally infirm. It precludes appellant from being in the presence of a person who may be carrying a concealed weapon or displaying a weapon that appellant is unaware the person possesses unlawfully. By simply modifying the condition to require that appellant not remain in the presence of a person known to be unlawfully armed, all uncertainty is removed, inadvertent violation is avoided and constitutional mandates satisfied.

In any event, it is unclear why respondent even objects to the modification of these probation conditions. If it believes that knowledge is implied in the challenged conditions, what possible detriment is there in making the knowledge requirement explicit. While we question whether there is such an implication, even if implied, modifying the judgment to expressly reflect the limitation can only have a beneficial effect. As aptly stated in People v. Garcia: [T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication. (People v. Garcia, supra, 19 Cal.App.4th at p. 102.)

Respondents reliance on People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 is misplaced. There, in response to a heinous situation in which gang members had virtually taken over a four block area of Rocksprings and engaged in various types of criminal and offensive conduct, virtually holding residents in that area hostage, the California Supreme Court upheld a civil, anti-nuisance preliminary injunction which, among other things, prohibited association with members of a particular gang. The Supreme Court concluded that the two types of constitutionally protected associational rights, close personal affiliation of intimate values such as association for political, social, economic educational or religions ends and association to engage in protected speech or religion (id. at pp. 1110-1111) were not involved, stating: Freedom of association, in the sense protected by the First Amendment, does not extend to joining with others for the purpose of depriving third parties of their lawful rights. (Id at p. 1112.) It was in that context that the Court suggested that knowledge was implied in the injunction. That conclusion reached in a civil action to enjoin a nuisance where the injunction did not infringe on protected constitutional rights has little bearing in the present criminal matter where protected associational rights are involved.

DISPOSITION

This matter is remanded to the juvenile court to declare whether the adjudicated offense is a misdemeanor or a felony and to modify the challenged probation conditions to read as follows: 15. Do not associate with co-minor or anyone known to you to be disapproved of by parent/probation officer/camp staff or Freddie Estrada and 16. Do not have any deadly or dangerous weapon in your possession, nor remain in the presence of any person known by you to be unlawfully armed. Except to the extent of these modifications, the challenged order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, P. J.

BOREN

We concur:

______________________, J.

DOI TODD

______________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] The petition refers to section 12022.5, subdivision (a)(1). But effective January 1, 2003, prior to the alleged assault, section 12022.5 was amended to eliminate subdivision (a)(1), which in substance became subdivision (a).

[3] The trial courts not true finding on the personal firearm use allegation under Penal Code section 12022.5 simply indicates that it did not find beyond a reasonable doubt that appellant personally used a firearm. It does not preclude consideration of the evidence that appellant carried a gun, along with all of the other evidence, in evaluating if appellant aided and abetted in the assault.

[4] Condition No. 15 is referred to as condition No. 14 in the reporters transcript.

[5] The box on the minute order next to the probation condition that appellant not remain in the presence of any unlawfully armed person was not checked.

[6] This issue is currently before our Supreme Court in In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980.

[7]People v. Lent (1975) 15 Cal.3d 481, 486 and In re Bushman (1970) 1 Cal.3d 767, disapproved of in People v. Lent at page 486, footnote 1, each found the same three requirements for a probation condition to be invalid: (1) it must have no relationship to the crime of which the offender was convicted, (2) it must relate to conduct which is not in itself criminal, and (3) it must require or forbid conduct which is not reasonably related to future criminality. Lent however disapproved of Bushmans use of the disjunctive, or, between the three conditions and instead used the conjunctive, and. In other words, Lent required that all three requirements must be met for a condition to be invalidated.

[8] See footnote 6, ante.