In re Matthew S.
Filed 4/4/07 In re Matthew S. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
In re MATTHEW S., a Person Coming Under the Juvenile Court Law. | B192928 |
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW S., Defendant and Appellant. | (Los Angeles County Super. Ct. No. KJ27735) |
APPEAL from an order of the Superior Court of Los Angeles County, Phyllis Shibata, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed as modified.
Marta I. Stanton, 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, Senior Assistant Attorney General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Matthew S. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding by the court that he possessed on school grounds a locking blade knife with a blade more than two and one-half inches long in violation of Penal Code section 626.10, subdivision (a), a misdemeanor, and his admission that he carried a switchblade knife in violation of Penal Code section 653k, a misdemeanor, and possessed 28.5 grams or less of marijuana in violation of Health and Safety Code section 11357, subdivision (b), a misdemeanor. He was placed home on probation upon various terms and conditions, including probation condition number 21 that he not use or possess narcotics, controlled substances, poisons, or related paraphernalia and stay away from places where users congregate. He claims that probation condition is unconstitutionally overbroad and vague in violation of his federal constitutional right of association and right to travel. For reasons stated in the opinion, we modify that condition of probation and affirm the order of wardship.
FACTUAL AND PROCEDURAL SUMMARY
On November 9, 2005, while at Claremont High School in Claremont, appellant possessed a locking blade knife in his pocket. The blade was more than two and one-half inches long. In defense, appellant testified that he had been hiking the day before and mistakenly left the knife in his pocket.
On January 2, 2006, appellant possessed a switchblade knife, with a blade length of approximately three and one-half inches, in his pants pocket. Additionally, he had a small plastic baggie containing marijuana in his right front jacket pocket.[1]
DISCUSSION
Appellant contends probation condition number 21 is unconstitutionally overbroad and vague in violation of his federal constitutional right of association and right to travel. Appellant did not object to this condition at sentencing and respondent argues that he waived his challenge to it.
On March 15, 2007, our Supreme Court in In re Sheena K. (March 15, 2007, No. S123980) ___ Cal.4th ___ [55 Cal.Rptr.3d 716], concluded that a challenge to a condition of probation as facially vague and overbroad, which presented a pure question of law that could be resolved without reference to the particular sentencing record developed in the trial court, was not foreclosed by a failure to object in the juvenile court. Additionally, the court concluded that a probation condition forbidding a minors association with anyone disapproved of by probation was vague in that it did not notify the defendant in advance with whom she might not associate. The court agreed that modification of the probation condition to impose an explicit knowledge requirement [was] necessary to render the condition constitutional. [As examples, the court cited] In re Justin S. [(2001)] 93 Cal.App.4th [811,] 816 . . . [probation condition modified to forbid the minors association with any person known to you to be a gang member]; People v. Lopez [(1998)] 66 Cal.App.4th [615,] 629, fn. 5 . . . [condition of probation modified to prohibit defendant from associating with any person known to defendant to be a gang member]; People v. Garcia (1993) 19 Cal.App.4th 97, 103 . . . [condition of probation modified to provide that the defendant is not to associate with persons he knows to be users or sellers of narcotics, felons, or ex-felons].) (In re Sheena K., supra, ___ Cal.4th ___ [55 Cal.Rptr.3d at pp. 730-731].)
The subject probation condition here suffers from the same lack of a specific knowledge requirement. The condition must be modified to impose an explicit requirement that appellant stay away from areas he knows to be places where users congregate.[2]
DISPOSITION
Probation condition number 21 is modified to read, Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from
places you know to be where users congregate. In all other respects, the order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by San Diego County Property line attorney.
[1] The facts regarding the January 2, 2006 incident are taken from the probation report.
[2] Contrary to respondents claim, probation condition number 22, that appellant not associate with persons known to be users or sellers of narcotics, does not cure the defect of number 21. Appellant could very well avoid persons known to him to be users or sellers of narcotics but still unknowingly be in a place where users congregate.
