In re David R.

Filed 4/18/07 In re David R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from an order of the Superior Court of Fresno County. Martin Suits, Commissioner.

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

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On May 15, 2006, the court readjudged appellant, David R., a ward of the court (Welf. & Inst. Code, 602) after it found true an allegation that he committed battery on an officer (Pen. Code, 243, subd. (b)). On May 31, 2006, the court committed David to juvenile hall for 90 days, to be served consecutively to his current commitment, set the maximum term of confinement as two years and two months, reimposed various probation conditions, and credited him with 389 days of predisposition custody credit.

On appeal, David contends the probation conditions prohibiting him from (1) associating with anyone unless approved of by his parents or probation officer and (2) possessing deadly or dangerous weaponsare constitutionally vague and overbroad. David also contends, and the People concede, he is entitled to an additional day of predisposition custody credit. As we shall explain, although we reject Davids contention with respect to the prohibition against possession of dangerous and deadly weapons, we conclude the other probation condition should be modified to expressly state that he must have knowledge of whom his parents or the probation officer disapprove. We also agree that the predisposition custody credits must be modified.

FACTS

On April 26, 2006, as a juvenile correctional officer was trying to keep David separated from another minor with whom he had been fighting, David socked the officer in the stomach. The officer placed David in an upper torso hold and placed him on the ground. In the process, the officer suffered an injury to his left arm.

DISCUSSION

A. The Probation Conditions

David challenges two probation conditions as being unconstitutionally vague and overbroad: (1) that he not associate with anyone not approved of by the minors parents or the probation officer; and (2) that he not possess any dangerous or deadly weapons. Although David acknowledges he did not object to these probation conditions on constitutional grounds in the juvenile court, he contends he did not forfeit appellate review of the issue. While the People assert Davids claim is forfeited, we disagree. Our Supreme Court recently concluded that a juvenile defendant did not forfeit her right to claim on appeal that a probation condition which forbade her from associating with anyone probation disapproved of was unconstitutionally vague and overbroad even though she failed to assert a constitutional objection to the condition in juvenile court. (In re Sheena K. (40 Cal.4th 875, 889 (Sheena K.).) Although the court stated that not all constitutional defects in probation conditions may be asserted for the first time on appeal, the court explained that where the challenge to the probation condition presents an asserted error that is a pure question of law and which is easily remediable on appeal by modification of the condition, such error may be raised for the first time on appeal. (Id., at pp. 888-889.) As in Sheena K., the probation conditions at issue here raise a pure question of law and easily may be remedied on appeal by modification of the conditions. Accordingly, we conclude David did not forfeit his constitutional challenges to the conditions, each of which we discuss below.

1. The Association Condition

At a September 16, 2005 disposition hearing, the court ordered the following as a condition of probation: Not to associate with anyone whom the minor knows to be disapproved of by the minors parents or the probation officer. Not to associate with any person known to the minor to be a gang member or anyone not approved of by the minors parents or the probation officer.^[1] The minute order for that hearing states the condition as follows: Not to associate with ______ [any known gang members], or anyone disapproved by mother or father. The words gang members are circled and the phrase + DPO as stated is handwritten next to the word father. David contends this condition is unconstitutionally overbroad because it would require him to receive prior approval before associating with anyone.

Our Supreme Court recently held in Sheena K., supra, that a probation condition forbidding a juvenile defendant from associating with anyone disapproved of by probation was unconstitutionally vague, since it did not contain an express requirement that the defendant know the identity of those individuals of which probation disapproved. (Sheena K., supra, 40 Cal.4th at pp. 891-892.) To pass constitutional muster, such a provision must state that the minor has knowledge of the person disapproved of by the authorities. (Id. at p. 892.) Although the court did not decide whether the probation condition was also unconstitutionally overbroad, the court noted that appellate courts had reached such a conclusion in People v. Lopez (1998) 66 Cal.App.4th 615, 628, 629 and In re Kacy S. (1990) 68 Cal.App.4th 704, 712-713. (Sheena K., supra, 40 Cal.4th at pp. 890-891 & fn. 8.)

The People apparently concede a probation condition that prohibits association with particular individuals must include a knowledge element. They assert, however, that such an element is included in the above quoted condition. The first sentence of the condition states that David must not associate with anyone whom the minor knows to be disapproved of by the minors parents or the probation officer. The next sentence states that David must not associate with any person known to the minor to be a gang member or anyone not approved of by the minors parents or the probation officer. The People reason that when the two sentences are read together, they direct David not to associate with known gang members or persons he knows to be disapproved of by his parents or the probation officer. David contends, however, that because the knowledge requirement was not restated in the second half of the second sentence, it implies that knowledge was not included as a requirement.

The court in Sheena K. agreed that an appellate court may modify a probation condition that prohibits association with individuals not approved of by a probation officer to impose an explicit knowledge requirement so as to render the condition constitutional. (Sheena K., supra, 40 Cal.4th at p. 892.) As the parties agree that knowledge is a required element of such a probation condition, but disagree on whether that requirement clearly is included in the probation condition as stated on the record, we will simply order a modification of the second sentence of the condition so that it clearly includes the minors knowledge. If as the People concede the requirement should be included, modifying the judgment to expressly reflect the limitation can only have a beneficial effect. As aptly stated in People v. Garcia (1993) 19 Cal.App.4th 97, 102: [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.

2. The Weapons Condition

At a December 19, 2003 disposition hearing, the court ordered the following as a condition of probation: You are not to own or have in your possession any dangerous or deadly weapons.^[2] David contends this condition is vague and overbroad because the term weapon can encompass practically any household object.

We reject this contention because the meaning of the terms deadly and dangerous weapons has been explained clearly 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 [Penal Code] 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 David from possessing objects that are weapons in the strict sense of the word and objects whose circumstances of possession indicated he intended to use them as weapons. Further, absent these latter circumstances the weapons condition would not prohibit David from owning or possessing everyday household item like steak knives, nail clippers, or apples. Accordingly, we reject Davids contention that the weapons condition at issue is constitutionally vague or overbroad.

B. The Credits Issue

David contends, and the People concede, the juvenile court miscalculated his predisposition custody credits. Though David did not raise the issue to the juvenile court, the calculation of custody credits may be raised for the first time on appeal. (In re Antwon R. (2001) 87 Cal.App.4th 348, 350-353.)

The probation officers report states that David was entitled to 335 days of custody credit up to April 6, 2006, and 54 days of credit from April 7, 2006 to May 31, 2006. As both parties recognize, the total days from April 7, 2006 to May 31, 2006 is actually 55. Thus, Davids total predisposition custody was 390 days, but the juvenile court awarded him only 389 days of predisposition credits. Accordingly, we shall modify the May 31, 2006 disposition order to reflect 390 days rather than 389 days of predisposition credits.

DISPOSITION

The May 15, 2006 adjudication order is affirmed. The disposition order of May 31, 2006 is ordered corrected to award David 390 instead of 389 days of predisposition credits. The probation condition that was ordered on May 31, 2006 to remain in full force and effect that David refrain from associating with anyone not approved of by his parents or the probation officer is modified to provide that David is to refrain from associating with anyone known by David to be disapproved of by his parents or the probation officer. As modified the May 31, 2006 disposition order is affirmed.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

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

^[1]This probation condition was reimposed in subsequent hearings, including the May 31, 2006 disposition hearing at issue here, when the court ordered that all prior orders not modified remain in full force and effect.

^[2]By the juvenile courts subsequent orders, this probation condition remained in full force and effect through subsequent hearings, including the May 31, 2006 disposition hearing at issue here, without modification.