In re Johnny P.

Filed 5/28/08 In re Johnny P. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County. Gary A. Polinsky, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed as modified.

Kiana Sloan-Hillier, 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, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Johnny P. (appellant) appeals from the order of wardship (Welf. & Inst. Code,  602)[1]based on a finding that he committed robbery (Pen. Code, 211) and the order placing him home on probation.

He contends: (1) the case should be remanded for a recalculation of predisposition custody credits, and (2) the conditions of probation, Nos. 15, 16, and 21, must be modified to impose a knowledge requirement.

FACTS

At the adjudication, the evidence established that appellant approached the owner of a local Los Angeles County liquor store. He pointed a gun at her and demanded her money. He then jumped over the counter, and she ran to the back of the store. Appellant left the store, taking a handful of the quarters that she kept in a change box next to her cash register. The robbery was videotaped. After appellant was arrested, he waived his Miranda rights (Mirandav. Arizona (1966) 384 U.S. 436) and admitted the robbery and that he had used a pellet gun.

The juvenile court sustained the petition alleging robbery. It ordered appellant placed home on probation. Three of the conditions of his probation were as follows: 15, Do not associate with . . . anyone disapproved of by the parents [or] probation officer. 16, Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any unlawfully armed person. . . .  21, Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate.

The trial court found that the theoretical maximum term of confinement was five years. It credited appellant with 14 days of precommitment credit.

On April 5, 2007, appellant was arrested, and on April 9, 2007, the juvenile court ordered him detained. On May 9, 2007, the juvenile court ordered appellant placed home on probation.

DISCUSSION

I. Predisposition Credit

Appellant contends that he is entitled to additional predisposition credit beyond the 14 days indicated in the minute order.

We agree that the record is unequivocal with respect to the amount of confinement time appellant may be entitled to if there is a later order of physical confinement. It demonstrates that appellant was confined in juvenile hall for 34 days between his April 5, 2007, arrest, and May 9, 2007, disposition hearing when the juvenile court ordered him placed home on probation.

Section 726, subdivision (c), in pertinent part provides as follows: If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [] . . .  [] Physical confinement means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.

Since an adults term is reduced by credit for preconviction custody, section 726 should be interpreted as entitling a minor to credit for time previously spent in physical confinement when physical confinement is subsequently selected as a disposition. (In re Randy J. (1994) 22 Cal.App.4th 1497, 1503; In re Michael W. (1980) 102 Cal.App.3d 946, 954 [Penal Code section 2900.5, by itself, is inapplicable to juveniles committed through the juvenile court system].) No physical confinement was ordered here: appellant was placed home on probation. Consequently, appellant was not entitled to predisposition confinement credit. Except for noting the potential earning of such credit, there is no need for a remand to grant appellant credit. As no calculation of preconfinement credit was required, we shall order the No. 22 notation in the May 9, 2007, minute order corrected by striking the check mark at No. 22 and deleting the number 14 from that entry.

The decision in In re Pedro M. (2000) 81 Cal.App.4th 550, 556, does not require that we grant appellant 34 days of predisposition credit against confinement. There, the minor was ordered committed to the California Youth Authority. Here, the dispositional order is home on probation, which does not involve physical confinement.

II. The Conditions of Probation

Citing the decision in In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.), appellant contends that his conditions of probation, Nos. 15, 16, and 21, were unconstitutionally vague and overbroad as they failed to contain a knowledge requirement.

We agree as to two of the conditions.

A probation condition should be given the meaning that would appear to a reasonable, objective reader. (People v. Bravo (1987) 43 Cal.3d 600, 606.) According to the decision in Sheena K., supra, 40 Cal.4th 875, to withstand a constitutional challenge based on vagueness apparent on the face of a probation condition, the condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated. (Sheena K., at p. 890.)

The appellant in Sheena K. was placed on probation, subject to the condition that she not associate with anyone disapproved of by probation. (Sheena K., supra, 40 Cal.4th at p. 880.) The Supreme Court agreed with appellant that the condition was unconstitutionally vague and overly broad because it did not include an express knowledge requirement. The court reasoned that, as written, the condition gave the probation officer unlimited power to preclude the minors association with anyone without requiring any prior knowledge of those individuals the probationer must avoid because her probation officer found them unacceptable. (Sheena K., supra, at pp. 890-891.)

Appellant argues that the conditions complained of in this case suffer from the same constitutional defect. The Attorney General concedes that two of the conditions should be modified to add an express knowledge requirement. He concedes that condition No. 15 should be modified to provide: Do not associate with . . . anyone you know is disapproved of by the parents or probation officer. Also, condition No. 21 should be modified to provide: Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where you know drug users congregate.

As to condition No. 16, the Attorney General makes no concession. Appellant asserts that condition No. 16 should be modified to provide: Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any person he knows is unlawfully armed person. The Attorney General argues that adding a knowledge requirement here is superfluous. The use of the term remain implies that the probationer knows the person is unlawfully armed when he stays at that location after discovering the presence of the firearm.

We agree with the Attorney Generals argument that knowledge is implicit in probation condition No. 16. Accordingly, we will accept the Attorney Generals concessions and adopt his position with respect to condition No. 16.

We will order the conditions of probation Nos. 15 and 21 to be modified.

DISPOSITION

The dispositional order of May 9, 2007, which is under review, is modified to provide that condition of probation No. 15 is as follows: Do not associate with . . . anyone you know is disapproved of by the parents or probation officer. Condition of probation No. 21 is modified to provide: Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where you know drug users congregate. The juvenile courts order that appellant is entitled to 14 days of predisposition credit is vacated, and no new order is required. As modified, the orders under review are affirmed.

The juvenile court shall cause its clerk to correct the conditions of probation, Nos. 15 and 21, stated in the minute order of May 9, 2007, to reflect the above modifications in the juvenile courts disposition order. The clerk shall also delete the indication at No. 22 in that same minute order that appellant is entitled to 14 days of predisposition credit.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

ASHMANN-GERST

We concur:

__________________, P. J.

BOREN

__________________, J.

DOI TODD

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