In re Devin C. CA4/1

Filed 7/17/13 In re Devin C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE

STATE OF CALIFORNIA

In re DEVIN C., a Person Coming Under
the Juvenile Court Law.
D062312
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. JCM230394)

v.

DEVIN C.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia

Ann Bashant, Judge. Affirmed with directions

Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
 Following an adjudication hearing, the juvenile court found true beyond a

reasonable doubt the allegations in a delinquency petition that defendant and appellant

Devin C. committed two counts of misdemeanor battery in violation of Penal Code1

section 242 (counts 2 & 3).2 Pursuant to Welfare and Institutions Code section 602, the

court at the disposition hearing adjudged Devin a ward of the court and designated the

minor as a dual status youth pursuant to Welfare and Institutions Code section 241.1,

subdivision (e), with dependency as the lead court. The court ordered Devin to comply

with various probation conditions and ordered him placed in a licensed residential

treatment facility.

Devin contends this matter should be remanded to the juvenile court because the

probation condition that he not possess a weapon or similar item allegedly is

constitutionally invalid for lack of a scienter requirement. Devin also contends in his

opening brief that remand is necessary because the record is insufficient to calculate his

precommitment custody credit.

As we explain, we disagree the matter needs to be remanded because we conclude

the probation condition is "sufficiently precise" for Devin to know what is required of

him and because the parties in their subsequent briefing agree that Devin is entitled to 71

days of precommitment custody credits.

1 Unless otherwise noted, all statutory references are to the Penal Code.

2 The court dismissed for want of evidence count 1 of the petition charging Devin
with misdemeanor assault by means of force likely to produce great bodily injury. (See
§ 245, subd. (a)(1).)
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 OVERVIEW

Devin resided at the Polinsky Children's Center (center) in May 2012. In the

morning of May 2, 2012, staff members Jorge De la Paz and Sean Thompson conducted a

routine search of all the residence rooms at the center after a staff member reported

juveniles at the center were smoking marijuana the previous night.

Devin did not want his room searched and told Thompson as much. Devin then

pushed Thompson as Thompson searched his room. When De la Paz arrived at Devin's

room, Devin attempted to block him and then pushed De la Paz into the door. Devin was

physically restrained and was subsequently arrested by San Diego police officers. No

marijuana was found during the search of Devin's room.

DISCUSSION

A. Validity of Probation Condition that Devin Not Possess a Weapon

At the disposition hearing, the court imposed on Devin the following condition of

probation: "The minor shall not use, possess, transport, sell or have in or under his[]

control any firearm, replica, ammunition or other weapon, including a knife, any

explosive, or any item intended for use as a weapon, including hunting rifles or

shotguns." Devin contends this "weapons" condition is constitutionally invalid for lack

of a scienter requirement.

This issue was recently addressed in People v. Moore (2012) 211 Cal.App.4th

1179. There, the defendant was convicted for attempted second degree robbery and

misdemeanor vandalism. At sentencing, the court imposed a variety of probation

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conditions, including a condition similar to the one at issue here that provided: "Do not

own, use, or possess any dangerous or deadly weapons, including firearms, knives, and

other concealable weapons." (Id. at p. 1183.) Like Devin in our case, the defendant in

People v. Moore contended that this probation condition was unconstitutionally vague

because it lacked an express knowledge requirement. (See ibid.)

Because the court in People v. Moore was presented with the nearly identical issue

before us and because it undertook an in-depth analysis of that issue, we cite liberally to

that case and its discussion of the applicable law:

"Trial courts have broad discretion to prescribe probation conditions to foster

rehabilitation and protect public safety. [Citations.] A probation condition that imposes

limitations upon constitutional rights must be narrowly tailored to achieve legitimate

purposes. [Citations.] Further, '[a] probation condition "must be sufficiently precise for

the probationer to know what is required of him [or her], and for the court to determine

whether the condition has been violated," if it is to withstand a challenge on the ground of

vagueness. [Citation.]' [Citations.] 'A probation condition which either forbids or

requires the doing of an act in terms so vague that persons of common intelligence must

necessarily guess at its meaning and differ as to its application, violates due process.'

[Citations.] The 'underpinning of a vagueness challenge is the due process concept of

"fair warning." [Citation.] The rule of fair warning consists of "the due process concepts

of preventing arbitrary law enforcement and providing adequate notice to potential

offenders". . . .' [Citations.]

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 "Beginning with People v. Garcia (1993) 19 Cal.App.4th 97, California appellate

courts have routinely added an explicit knowledge requirement to probation conditions

prohibiting a probationer from associating with certain categories of persons, frequenting

or remaining in certain areas or establishments, and possessing certain items. [Citation.]

[Fn. omitted.] '[T]here is now a substantial uncontradicted body of case law establishing,

as a matter of law, that a probationer cannot be punished for presence, possession,

association, or other actions absent proof of scienter.' [Citation.]

"[People v.] Freitas [(2009) 179 Cal.App.4th 747], relied upon by [the defendant],

modified a probation condition prohibiting the defendant from owning, possessing, or

having custody or control of any firearms or ammunition to incorporate an express

scienter requirement. [Citation.] Freitas acknowledged that firearms and ammunition

were readily recognizable, and it was 'unnecessary to specify that defendant must know a

gun is a gun.' [Citation.] However, Freitas agreed with the defendant that 'without the

addition of a scienter requirement, he could be found in violation of probation if he

merely borrows a car and, unbeknownst to him, a vehicle owner's lawfully obtained gun

is in the trunk.' [Citation.] The court observed that former section 12021 (prohibiting

felons from possessing firearms, now § 29800, subd. (a)(1)), had been construed to

contain an implied knowledge requirement. Moreover, the jury instruction relevant to

that offense listed knowledge as an element. Freitas therefore found it appropriate to

modify the probation condition to add an express knowledge requirement, because 'the

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law has no legitimate interest in punishing an innocent citizen who has no knowledge of

the presence of a firearm or ammunition.' [Citation.]

"The parties here do not dispute that if [the defendant] unknowingly was to

possess a weapon or firearm, he would not be in violation of probation. The parties do

disagree, however, regarding whether due process requires that the probation condition

be modified to include an express knowledge requirement, or whether modification is

unnecessary because a knowledge requirement is already 'manifestly implied.' We

believe the latter view is correct.

"Certainly the weapons prohibition at issue here is distinct from many of the

associational, presence, and possession prohibitions that are often the subject of express

modifications. Where a probation condition prohibits association with certain categories

of persons, presence in certain types of areas, or possession of items that are not easily

amenable to precise definition, 'an express knowledge requirement is reasonable and

necessary. The affiliations and past history of another person may not be readily

apparent without some personal familiarity. Similarly, despite the presence of gang

graffiti, sites of gang-related activity may not be obvious to all. And it takes some

experience or training to identify what colors, symbols, hand signs, slogans, and clothing

are emblematic of various criminal street gangs.' [Citation.]

"In contrast, there is no ambiguity regarding what is prohibited here: as [People v.]

Freitas pointed out, it is unnecessary to specify that defendant must know a gun is a gun.

[Citations.] As we explained in In re R.P., the term 'dangerous or deadly weapon'

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likewise has a clearly established meaning. (In re R.P. [(2009)] 176 Cal.App.4th [562,]

567-568.) There, we held that the phrase 'dangerous or deadly weapon' was not

unconstitutionally vague when used in a probation condition. (Id. at p. 565.) After

surveying the relevant statutes, case law, jury instructions, and a legal dictionary, we

explained: 'legal definitions of "deadly or dangerous weapon," "deadly weapon,"

"dangerous weapon," and use in a "dangerous or deadly" manner, consistently include the

harmful capability of the item and the intent of its user to inflict, or threaten to inflict,

great bodily injury.' (Id. at p. 568.) We concluded the phrase had a plain, commonsense

meaning: it prohibited possession of items specifically designed as weapons, and other

items not specifically designed as weapons that the probationer intended to use to inflict,

or threaten to inflict, great bodily injury or death. (Id. at p. 570.) The condition was

therefore 'sufficiently precise for [the probationer] to know what is required of him.' (Id.

at p. 568.) Likewise, the weapons prohibition here is sufficiently precise to inform [the

defendant] of what is required of him, and for a court to determine whether the condition

has been violated. Because [the defendant] can have no doubt about what is prohibited,

innocent or inadvertent violation of the condition is far less likely than in cases in which

the parameters of the probation condition are imprecise.

"[The defendant's] concern that without the express addition of a scienter

requirement he could be found in violation of probation for unknowing possession

appears unfounded. As the People point out, a trial court may not revoke probation

unless the defendant willfully violated the terms and conditions of probation. [Citations.]

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As [People v.] Patel explained, it is now settled that a probationer cannot be punished for

presence, possession, or association without proof of knowledge. (People v. Patel

[(2011)] 196 Cal.App.4th [956,] 960.) Thus, in the unlikely event that [the defendant]

finds himself in unknowing and inadvertent possession of a firearm or weapon, his lack

of knowledge would prevent a court from finding him in violation of probation. When a

probationer lacks knowledge that he [or she] is in possession of a gun or weapon, his [or

her] possession cannot be considered a willful violation of a probation condition.

[Citation.]

"In re Victor L. concluded that addition of a knowledge requirement to a probation

condition was necessary despite the aforementioned willfulness requirement. (In re

Victor L. [(2010)] 182 Cal.App.4th [902,] 912-913.) As pertinent here, Victor L.

considered a probation condition prohibiting a juvenile from remaining '"in any building,

vehicle or in the presence of any person where dangerous or deadly weapons or firearms

or ammunition exist."' (Id. at p. 912.) The juvenile argued that absent a knowledge

requirement, the condition was overbroad and vague: 'Because other people in public

places or private homes may be carrying concealed weapons without his knowledge, [the

minor] argues that, in the absence of a knowledge requirement, he "could easily violate

the condition without even realizing it."' (Ibid.) The People responded, much as they do

here, that no modification was necessary because a court may not revoke probation unless

the evidence supports a conclusion that the probationer's conduct is willful. (Id. at p.

913.) Victor L. rejected this argument, reasoning: 'While the requirement of proof of

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willfulness may save [the minor] from an unconstitutional finding of guilt based on an

unknowing probation violation, that is cold comfort to a probationer who suffers from an

unfounded arrest and detention based on the whim or vengeance of an arbitrary or mean-

spirited probation officer. [Citation.] [¶] Due process requires more. It requires that the

probationer be informed in advance whether his conduct comports with or violates a

condition of probation.' (Ibid.) Similarly, People v. Garcia [(1993)] 19 Cal.App.4th 97,

found an implied knowledge requirement insufficient in a probation condition that

infringed upon the defendant's freedom of association, reasoning: '[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.' (Id. at p. 102.)

"We do not find [In re] Victor L. or [People v.] Garcia applicable here. First, both

cases involved conditions that potentially infringed on constitutional rights. At least

insofar as it prohibits [the defendant] from possessing a firearm, or statutorily prohibited

weapons, the challenged condition does not impact [his] constitutional rights. (See, e.g.,

People v. Freitas, supra, 179 Cal.App.4th at p. 751 ['defendant, as a felon, has no

constitutional right to bear arms']; People v. Kim [(2011)] 193 Cal.App.4th [836,] 847

['Because no constitutional right is at stake, [the defendant's] concern about an implicit

knowledge requirement is inapplicable']; People v. Mitchell (2012) 209 Cal.App.4th

1364, 1369-1370 [statutory prohibition on carrying a concealed dirk or dagger does not

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violate the 2d Amend.]; § 29800, subd. (a)(1) [prohibiting felons from possessing

firearms]; see generally § 16590 [prohibited weapons].)

"But beyond that, the primary concern in [People v.] Garcia and in the pertinent

portion of [In re] Victor L. was that the probation conditions at issue failed to clearly

specify what conduct was prohibited, that is, what persons or areas the probationers were

required to avoid. The probation conditions were therefore not narrowly drawn, and

express modification was required to provide adequate notice. In contrast, as we have

explained, the probation condition at issue here provides [the defendant] with advance

notice about what conduct is prohibited, and therefore is narrowly drawn. The 'core due

process requirement of adequate notice' [citation] is satisfied. Unlike in [In re] Victor L.

and [People v.] Garcia, [the defendant's] concern is not that he is unable to discern what

conduct is prohibited. Instead, he worries that he might accidentally possess an item he

would readily recognize as prohibited by the probation condition. Under these

circumstances, the requirement that a violation of the weapons condition must be willful

and knowing adequately protects him from being punished for innocent possession. The

addition of an express knowledge requirement would add little or nothing to the

probation condition.

"In regard to [In re] Victor L.'s concern about arbitrary enforcement, [People v.]

Patel has explained: 'We . . . do not discern how addressing this specific issue on a

repetitive case-by-case basis is likely to dissuade a probation officer inclined to act in bad

faith from finding some other basis for harassing an innocent probationer.' (People v.

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Patel, supra, 196 Cal.App.4th at p. 960; see In re R.P., supra, 176 Cal.App.4th at p. 569

[possibility that peace officer might attempt to enforce weapons condition as a strict

liability offense did not render the condition unconstitutional]; cf. People v. Olguin

[(2008)] 45 Cal.4th [375,] 386, fn. 5 [defendant facing revocation of probation has the

right to be represented by counsel at a hearing, and may argue that a particular

application of a probation condition exceeds the bounds of reason under the

circumstances].)[3]

"We also do not believe [In re] Sheena K. [(2007)] 40 Cal.4th 875, compels

modification. There, a probation condition requiring that the defendant not associate with

'"anyone disapproved of by probation"' was unconstitutionally vague absent an express

knowledge requirement. (Id. at pp. 880, 891.) The provision did not notify the

probationer in advance regarding what persons she must avoid, and the probation officer

had the ability to preclude her association with anyone. (Id. at pp. 890–891.) Sheena K.

3 "In People v. Patel, supra, 196 Cal.App.4th 956, the Third Appellate District
concluded that '[i]n the interests of fiscal and judicial economy,' and in light of the body
of case law establishing that a probationer cannot be punished for presence, possession,
or association absent proof of scienter, that court would no longer entertain the issue on
appeal but would henceforth construe all such probation conditions to include a
knowledge requirement. (Id. at p. 960.) Patel reasoned: 'As with contracts generally, [a
scienter requirement] should be considered a part of the conditions of probation' just as if
it had been expressly referenced and incorporated. (Ibid.) [¶] To date, Patel's approach
of deeming scienter requirements to be present in all probation conditions and declining
to entertain the issue has not been adopted by other courts. See People v. Moses [(2011)]
199 Cal.App.4th [374,] 381 [declining to follow Patel on this point, stating the court's
preference to modify probation conditions, and encouraging the superior court to revise
its standard probation conditions form].) While we generally agree with [People v.]
Patel's analysis, we do not follow Patel 's approach on this point. Among other things,
certain probation conditions may require more case-specific modification if they are too
vague to provide a probationer with adequate notice of what conduct is prohibited."
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concluded modification to impose an explicit knowledge requirement was necessary to

render the condition constitutional. (Id. at p. 892.) Unlike in Sheena K., the weapons

condition here does notify [the defendant] in advance regarding what conduct is

prohibited, and is not unconstitutionally vague. [The defendant's] primary concern is that

he not be found in violation of probation absent knowing possession. As we have

discussed, this concern is illusory given that a trial court may not revoke Moore's

probation unless his violation of the weapons condition is knowing and willful.

[Citations.] Sheena K. did not have occasion to consider whether express modification of

a sufficiently precise condition was required, or the significance of the principle that a

probation violation must be willful. Cases are not authority for propositions not

considered. [Citation.]

"As [People v.] Kim observed, the 'function served by an express knowledge

requirement should not be extended beyond its logical limits.' (People v. Kim, supra, 193

Cal.App.4th at p. 847.) Accordingly, because the probation condition, as written, is

sufficiently precise to alert [the defendant] to what conduct is prohibited and guard

against arbitrary enforcement; because a knowledge requirement is implied in the

condition; and because Moore cannot be found to have violated probation absent

knowing possession (People v. Patel, supra, 196 Cal.App.4th at p. 960), we conclude

express modification of the probation condition is unnecessary. [Fn. omitted.]" (People

v. Moore, supra, 211 Cal.App.4th at pp. 1184-1189.)

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 We find the court's reasoning in People v. Moore persuasive and adopt it here. We

too conclude the challenged probation condition has a plain, commonsense meaning,

inasmuch as it prohibits Devin from using, possessing, transporting, selling or having in

his control a "firearm, replica, ammunition or other weapon, including a knife, any

explosive, or any item intended for use as a weapon, including hunting rifles or

shotguns." This condition in our view is "sufficiently precise" (see People v. Moore,

supra, 211 Cal.App.4th at p. 1186) for Devin to know what is required of him.

Equally important, we conclude Devin's concern to be unfounded that without the

addition of a scienter requirement he unwittingly could be found in violation of this

condition of probation. As noted in People v. Moore, a court may not revoke a

defendant's probation absent a finding that the defendant willfully violated the terms and

conditions of his or her probation. (People v. Moore, supra, 211 Cal.App.4th at p. 1186;

see also People v. Patel, supra, 196 Cal.App.4th at p. 960 [noting the well-settled rule

that a probationer cannot be punished for presence, possession, or association without

proof of knowledge].)

Applying this rule here, to the extent there was a finding that Devin lacked

knowledge that he was in possession of a "weapon" or "any item intended for use as a

weapon" as provided in the challenged probation condition, his possession of such could

not be considered a willful violation of a probation condition. We therefore conclude it is

unnecessary to add an express knowledge requirement to this condition of probation

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because to do so would be mere surplusage given its language and the law governing its

operation.

B. Calculation of Precommitment Custody Credits

"[A] minor is entitled to credit against his or her maximum term of confinement

for the time spent in custody before the disposition hearing. [Citations.]" (In re Emilio

C. (2004) 116 Cal.App.4th 1058, 1067; see also In re J.M. (2009) 170 Cal.App.4th 1253,

1256-1257 [minor entitled to credit for time the minor was detained in a secure facility

prior to commitment].) Here, the parties in their briefing agree that the record is

sufficient to calculate Devin's precommitment custody credits and thus remand is

unnecessary. The parties further agree that Devin is entitled to 71 days of

precommitment custody credit.

DISPOSITION

The juvenile court is ordered to prepare and file an amended commitment order

showing that Devin is entitled to 71 days of precommitment custody credit and to

forward a certified copy of that amended order to the Department of Corrections and

Rehabilitation, Division of Juvenile Justice Facilities. In all other respects, the order of

commitment is affirmed.

BENKE, Acting P. J.
WE CONCUR:

McINTYRE, J.

O'ROURKE, J.
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