In re N.F. CA1/3

Filed 11/25/14 In re N.F. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

In re N.F., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent,
v. A140956
N.F., (Solano County
Defendant and Appellant. Super. Ct. No. J041812)

This is an appeal in a juvenile criminal matter challenging the constitutionality of
a probation condition prohibiting the possession of “any weapons.” According to minor
N.F., this condition infringes on his due process rights because it is both overbroad and
vague. He thus asks this court to modify the condition to prohibit only his knowing
possession of deadly or dangerous weapons. For reasons set forth below, we grant
minor’s modification request in part and, in all other regards, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
An amended juvenile wardship petition was filed pursuant to Welfare and
Institutions Code section 602 on January 14, 2013 (hereinafter, petition).1 The petition
alleged that minor committed the following offenses: (1) attempted second degree

1
Unless otherwise stated, all statutory citations herein are to the Welfare and
Institutions Code.

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robbery (count one), (2) elder abuse (count two), and (3) possession of marijuana on
school grounds (count three).
The juvenile court subsequently found minor eligible for the Deferred Entry of
Judgment program (DEJ), after which minor admitted the allegations in the petition.2
Minor thus admitted that, on the afternoon of January 7, 2013, he approached from
behind and grabbed the purse of an elderly woman at a shopping center parking lot in
Vacaville. As minor pulled the purse from this woman, she fell, at which point he
dragged her briefly before releasing the purse. Minor then fled, but was eventually
caught by a loss prevention officer. On the same day, January 7, 2013, minor bought and
smoked marijuana at school.
On January 29, 2013, minor was placed on DEJ subject to various terms and
conditions. On October 16, 2013, minor’s probation officer filed a DEJ notice of
noncompliance. A supplemental report prepared by minor’s probation officer identified
several instances of minor’s DEJ noncompliance, including his failure to follow his
mother’s directives at home; sporadic school attendance; possession at school of a
marijuana smoking device, lighter and knife; and three-day school suspension for being
under the influence of marijuana.
On November 22, 2013, minor admitted noncompliance with the terms and
conditions of DEJ by failing to follow his mother’s directives at home, and, on January 7,
2014, he was declared a ward of the juvenile court and placed on probation subject to

2
“The DEJ provisions of section 790 et seq. were enacted as part of Proposition 21,
The Gang Violence and Juvenile Crime Prevention Act of 1998, in March 2000. The
sections provide that in lieu of jurisdictional and dispositional hearings, a minor may
admit the allegations contained in a section 602 petition and waive time for the
pronouncement of judgment. Entry of judgment is deferred. After the successful
completion of a term of probation, on the motion of the prosecution and with a positive
recommendation from the probation department, the court is required to dismiss the
charges. The arrest upon which judgment was deferred is deemed never to have
occurred, and any records of the juvenile court proceeding are sealed. (§§ 791, subd.
(a)(3), 793, subd. (c).)” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)

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certain terms and conditions.3 On January 23, 2014, appellant filed a timely notice of
appeal as to the juvenile court’s January 7, 2014 disposition order.
DISCUSSION
Minor raises one argument on appeal. He contends the condition of his probation
that he refrain from possessing “any weapons” is unconstitutionally vague and overbroad
because it does not require knowing possession of a weapon and, in addition, fails to
clearly define the term “weapons.”4 Accordingly, minor asks this court to modify the
allegedly unconstitutional probation condition to read as follows: “The minor shall not
knowingly possess any dangerous or deadly weapons, or any instrument capable of
causing great bodily injury or harm with the intent that they be used as such.” The
following legal principles apply to appellant’s challenge.
Where the juvenile court places a minor on probation following the minor’s
commission of a crime, it “may impose and require any and all reasonable conditions that
it may determine fitting and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced.” (§ 730, subd. (b).) “ ‘Because of
its rehabilitative function, the juvenile court has broad discretion when formulating
conditions of probation. “A condition of probation which is impermissible for an adult
criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and
supervision from the juvenile court.” [Citation.] “In planning the conditions of
appellant’s supervision, the juvenile court must consider not only the circumstances of
the crime but also the minor’s entire social history. [Citations.]” [Citation.] [Citations.]
Even conditions which infringe on constitutional rights may not be invalid if tailored
specifically to meet the needs of the juvenile [citation]. [Citations.] But every juvenile

3
After minor admitted failing to follow his mother’s home rules, the court
dismissed the other allegations of noncompliance, yet considered them in determining the
proper disposition for minor.
4
The challenged probation condition imposed on minor is: “He is not to possess
any weapons.”

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probation condition must be made to fit the circumstances and the minor.’ ” (In re Binh L.
(1992) 5 Cal.App.4th 194, 203.)
Despite the greater latitude afforded juvenile courts in ordering probation
conditions, however, it remains the law in all cases that “[a] probation 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,’ if it is to withstand a challenge on
the ground of vagueness.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In addition, a
probation condition that imposes limitations on a person’s constitutional right “must
closely tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad.” (In re Sheena K., supra, 40 Cal.4th at p. 890. See also
In re Spencer S. (2009) 176 Cal.App.4th 1315, 1331 [probation condition against minor
restricting him from associating with probationers was not overbroad where minor had
previously been in trouble for fighting an alleged gang member, and the restriction was
thus “sufficiently related to the goals of (1) promoting his rehabilitation and reformation,
and (2) protecting the public”].)
A challenge to the constitutionality of a probation condition may be raised for the
first time on appeal (as it was in this case). (In re Sheena K., supra, 40 Cal.4th at p. 885.)
The appellate court reviews a juvenile court’s imposition of a probation condition for
abuse of discretion. (In re Juan G. (2003) 112 Cal.App.4th 1, 7.)
Here, the People concede that the probation condition restricting minor from
possessing any and all weapons is overbroad and, thus, should be modified to limit this
restriction to “dangerous or deadly weapons.” However, the People deny that the
juvenile court’s failure to include a knowledge or scienter requirement in the probation
condition renders it unconstitutional. The People reason that, despite the lack of such
requirement, the fact remains that minor cannot be found in violation of this probation
condition unless he willingly disobeys it. As such, the probation condition, without an
express scienter requirement, is neither vague nor overbroad. For reasons explained
below, we agree.

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 First, with respect to the proposed modification of the weapons restriction to
clarify that minor is barred only from possessing deadly or dangerous weapons, rather
than from possessing “all weapons,” we are in accord. As the California Supreme Court
has noted, appellate courts are “well-suited to the role” of correcting the language or
phrasing of a probation condition to ensure it comports with the due process. (In re
Sheena K., supra, 40 Cal.4th at p. 885.) Here, we can easily modify the challenged
probation condition to restrict minor from possessing only those weapons that are
dangerous or deadly. Indeed, “the phrase ‘dangerous or deadly weapon’ is clearly
established in the law,” and thus will add clarity to the condition while still furthering the
intended juvenile goals of promoting minor’s rehabilitation and protecting the public.
(See In re R.P. (2009) 176 Cal.App.4th 562, 568 [pointing out that “the 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”]; In re Spencer S.,
supra, 176 Cal.App.4th at p. 1331.)
However, with respect to the proposed modification of the probation condition to
impose an express knowledge or scienter requirement, we agree with the People that it is
not necessary on this record. Indeed, variations of this same argument have been
considered and rejected by other appellate courts in this State. (E.g., People v. Moore
(2012) 211 Cal.App.4th 1179 (Moore); In re R.P., supra, 176 Cal.App.4th at p. 569.) For
example, in Moore, the court upheld a probation condition barring the minor from
possessing deadly or dangerous weapons in the absence of any further requirement that
the minor knowingly possess such weapons, reasoning as follows:
“The parties here do not dispute that if Moore 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.

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“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 . . . 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’ likewise has a clearly established meaning.
(In re R.P., supra, 176 Cal.App.4th at pp. 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 Moore of what is required of him, and for a court to determine whether
the condition has been violated. Because Moore 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.

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“Moore’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.] As 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 [Patel].)
Thus, in the unlikely event that Moore 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 is in
possession of a gun or weapon, his possession cannot be considered a willful violation of
a probation condition. (People v. Patel, supra, at p. 960.)” (Moore, supra, 211
Cal.App.4th at pp. 1185-1187. See also In re R.P., supra, 176 Cal.App.4th at p. 569
[“the mere possibility peace officers may attempt to enforce the probation condition as a
strict liability offense does not render the condition unconstitutional”].
We agree with the court’s holding and analysis in Moore, and conclude they apply
squarely to this case. Accordingly, we reject minor’s proposed modification to the
probation condition to add an express requirement that, to be found in violation of such
condition, he must knowingly possess a weapon. Simply put, the probation condition, as
already modified to clarify minor is restricted from carrying only dangerous or deadly
weapons rather than any type of weapon, and in light of the necessarily-implied scienter
requirement, is sufficiently precise to advise him of the prohibited conduct and to guard
against arbitrary enforcement. The constitutional requirements of due process require
nothing further.
DISPOSITION
The challenged probation condition is modified to read as follows: Minor “is not
to possess any dangerous or deadly weapons.” In all other regards, the juvenile court’s
January 7, 2014 order is affirmed.

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 _________________________
Jenkins, J.

We concur:

_________________________
McGuiness, P. J.

_________________________
Pollak, J.

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