Filed 6/16/15 In re Andrew M. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re ANDREW M., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
G050102
Plaintiff and Respondent,
(Super. Ct. No. DL043890)
v.
OPINION
ANDREW M.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Maria D. Hernandez, Judge. Affirmed as modified.
Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
* * *
INTRODUCTION
After the juvenile court found that Andrew M. had possessed
methamphetamine for sale in violation of Health and Safety Code section 11378, the
court, inter alia, reimposed probation conditions that it had imposed after sustaining prior
juvenile delinquency petitions filed against Andrew. Those conditions included that
Andrew not use or possess “any dangerous, illegal or deadly weapons,” and not “initiate
contact” with, or “cause to be contacted by” any victims or witnesses “of any offense”
alleged against him. Andrew argues both conditions are unconstitutionally vague
because they lack a scienter requirement.
We modify both conditions to each contain a scienter requirement. We
affirm the order as so modified.
BACKGROUND
In March 2014, a notice of hearing on juvenile probation violations was
filed in the juvenile court, which alleged Andrew had been previously declared a ward of
the Orange County Juvenile Court under Welfare and Institutions Code section 602, and
had been ordered to comply with certain probation conditions. The notice further stated
Andrew failed to comply with the conditions because he was ordered (1) not to have any
weapons or knowingly be in the presence of any illegally armed person, and he was
found in possession of a knife; (2) to submit to drug testing as directed by the probation
officer, and he failed to do so on two occasions; (3) to report to the probation officer as
directed, and he twice failed to do so; and (4) to notify the probation officer of his current
address and telephone number, and to report any changes within 48 hours, but he changed
residences without notifying the probation officer within 48 hours.
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Later in March 2014, a juvenile delinquency petition “[s]ubsequent” (the
March 2014 petition) was filed in the Orange County Juvenile Court, alleging Andrew
came within Welfare and Institutions Code section 602 because he (1) unlawfully
possessed methamphetamine for sale in violation of Health and Safety Code
section 11378, and (2) unlawfully resisted and obstructed an officer in violation of Penal
Code section 148, subdivision (a)(1).
At trial, Officer Eric Bridges of the Fullerton Police Department testified
that on March 14, 2014, he was in full uniform as he conducted a foot patrol of a park; he
had previously investigated drug activity in that park on several occasions. After Bridges
saw a group of individuals walking toward him, he stepped forward and saw one of the
individuals, who was later identified as Andrew, turn around and start to walk away from
him. Bridges saw Andrew toss a yellow prescription pill bottle to the ground. Bridges
retrieved the bottle which contained methamphetamine packaged in baggies; the baggies
ranged in weight from 0.49 grams to 1.84 grams.
Following testimony, the juvenile court granted the prosecution’s motion to
dismiss the second count of the March 2014 petition, alleging Andrew unlawfully
resisted and obstructed an officer. The court found the allegation of the March 2014
petition as to the possession of methamphetamine for sale offense true beyond a
reasonable doubt. After Andrew admitted “all paragraphs” (boldface omitted) of the
March 2014 notice of hearing of probation violations, the court also found Andrew in
violation of his probation.
The juvenile court ordered that Andrew would continue as a ward of the
court under section 602 of the Welfare and Institutions Code. The court ordered Andrew
committed to “juvenile hall or appropriate facility for 132 days,” and reimposed the
1
Our record shows Andrew has been the subject of several prior juvenile delinquency
petitions. Because they are not relevant to the issues presented in this appeal, we do not
further address them.
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probation conditions by ordering: “All prior orders remain in full force and effect
including modified gang terms.” Those conditions included, as relevant to this appeal,
that Andrew not “use or possess any dangerous, illegal or deadly weapons,” and not
“initiate contact” with, or cause to be contacted by any means” by, any victims or
witnesses “of any offense alleged against [him].”
Andrew appealed.
DISCUSSION
“The Legislature gives the juvenile court broad discretion to impose
probation conditions. [Citations.] [¶] However, a juvenile court’s discretion to impose
conditions of probation is not boundless, and a probation condition must not violate a
probationer’s inalienable rights.” (In re R.P. (2009) 176 Cal.App.4th 562, 565-566.)
Andrew argues that two of the probation conditions imposed on him are
constitutionally overbroad because they each lack a scienter requirement. Although he
did not object to the probation conditions in the juvenile court, his argument is cognizable
on appeal because “when a facial challenge is made to the constitutionality of a probation
condition, there is no need to preserve the claim by an objection in the juvenile court.
(See In re Sheena K. (2007) 40 Cal.4th 875, 889 . . . [vagueness challenge to probation
condition preserved on appeal despite probationer’s failure to object in trial court].)
Under such circumstances, fairness and efficiency considerations weigh in favor of an
appellate court’s de novo review of a facial constitutional challenge. (See id. at
pp. 885-888.)” (In re R.P., supra, 176 Cal.App.4th at p. 566.)
A probation condition that limits constitutional rights will be deemed
“constitutionally overbroad when it substantially limits a person’s rights and those
limitations are not closely tailored to the purpose of the condition.” (People v. Harrisson
(2005) 134 Cal.App.4th 637, 641.) To withstand a vagueness challenge, a probation
condition “‘must be sufficiently precise for the probationer to know what is required of
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him, and for the court to determine whether the condition has been violated.’” (In re
Sheena K. (2007) 40 Cal.4th 875, 890.) Thus, a probation condition that forbids certain
conduct, but lacks a knowledge requirement, is invalid because it is impermissibly vague
and overbroad. (See, e.g., In re Justin S. (2001) 93 Cal.App.4th 811, 816.) In such
circumstances, the appropriate remedy is to modify the condition to add a knowledge
requirement. (Ibid.)
Here, neither of the challenged probation conditions contains a scienter
requirement. The condition prohibiting Andrew from possessing a deadly, illegal, or
dangerous weapon fails to specify that he must knowingly possess such a weapon. (See
In re Sheena K., supra, 40 Cal.4th at p. 892.) The condition prohibiting Andrew from
initiating contact with any victim or witness of any offense alleged against him, or
causing any such person to contact him, fails to put Andrew on notice of whom he is
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prohibited from having contact with.
Therefore, both conditions must be modified to include a scienter
requirement, as set forth in the disposition post. In summary, the former condition must
be modified to state that Andrew not knowingly use or possess any dangerous, illegal, or
2
In re R.P., supra, 176 Cal.App.4th 562, is inapposite. In that case, the defendant
argued the probation condition prohibiting him from possessing any “‘dangerous or
deadly weapon’” was unconstitutionally vague because “‘any object can be used as a
deadly weapon.’” (Id. at p. 565.) The appellate court in that case did not address the
scienter argument raised in this appeal. To the extent Andrew’s appellate briefs can be
construed to also raise the same argument raised in In re R.P.—that the definition of
dangerous or deadly weapon is, in and of itself, vague—we conclude it has no merit. In
In re R.P., after citing numerous legal authorities, the appellate court concluded, 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. As a result of these well-defined terms, the phrase ‘dangerous or deadly weapon’
is clearly established in the law. Accordingly, the ‘no-dangerous-or-deadly-weapon’
probation condition is sufficiently precise for [the defendant] to know what is required of
him.” (Id. at p. 568.) The term “illegal” is self-evident. Andrew’s claim therefore fails.
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deadly weapons. The latter condition must be modified to prohibit Andrew from
initiating contact with any person he knows to be a victim or witness of any offense
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alleged against him or from causing any such person to contact him.
DISPOSITION
The portion of the probation condition declaring “Minor not to use or
possess any dangerous, illegal or deadly weapons,” is modified to state “Minor not to
knowingly use or possess any dangerous, illegal or deadly weapons.” The portion of the
probation condition declaring “Minor not to initiate contact or cause to be contacted by
any means with the victims or witnesses of any offense alleged against you,” is modified
to state “Minor not to knowingly initiate contact or cause to be contacted by any means
with the victims or witnesses of any offense alleged against you.” As modified, the order
is affirmed.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
3
We note, in Andrew’s reply brief, his counsel cites an unpublished opinion. Citing to
unpublished opinions violates the rules of court and is improper. (Cal. Rules of Court,
rule 8.1115(a) [“an opinion of a California Court of Appeal . . . that is not certified for
publication or ordered published must not be cited or relied on by a . . . party in any other
action”].)
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