Opinion
A150760
12-11-2017
In re Alejandro R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Alejandro R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV02704001)
At a November 2016 dispositional hearing on a petition filed by the People under Welfare and Institutions Code section 602, the Alameda County juvenile court found minor Alejandro R. to be a ward of the court and placed him on probation subject to certain conditions, including that he not knowingly possess any weapons. Alejandro argues this weapons condition is unconstitutionally vague on its face and requests that we modify it. We conclude the condition is not unconstitutionally vague and, therefore, affirm.
BACKGROUND
At the jurisdictional hearing on the People's petition, evidence was presented that Alejandro, then 15 years old, committed offenses on two separate occasions. First, in spring 2016, he stole a classmate's cell phone at middle school and refused to return it unless he was paid. Second, that fall at high school, Alejandro was detained and brought to the vice principal's office after a report that he smelled of marijuana and was acting erratically. Alejandro smelled of marijuana, had bloodshot eyes, and refused to permit the vice principal to inspect his backpack. A deputy was called. When the deputy arrived, Alejandro shoved the vice principal and tried to exit the office. His backpack was searched and two unspent shotgun shells were found in the front pocket. At the jurisdictional hearing, the court found true beyond a reasonable doubt the People's allegations that Alejandro committed petty theft (Pen. Code, § 484, subd. (a)) and possessed ammunition on school grounds (id., § 30310, subd. (a)).
The probation department prepared a dispositional report for the court. The department reported further about the petty theft and ammunition possession incidents. It also reported that Alejandro had a good relationship with his mother, who reported that he was a "homebody," but that there were also indications that he was associating with gangs and had a record of "habitual truancy and behavior issues at school." The department recommended that Alejandro be adjudged a ward of the court and be put on probation under the department's supervision. Among other things, the department recommended "standard conditions of probation," including that Alejandro "[n]ot possess, own, or handle any firearm, knife, weapon, fireworks, explosives, or chemicals that can produce explosives."
At the February 23, 2017 dispositional hearing, the court heard argument from counsel, adjudged Alejandro to be ward of the court, and placed him on probation under the supervision of the probation department and subject to "standard conditions of probation." The court said that these conditions included that Alejandro "not knowingly possess any weapon, including firearm, knife, cartridges, bullets, explosives, chemicals that can produce explosives, any weapon."
Also on February 23, 2017, the court filed and served on Alejandro and others a minute order signed by the court. This minute order also listed certain conditions of probation, including that Alejandro "not knowingly possess, own or handle any dangerous or deadly weapons, including firearms, knives, explosives or chemicals that can produce explosives."
Alejandro filed a timely notice of appeal from the court's disposition order.
DISCUSSION
Alejandro contends that the juvenile court's weapons condition as orally stated at the dispositional hearing, which prohibited him from knowingly possessing "any weapon," controls over the court's subsequent written probation condition regarding weapons in its February 23, 2017 minute order, which prohibited him from knowingly possessing "any dangerous or deadly weapons." Further, he argues, the court's oral reference to "any weapon" is unconstitutionally vague and must be modified. He requests that we either modify the condition to prohibit his knowing possession of "dangerous or deadly" weapons or, alternatively, to specify that he is precluded from possessing items that may potentially qualify as de facto weapons where the items are intended to serve as a weapon.
The People respond that no modification is necessary because the court's written probation condition regarding weapons in its February 23, 2017 minute order controls, and already refers to "dangerous or deadly" weapons.
We need not determine whether the court's oral or written weapons condition controls here because we conclude, based on a case by our Division Four that Alejandro relies on to support his vagueness argument, In re Kevin F. (2015) 239 Cal.App.4th 351 (Kevin F.), that the phrase "dangerous or deadly" inheres in the commonly understood meaning of the term "weapon." Therefore, it is implicit in the probation condition as phrased by the court and no modification of the court's oral weapons condition is necessary.
Kevin F. was disapproved on other grounds in People v. Hall (2017) 2 Cal.5th 494, 503, fn. 2, as we discuss further in footnote 2, post.
"Under Welfare and Institutions Code section 720, subdivision (b), a juvenile court may impose '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.' In spite of the juvenile court's broad discretion, '[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. [Citation.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.' (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) A defendant may contend for the first time on appeal that a probation condition is unconstitutionally vague . . . on its face when the challenge presents a pure question of law that the appellate court can resolve without reference to the sentencing record." (Kevin F., supra, 239 Cal.App.4th at p. 357.)
"The prohibition on vagueness is rooted in ' "ordinary notions of fair play and the settled rules of law," and a statute that flouts it "violates the first essential of due process." ' [Citation.] This concern for fair warning is aimed at ensuring that a ' "person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that he may act accordingly." ' [Citations.] The fear is that vague laws will ' "trap the innocent." ' [Citation.] More broadly, ' " 'a law that is "void for vagueness" . . . "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." ' " ' " (Kevin F., supra, 239 Cal.App.4th at pp. 357-358.) "To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall, supra, 2 Cal.5th at p. 500.)
In Kevin F., our Division Four reviewed a juvenile court's probation condition prohibiting the possession of "any weapons." At the disposition hearing in that case, the juvenile court stated, " 'You're not to possess any weapons. You're not to possess any toys that look like weapons.' " (Kevin F., supra, 239 Cal.App.4th at p. 357.) The juvenile court added in its signed dispositional findings that Kevin F. could " '[n]ot possess weapons of any kind, which means no guns, knives, clubs, brass knuckles, attack dogs, ammunition, or something that looks like a weapon. You are not to possess anything that you could use as a weapon or someone else might consider to be a weapon.' " (Ibid.)
Among other things, Kevin F. made an argument remarkably similar to Alejandro's here when he contended that the court's oral reference to " 'any weapons' " did not "provide an explicit standard for determining which objects are prohibited" and, therefore, was unconstitutionally vague. (Kevin F., supra, 239 Cal.App.4th at p. 358.) He asked the appellate court "to modify the condition to prohibit possession of 'dangerous or deadly weapons.' " (Ibid.) We quote at length from the Kevin F. court's rejection of this very similar argument.
The Kevin F. court concluded that "the omission of 'dangerous or deadly' does not render the juvenile court's weapon prohibition unconstitutionally vague. The classic statement of what constitutes a dangerous or deadly weapon in California criminal law dates back to People v. Raleigh (1932) 128 Cal.App. 105, 107, where the defendant appealed his conviction for attempting to rob a haberdashery with an unloaded gun. 'There are,' the Court of Appeal explained in Raleigh, '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" to 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.' [Citation.] In some circumstances, however, 'instrumentalities falling in the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects' are 'capable of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that [the] possessor [of such an object] intended on a particular occasion to use it as a weapon,' thus establishing its character as a weapon as a matter of fact. [Citation.] Applying this dichotomy, the Raleigh court held that, because the gun used by the defendant in that case was a dangerous or deadly weapon per se, it was not necessary for the trial court to instruct on and submit the issue to the jury for factual determination. [Citation.]
"In this case, the juvenile court's approach to the weapons prohibition imposed on Minor begins by listing a number of specific items and instruments that will categorically fall within the prohibition ('guns, knives, clubs, brass knuckles, attack dogs, ammunition'), but then leaves the prohibition open-ended in a manner that could capture other things ('something that looks like a weapon' or 'anything that you could use as a weapon or someone else might consider to be a weapon') depending on the circumstances. This generally follows the established Raleigh two-step test for dangerous or deadly weapons. Under that test, the notion that an instrument or object must be either 'dangerous or deadly' in order to qualify as a 'weapon' is so fundamental that it need not be stated explicitly. (See People v. Pruett (1997) 57 Cal.App.4th 77, 86 ['Because the use of [a pocketknife] with the intent to resist arrest or detention necessarily encompasses its use or intended use as a weapon, no definition of "weapon" or "deadly weapon" is required'].) Because the qualifier 'dangerous or deadly' inheres in the commonly understood meaning of the term 'weapon' (see Black's Law Dict. (10th ed. 2014) p. 1827 ['[a]n instrument used or designed to be used to injure or kill someone']), we agree with the Attorney General that it is implicit in the probation condition as phrased by the court. Even without the qualifier Minor seeks, a reasonable person can understand the plain meaning of the term 'weapon.' " (Kevin F., supra, 239 Cal.App.4th at pp. 359-360 ; see also In re R.P. (2009) 176 Cal.App.4th 562, 568 [rejecting the argument that the phrase " 'dangerous or deadly weapon' " was unconstitutionally vague, concluding that the phrase "is clearly established in the law"].)
The Kevin F. court agreed with other vagueness arguments by Kevin F. and modified the weapons condition to include knowledge and mens rea requirements. Specifically, it modified the condition to state that Kevin F. was not to " 'knowingly possess weapons of any kind,' " or possess items that he intended to use as a weapon or knew others might consider to be a weapon. (Kevin F., supra, 239 Cal.App.4th at p. 366, italics added.) However, to the extent Kevin F. "concluded that an express knowledge requirement was necessary to prevent unwitting violations of possessory probation conditions," it was disapproved of in People v. Hall, supra, 2 Cal.5th at p. 503, fn. 2.) In any event, there are no knowledge or mens rea issues raised in the present case. --------
Alejandro discusses Kevin F. without addressing the import of this part of its holding. He contends the "any weapon" phrase in the condition before us is similar to words and phrases that other courts have found to be impermissibly vague. These cases are easily distinguished. In In re Sheena K., supra, 40 Cal.4th 875, the juvenile court ordered the juvenile not to " 'associate with anyone disapproved of by probation.' " (Id. at p. 880.) Our Supreme Court determined this was both vague and overbroad because "the probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892.) This is distinctly different from the phrase "any weapon," which does not require the probation department to make any further determinations.
In People v. Leon, the appellate court determined that a prohibition against wearing paraphernalia that was evidence of affiliation or membership in a gang was unconstitutionally vague in the absence of the requirement that the juvenile know the paraphernalia was associated with gangs. (People v. Leon (181 Cal.App.4th 943, 950-951.) Unlike the "any weapon" phrase here, there is no common understanding about the nature of gang paraphernalia.
In People v. Gabriel, the appellate court determined a gang condition was unconstitutionally vague because it prohibited defendant from associating with individuals he suspected to be gang members, drug users, or on any form of probation or parole supervision. The court held that the word "suspects" "renders the condition insufficiently precise for a court to determine whether a violation has occurred." (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) There is no such vague qualifier in the weapons condition here.
In short, we agree with the reasoning and holding of Kevin F., and adopt it here. Accordingly, we have no reason to modify the juvenile court's prohibition against Alejandro's knowing possession of "any weapon" to include the phrase "dangerous or deadly" or to specify that he is precluded from possessing items that may potentially qualify as de facto weapons where the items are intended to serve as a weapon.
DISPOSITION
The court's dispositional order is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.