Opinion
A153701
10-26-2018
In re CHARLES H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CHARLES H., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. JW176274)
Appellant, Charles H., appeals from a final judgment in proceedings under Welfare and Institutions Code section 602 in which the San Francisco Superior Court found true an allegation of petty theft, a misdemeanor (Pen. Code, § 490.2, subd. (a)), declared appellant a ward of the court, and placed him on home probation.
The sole issue on appeal is the propriety of a condition of probation prohibiting appellant from possessing any weapons, including "anything that would reasonably be perceived by another person to be a weapon if they saw it in [his] hands" and no knives. Appellant claims the category of objects he is prohibited from possessing is unconstitutionally vague and overbroad. We shall reject the claim.
FACTS AND PROCEEDINGS BELOW
On October 19, 2017, appellant seized the cell phone of a woman sitting near the exit of a Muni train without her permission and fled the train with another young person. The woman chased appellant for about two blocks, when he threw the phone down and the owner retrieved it in undamaged condition.
The next day the San Francisco County District Attorney filed a juvenile wardship petition alleging appellant committed grand theft. (Pen. Code, § 487, subd. (a).) On November 9, 2017, the court granted appellant's motion to reduce the allegation to petty theft, a misdemeanor (Pen. Code, § 490.2, subd. (a)) and dismiss the allegation of grand theft. At a contested jurisdictional hearing held on January 11 and 12, 2018, the alleged misdemeanor was found true. Appellant was subsequently placed on home probation on various terms and conditions.
Before the court made a dispositional finding, appellant objected to two conditions of probation proposed by the Juvenile Probation Department: (1) That he "[n]ot possess any dangerous or deadly weapons of any kind, or anything that looks like a weapon, can be used as a weapon or could reasonably be considered by someone else to be a weapon"; and (2) that appellant "shall not remain in a building or vehicle where he has knowledge of the existence of dangerous weapons." Appellant maintained that neither condition was reasonably related to his offense, which did not involve the use of any weapon, and both were constitutionally overbroad and vague.
Both restrictions included the statement that the word "weapons" "includes, guns, knives, clubs, brass knuckles, attack dogs, and ammunition." --------
After considering appellant's objections, and stating it would impose a weapons condition as "narrowly tailored as possible," the court imposed the following condition. Appellant's objections are to the italicized words:
"You must not possess any dangerous or deadly weapon of any kind. That means you must not possess a firearm. You must not possess anything that you intend to use as a weapon or anything that would reasonably be perceived by another person to be a weapon if they saw it in your hands, so that means no real guns, no fake guns, no toy guns, no pellet guns, no BB guns, no airsoft guns, no knives, no clubs, no brass knuckles, no tasers, no mace, no pepper spray, no bullets or any kind of ammunition."
DISCUSSION
We review a constitutional challenge to a condition of probation de novo. (In re Malik J. (2015) 240 Cal.App.4th 896, 901.)
A court may impose on a juvenile probationer "any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and reformation and rehabilitation of the ward enhanced." (Welf. & Inst. Code, § 730, subd. (b).) A juvenile court enjoys broader discretion than a criminal court to fashion conditions because juveniles are deemed to be more in need of guidance and supervision than adults, and a minor's constitutional rights are more circumscribed. For these and other reasons, "a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)
The discretion of the juvenile court is not constitutionally unbounded (In re Luis F. (2009) 177 Cal.App.4th 176, 189), however, and the vagueness doctrine provides a significant limitation. As explained in Sheena K., supra, 40 Cal.4th 875, "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' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. [Citations.]' [Citation.] The vagueness doctrine bars enforcement of' ' "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citations.]' A vague law 'not only fails to provide adequate notice to those who must observes its strictures, but also "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." [Citation.]' [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' [Citation.]" (Sheena K., at p. 890.)
"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.'. . . [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 constitutionally overbroad. [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.)
I.
Maintaining that it is unconstitutional to expect him "to know and avoid all items that any person might reasonably perceive to be a weapon," appellant relies primarily on Sheena K. As he states in his opening brief, the Sheena K. court found the condition that the minor not associate with "anyone disapproved of by probation" to be unconstitutionally vague because it "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." (Sheena K., supra, 40 Cal.4th at pp. 891-892.) The vagueness problem in Sheena K. was the failure of the juvenile court to "specify which persons the probation officer had disapproved of." (People v. Hall (2017) 2 Cal.5th 494, 503.) Relying on the Supreme Court's recent explanation of Sheena K. in Hall, appellant points out that "the condition in Sheena K. was not modified to prohibit the minor from 'knowingly associating with the specified group of persons'[;] rather it modified the category of people prohibited."
Appellant's point is that "[u]nlike the condition in Sheena K., which pertained to the decision of the probation officer as to who the minor could not associate with, the condition at issue in this case includes the perceptions of all people and therefore is too broad to be curable by modification. Thus the unconstitutional condition must be stricken."
We are not persuaded.
To begin with, the challenged condition does not require appellant to know "the perceptions of all people" as to whether an object "might reasonably be perceived by another person to be a weapon if they saw it in your hands." The use of the word "reasonably" means appellant need only be able to know whether a reasonable person might think the object in his hands could be used as a weapon. Furthermore, as in Sheena K., the court "offered additional oral . . . comments clarifying" the meaning of the assertedly vague prohibition. (Sheena K., supra, 40.Cal.4th at p. 891) The court made clear at the hearing that "weapons" means: "no real guns, no fake guns, no toy guns, no pellet guns, no BB guns, no airsoft guns, no knives, no clubs, no brass knuckles, no tasers, no mace, no pepper spray, no bullets or any kind of ammunition." These examples demonstrated that the condition reasonably encompasses only dangerous or deadly weapons or objects designed to look like dangerous or deadly or weapons. As has been judicially noticed, "the qualifier 'dangerous or deadly' inheres in the commonly understood meaning of the term 'weapon.' " (In re Kevin F. (2015) 239 Cal.App.4th 351, 360.)
In re I.S. (2016) 6 Cal.App.5th 517 does not help appellant. In that case the minor challenged a condition of probation prohibiting him from possessing "anything that looks like a weapon" and "anything that can be considered by someone else to be a [dangerous or deadly] weapon." The court agreed the condition was vague because "the minor cannot fairly be expected to avoid all the items that any other person might consider to be dangerous or deadly weapons." (Id. at p. 523.) However, unlike the condition in this case, the condition challenged in In re I.S. did not use the word "reasonably" to qualify the word "consider."
II.
With respect to the condition that he not possess "knives," appellant maintains he is "left to guess at precisely what he is prohibited from possessing. Does this mean all kinds of knives, including butter knives and steak knives? Does this include possession of a knife to cut food at dinner, or used to prepare breakfast? Does it include the use of a knife to clean fish after fishing, or to whittle wood? Appellant is left to question what this condition includes, and the circumstances in which a knife is permitted." (In re I.S., supra, 6 Cal.App.5th at p. 523.) Moreover, appellant claims, this provision is unconstitutionally overbroad as it apparently prohibits the use or possession of all knives in all circumstances and would unnecessarily interfere with his ability to engage in quotidian tasks, such as cooking and eating, and must therefore be much more narrowly tailored.
"The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the [minor's] constitutional right—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Appellant's claim that prohibiting him from possessing "all knives in all circumstances" would unjustifiably interfere with his ability to engage in daily tasks that require the use of a knife, such as cooking and eating, ignores the fact that the word "knives" was employed by the court as but one example of the many objects that fall under the rubric of "weapons;" which includes objects that can be used for dangerous or deadly purposes and those designed to look like they can be used for such purposes. (In re Kevin F., supra, 239 Cal.App.4th at p. 360.) Certain knives, such as a butter knife, are not such objects. Others, such as the knife that attaches to the end of a rifle and serves as a bayonet, or some switchblades, may in and of themselves be considered weapons. But there are many other types of knives—such as those used to cut a steak, whittle wood, or clean a fish—that are not designed to be used as weapons, and do not appear to be such when employed for the purposes for which they were designed, although they can in certain contexts be perceived by others or used as dangerous weapons. Like a toy gun, a steak knife can be perceived as a dangerous and deadly weapon if it is brandished or exposed in a threatening manner. It seems to us obvious that the reference of the court to "knives" as an exemplar of the deadly weapons appellant is prohibited from possessing and using does not include knives designed for and used in a lawful and nonthreatening purpose.
A prohibition will be upheld if it has a "core" of proscribed conduct (Bailey v. National City (1991) 226 Cal.App.3d 1319, 1329) or if its terms can be made reasonably certain by reference to other definable sources (Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 387). The condition at issue in this appeal is sustainable on both grounds.
DISPOSITION
The challenged order is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.