IN RE: William T. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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William T., a minor, contends a term of probation imposed by the juvenile court is unconstitutionally vague.   William argues he could be unwittingly in violation of the term prohibiting him from remaining in the presence of any unlawfully armed person if he was unaware a person with whom he was associating was armed.   The People concede a knowledge component is required to avoid constitutional infirmity.   We modify the order of wardship accordingly and otherwise affirm.

BACKGROUND

At the age of 15, William ran from police officers responding to a call concerning a Hispanic male carrying a “bat.”   During the chase, William dropped the bat as well as a knife and was ultimately apprehended by the officers.   No one was injured.   On February 26, 2008, a two-count petition was filed alleging William fell within the provisions of Welfare and Institutions Code section 602 for violation of Penal Code section 12020, subdivision (a)(1), possession of a deadly weapon commonly referred to as a “billy club” (count one), and Penal Code section 12020, subdivision (a)(4), carrying a “dirk or dagger” (count two).

While the February 26 petition was still pending, a campus aide observed William in a restroom on school grounds, holding a baggie containing a dark substance, and another minor standing nearby holding money.   William denied any intent to sell, claiming that he was merely showing a friend the hashish he had purchased from an adult.   He was arrested by a school police officer.   Thereafter, on July 1, 2008, a one-count petition was filed against William alleging violation of Health and Safety Code section 11357, subdivision (a), possession of concentrated cannabis.

On June 1, 2009, the juvenile court held a competency hearing and determined William understood the charges against him and was competent to assist in his own defense.   William admitted to count one of the February 26, 2008 petition, which was reduced to a misdemeanor, and count two was dismissed pursuant to settlement.   William further admitted the allegations of the July 1, 2008 petition.   At the disposition hearing held the same day, the petitions were aggregated with a prior Welfare and Institutions Code section 602 petition filed in August 2005 (possession of a weapon on school grounds) for which William received the benefit of deferred entry of judgment pursuant to Welfare and Institutions Code section 790.

At the June 1, 2009 hearing, William was adjudged a ward of the court and ordered suitably placed.   The juvenile court ordered maximum confinement of four years with 228 days predisposition credit.   The court also imposed numerous terms and conditions of probation, including express incorporation of the probationary terms already in effect as of the March 27, 2006 disposition on the earlier petition.   This appeal followed.

DISCUSSION

William contends that Condition No. 16 of his probationary terms is unconstitutionally vague for lack of a requirement that he knowingly remain in the presence of a person unlawfully armed.   Our review of this pure question of law is de novo.  (People v. Cromer (2001) 24 Cal.4th 889, 893-894.)   Moreover, because the issue is one of law that does not require factual reference to the sentencing record below, William has not forfeited the constitutional challenge on appeal by failing to raise the objection in the juvenile court.  (In re Sheena K. (2007) 40 Cal.4th 875, 889.) ¹

Condition No. 16 requires William to “not have any dangerous or deadly weapon in [his] possession, nor remain in the presence of any unlawfully armed person.”   This term of probation, originally imposed on March 27, 2006, was expressly incorporated by reference into the disposition entered June 1, 2009.  “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.]”  (In re Sheena K., supra, 40 Cal.4th at p. 890.)

William contends Condition No. 16 lacks the requisite constitutional specificity, as he could be in violation of the condition even if he did not know he was with someone carrying a concealed weapon, or if even if he knew they were armed but did not know they were carrying the weapon unlawfully.   The People concede Condition No. 16 should be modified to include a knowledge requirement.   We agree.   The absence of a knowledge requirement on the part of William fails to provide him with fair notice of what is required to comply with the terms of his probation and thus infringes on his constitutional right to due process.  (In re Sheena K., supra, 40 Cal.4th at p. 890;  see also In re Justin S. (2001) 93 Cal.App.4th 811, 816 [finding probationary term prohibiting association with gang members without narrowing restriction to “known” gang members to be “ ‘ “classic case” ‘ “ of unconstitutional vagueness (italics omitted) ].)   It also deprives the court of the ability to accurately determine whether the condition has been violated.

William contends the term should be stricken or modified.   We do not believe striking Condition No. 16 is warranted.   The juvenile court is vested with broad discretion to set reasonable terms of probation for any ward under its supervision such that “justice may be done and the reformation and rehabilitation of the ward enhanced.”  (Wel & Inst Code, § 730, subd. (b);  In re Sheena K., supra, 40 Cal.4th at p. 889.)   In our view, the better course is to modify the condition so that it does not violate William's constitutional rights but otherwise preserves the purpose of the condition which the juvenile court determined was appropriate in this case.  (In re Justin S., supra, 93 Cal.App.4th at p. 816;  In re Victor L. (2010) 182 Cal.App.4th 902, 912;  People v. Freitas (2009) 179 Cal.App.4th 747, 752.)

DISPOSITION

Condition No. 16 is modified as follows:  “Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of anyone known to William to be unlawfully armed.”   In all other respects, the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The People concede this point..  FN1. The People concede this point.

BIGELOW, P. J. FLIER, J.