THE PEOPLE v. JEREMY (2011)

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The juvenile court sustained a Welfare and Institutions Code section 602 ¹ petition alleging that Jeremy J. (appellant) had committed the offense of attempted petty theft (Pen.Code, §§ 664/484, subd. (a)).  This was appellant's third offense and the juvenile court set the maximum term of confinement at three years six months.   Appellant contends the following on appeal:  (1) the juvenile court incorrectly calculated his maximum term of confinement;  and (2) one condition of appellant's probation—specifically, that he not possess narcotics—is unconstitutionally vague and/or overbroad.   We modify the maximum term of confinement and the condition of probation at issue, and in all other respects affirm the juvenile court's order declaring petitioner a ward of the court pursuant to section 602.

BACKGROUND

In August 2008, appellant admitted to committing the offense of making a criminal threat (Pen.Code, § 422).   The juvenile court granted a deferred entry of judgment, placed appellant home on probation, and set the maximum term of confinement at three years.   The juvenile court also imposed a number of probation conditions, including the condition (referred to as “condition number 21” in the minute order) that appellant “not use or possess narcotics, controlled substances, poisons, or related paraphernalia;  [and] stay away from places where persons whom you know to use illegal drugs or substances congregate.”

In May 2009, the juvenile court found true the allegation that appellant had committed the offense of tampering with a fire alarm (Pen.Code, § 148.4, subd. (a)).  The juvenile court revoked the first deferred entry of judgment, granted a second deferred entry of judgment, placed appellant home on probation, and set the maximum term of confinement at three years four months.   The juvenile court ordered that the probation conditions previously imposed remain in full force and effect.

On December 2, 2010, the juvenile court sustained a section 602 petition alleging that appellant had committed the offense of attempted petty theft (Pen.Code, §§ 664/484, subd. (a)).  The juvenile court declared appellant a ward of the court, placed appellant in a short-term camp community program, and set the maximum term of confinement at three years six months.   The juvenile court ordered that the probation conditions previously imposed in August 2008 and May 2009 remain in full force and effect.

Appellant timely appealed from the juvenile court's order declaring him a ward of the court.

DISCUSSION

I. Maximum Term of Confinement

Appellant contends the juvenile court incorrectly set his maximum term of confinement at three years six months.   According to appellant, his maximum term of confinement is three years five months.   The Attorney General agrees, as do we.

Where, as here, the juvenile court elects to aggregate the period of physical confinement on multiple petitions, including previously sustained petitions, the maximum term of confinement is calculated pursuant to Penal Code section 1170.1. (§ 726, subd. (c).)  Under Penal Code section 1170.1, the aggregate term of imprisonment is the sum of the term for the principal offense and one-third of the middle term for each consecutive subordinate offense.   (Pen.Code, § 1170.1, subd. (a).)  In this case, appellant's criminal threats felony is the principal offense because it carries the greatest term of appellant's three counts, i.e., three years.  (Pen.Code, §§ 18, 422.)

Consequently, appellant's maximum term of confinement should be calculated as follows:  the principal term of three years for the offense of making a criminal threat, plus one-third of one year (four months) for the offense of tampering with a fire alarm (Pen.Code, § 148.4, subd. (a)), plus one-third of three months (one month) for the offense of attempted petty theft (Pen.Code, §§ 664/484, subd. (a), 490).   Totaled, appellant's maximum term of confinement is three years five months.   We order the December 2, 2010 minute order modified to reflect this correction.

II. Condition of Probation

Appellant contends that condition number 21 of his probation—specifically the condition that appellant “not use or possess narcotics, controlled substances, poisons, or related paraphernalia;  [and] stay away from places where persons whom you know to use illegal drugs or substances congregate” —is unconstitutionally vague and/or overbroad, and “potentially dangerous to [his] health.”   According to appellant, the condition prohibits appellant from possessing narcotics, such as pain relievers containing codeine, that a physician lawfully prescribes to him.   Appellant requests that this court modify the condition by adding the term “illegal” so that the condition prohibits appellant from using or possessing “illegal narcotics, controlled substances, poisons, or related paraphernalia․”

The Attorney General agrees with appellant that condition number 21 “applies [only] to the use or possession of illegal drugs, not those legally prescribed by a doctor.”   He argues, however, that modifying condition number 21 is unnecessary, because the second clause of the condition explicitly references “illegal drugs,” and thus, “[a] reasonable person would understand that the probation condition prohibits only [the possession and use of] illegal drugs.”

As a threshold matter, we note that appellant did not object to this particular condition at the adjudication hearing.   Appellant's failure to object in this case, however, did not result in a forfeiture of his claim.   (In re Sheena K. (2007) 40 Cal.4th 875, 887 [“a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law” and not subject to forfeiture even if raised for the first time on appeal].)

“[T]he underpinning of a vagueness challenge is the due process concept of “ ‘fair warning.’ ”  (In re Sheena K., supra, 40 Cal.4th 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,’ if it is to withstand a challenge on the ground of vagueness.  (People v. Reinertson (1986) 178 Cal.App.3d 320, 324–325.)   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., supra, 40 Cal.4th at p. 890.)   If a reviewing court concludes on the merits that a probation condition is unconstitutionally vague and/or overbroad in its literal wording, the reviewing court may modify the condition so as to render it constitutionally sound.  (Id. at pp. 878, 892.)

We agree with appellant that the literal wording of condition number 21 is ambiguous as to whether appellant is permitted to use and possess legally prescribed narcotics.   This ambiguity, in certain circumstances, might render it unreasonably difficult for appellant to know what is required of him, and for his probation officer to know whether appellant has violated the terms of his probation.   Accordingly, we modify condition number 21 to read:  “Do not use illegal narcotics, controlled substances, poisons, or related paraphernalia;  stay away from places where persons whom you know to use illegal drugs or substances congregate.”

DISPOSITION

The maximum term of confinement is modified to three years five months.   Condition number 21 is modified as noted above.   In all other respects, the juvenile court's order declaring appellant a ward of the court is affirmed.   The juvenile court is directed to prepare a new minute order and serve it on appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN1. All subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.