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In re Adam

Court of Appeals of California, Sixth Appellate District.
Nov 20, 2003
H025862 (Cal. Ct. App. Nov. 20, 2003)

Opinion

H025862.

11-20-2003

In re ADAM H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ADAM H., Defendant and Appellant.


Adam H., a minor, appeals from the orders of the juvenile court finding him to be a ward of the court and placing him on probation. (Welf. & Inst. Code, § 602.) He challenges one of his probation conditions as unconstitutionally overbroad. We agree and modify the order.

BACKGROUND

On October 29, 2002, the minor entered a house through the bedroom window in order to "borrow" a car movie. The homeowner returned home to find his master bathroom door shut. He found the minor inside the bathroom crying. The minor initially told the responding police officer that he had been chased by another juvenile, had panicked and entered the residence to hide. The minor then admitted that he broke into the home to steal a DVD and then hid in the bathroom when he heard the owner come home.

On March 25, 2003, the juvenile court found true the allegations of the petition, that the minor came within the provisions of Welfare and Institutions Code section 602 in that he committed a felony, first degree burglary in violation of Penal Code sections 459 and 460, subdivision (a). The minor was adjudged a ward of the court, placed on probation and ordered to serve 45 days in juvenile hall, through the Electronic Monitoring Program.

DISCUSSION

One of the conditions of the minors probation is that he not "own, use, or possess any dangerous or deadly weapons and not remain in any building, vehicle, or the presence of any person where dangerous or deadly weapons exist." He complains that this condition is constitutionally overbroad in that it does not require that he have knowledge of possessing or knowledge of the presence of dangerous or deadly weapons.

The minor made no challenge in the trial court to this probation condition. Ordinarily, this failure to timely challenge a probation condition in the trial court waives the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) The minor insists that such a waiver applies only to a challenge to the reasonableness of the condition and not to a constitutionally-based challenge. (See In re Justin S. (2001) 93 Cal.App.4th 811, 816; People v. Peck (1996) 52 Cal.App.4th 351, 362.) The minor maintains that his constitutional claim presents pure questions of law which can be resolved without reference to the particular sentencing record developed in the trial court. (See People v. Welch, supra, 5 Cal.4th at p. 235.)

However, other courts have concluded otherwise: "A defendant who contends a condition of probation is constitutionally flawed still has an obligation to object to the condition on that basis in the trial court in order to preserve the claim on appeal. (In re Josue S. (1999) 72 Cal.App.4th 168, 170-171.)" (People v. Gardineer (2000) 79 Cal.App.4th 148, 151.)

In any event, the minor also raises a claim of ineffective assistance of counsel in that his trial counsel failed to object to this condition. Thus we consider the merits of his challenge. " ` "Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn. To the extent it is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights." (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.)" (People v. Garcia (1993) 19 Cal.App.4th 97, 101-102.) In Garcia, the court modified a condition prohibiting an adult probationer from associating with felons, ex-felons, and users and possessors of narcotics. The condition was "modified to provide that appellant is not to associate with persons he knows to be users or sellers of narcotics, felons or ex-felons." (Id. at p. 103.) In People v. Lopez (1998) 66 Cal.App.4th 615, the court generally approved of imposing gang-related probation conditions, but found that the condition prohibiting the defendant from associating with any gang members suffered from constitutionally fatal overbreadth because it prohibited the defendant from associating with persons not known to him to be gang members. The condition was modified to prohibit association with any person known to the defendant to be a gang member. (Id. at p. 638; see also In re Justin S., supra, 93 Cal.App.4th at p. 816 [probation condition prohibiting the minor from associating with gang members].)

The Attorney General asserts that the probation condition is narrowly drawn because it contains an implicit knowledge requirement. But we agree with the Garcia court that the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, requires that a factor such as knowledge should not be left to implication. (People v. Garcia, supra, 19 Cal.App.4th at p. 102.)

DISPOSITION

The probation condition at issue is modified as follows: That the minor not own, use, or knowingly possess any dangerous or deadly weapons and not remain in any building, vehicle, or the presence of any person where he knows that dangerous or deadly weapons exist. As modified, the judgment is affirmed.

WE CONCUR: Rushing, P.J., Mihara, J.


Summaries of

In re Adam

Court of Appeals of California, Sixth Appellate District.
Nov 20, 2003
H025862 (Cal. Ct. App. Nov. 20, 2003)
Case details for

In re Adam

Case Details

Full title:In re ADAM H., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:Court of Appeals of California, Sixth Appellate District.

Date published: Nov 20, 2003

Citations

H025862 (Cal. Ct. App. Nov. 20, 2003)