Opinion
F053640
4-18-2008
In re BRUCE H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. BRUCE H., Defendant and Appellant.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
INTRODUCTION
Appellant Bruce H. challenges as constitutionally overbroad his probation condition prohibiting him from using drugs, intoxicants, or inhalants, or associating with anyone who uses drugs. The People do not object to revision of this language to address Bruces challenge. Therefore, we will modify the language of the probation condition and affirm in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
The Kern County Juvenile Court found true that Bruce brandished a pellet rifle, in violation of Penal Code section 417.4, and that he violated juvenile probation by committing the offense. The juvenile court removed Bruce from the custody of his parents and committed him to Camp Erwin Owen for a term of one year eight months. Bruce was continued on probation for a period not to exceed three years, with the condition that he not "possess, use or consume any drug, intoxicant, or inhalant nor associate or initiate contact with anyone known to minor to be involved in same."
DISCUSSION
Bruce contends the probation condition prohibiting him from possessing, using, or consuming any drug, intoxicant, or inhalant is overbroad because it encompasses legally possessed or prescribed medications.
Bruce did not object to this language in the juvenile court. The California Supreme Court, in In re Sheena K. (2007) 40 Cal.4th 875, held that a minor may challenge the constitutionality of a probation condition for the first time on appeal so long as the challenge raises a question "`"of law that can be resolved without reference to the particular sentencing record developed in the trial court"" (id. at p. 889) and is "easily remediable on appeal by modification of the condition." (Id. at p. 888.)
Although the People contend it is unlikely the probation condition would be interpreted as Bruce posits, the People have no objection to modifying the probation condition to read as follows:
"The minor shall not possess, use or consume any illegal drugs, intoxicants, or inhalants or associate or initiate contact with anyone known to the minor to use illegal drugs, intoxicants, or inhalants."
The juvenile court obviously was seeking to prevent additional criminal behavior by Bruce and to steer him on the road to rehabilitation. A rehabilitative purpose is not served if the probation condition proscribes lawful behavior or the lawful use of prescription or over-the-counter medications. (See, e.g., People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1444.)
The modification suggested by the People addresses the concern raised by Bruce and serves the rehabilitative purpose of proscribing unlawful behavior while allowing lawful use and possession of medications.
DISPOSITION
The probation condition on the use and possession of drugs shall be modified to read as follows: "The minor shall not possess, use or consume any illegal drugs, intoxicants, or inhalants, or associate or initiate contact with anyone known to the minor to use illegal drugs, intoxicants, or inhalants." In all other respects, the dispositional order is affirmed. --------------- Notes: Before Cornell, Acting P.J., Gomes, J. and Kane, J.