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In re Xavier H.

California Court of Appeals, Second District, Third Division
Feb 25, 2008
No. B202246 (Cal. Ct. App. Feb. 25, 2008)

Opinion


In re XAVIER H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. XAVIER H., Defendant and Appellant. B202246 California Court of Appeal, Second District, Third Division February 25, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. PJ40021, Jack J. Gold, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

ALDRICH, J.

In connection with separate incidents, the juvenile court sustained two petitions filed under Welfare and Institutions Code section 602 against minor and appellant Xavier H. As to the first petition, filed on February 9, 2007, the court sustained one count of trespass by entering and occupying (Pen. Code, § 602, subd. (m)). As to the second petition, filed on April 3, the court sustained one count of sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). At the disposition hearing on both petitions on September 4, 2007, the court placed the minor home on probation, imposed conditions of probation, and set the maximum term of confinement at four years, two months.

The minor makes two contentions on appeal. First, he contends that condition of probation No. 15 is unconstitutionally vague and over broad because it does not include a knowledge requirement. Condition of probation No. 15 directs minor “not [to] associate with co-minors” and with anyone disapproved of by his parents and probation officer. Our California Supreme Court held that this probation condition is unconstitutionally vague because it does not contain an express requirement the minor know the identity of those individuals of whom the parents and probation officer disapprove. (In re Sheena K. (2007) 40 Cal.4th 875, 890-891; see also People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 [if a knowledge requirement is not explicitly stated, it will be implied].) Therefore, as the Attorney General concedes, condition of probation No. 15 must be modified to direct minor not to associate with anyone whom he knows is disapproved of by his parents and by his probation officer.

Minor’s second contention is it was unnecessary for the juvenile court to set a maximum term of confinement, a contention that the Attorney General also concedes. Where, as here, a juvenile is placed home on probation, there is no need to set a maximum term of confinement. (In re Ali A. (2006) 139 Cal.App.4th 569, 571.) “Consequently, the maximum term of confinement included in the dispositional order here is of no legal effect.” (Ibid.) Although the four years, two months maximum term of confinement imposed here consequently has “no legal effect,” we nevertheless strike it.

DISPOSITION

The judgment is affirmed as modified.

We concur: CROSKEY, Acting, P. J. KITCHING, J.


Summaries of

In re Xavier H.

California Court of Appeals, Second District, Third Division
Feb 25, 2008
No. B202246 (Cal. Ct. App. Feb. 25, 2008)
Case details for

In re Xavier H.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. XAVIER H., Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Feb 25, 2008

Citations

No. B202246 (Cal. Ct. App. Feb. 25, 2008)

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