Opinion
A154600
09-09-2019
In re DOMINIQUE B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DOMINIQUE B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. JW17-6209)
Dominique B. appeals from the juvenile court's dispositional order, arguing that a drug related condition of probation the court imposed is unconstitutionally vague and overbroad on its face. We agree, and shall therefore modify the condition.
PROCEDURAL BACKGROUND
Because the underlying facts of appellant's offenses are not relevant to resolution of the issue raised on appeal, we will not include them here.
On August 15, 2017, the San Francisco County District Attorney filed a juvenile wardship petition against appellant, pursuant to Welfare and Institutions Code section 602, subdivision (a), which included allegations of felony battery on a transit employee or passenger (§ 243.3—count I); inflicting injury on an elder or dependent adult (§ 368, subd. (c)—count II); first degree robbery of a transit passenger (§ 211—count III); and misdemeanor battery on a transit employee or passenger (§ 243.3—count IV).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a contested jurisdictional hearing on January 5, 2018, the juvenile court found true the misdemeanor assault on a transit passenger count and, as a lesser included offense of the robbery count, felony grand theft (§ 487, subd. (c)). The court found counts II and IV not true.
On April 16, 2018, the district attorney filed a second juvenile wardship petition, alleging first degree robbery of a transit passenger (§ 211—count I); felony battery on a transit employee or passenger (§ 243.3—count II); and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)—count III).
At a pretrial conference on April 26, 2018, appellant admitted the felony battery on a transit passenger count and the court dismissed counts I and III.
At the May 21, 2018 dispositional hearing, the court declared wardship and ordered out of home placement. The court also imposed various conditions of probation.
On June 14, 2018, appellant filed a notice of appeal.
DISCUSSION
At the May 21, 2018 dispositional hearing, the court imposed numerous conditions of probation, including the one challenged here. At the hearing, the court orally described the condition as follows: "[Y]ou must not have, possess or use, sell or otherwise be connected with any drugs other than those prescribed to you by a doctor who is treating you[.]"
This condition was set forth in the written dispositional order as follows: "Not to use, possess or sell any narcotics, controlled substances, alcohol, marijuana or other intoxicants. That means no drugs without a lawful prescription from a doctor/physician."
Appellant contends this condition of probation is unconstitutionally vague and overbroad, and must therefore be modified. She did not raise this issue in the trial court. However, an appellate court may review the constitutionality of a probation condition for the first time on appeal "when the challenge is based on the ground the condition is vague or overbroad and thus facially unconstitutional." (In re Sheena K. (2007) 40 Cal.4th 875, 878 (Sheena K.).)
"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.] 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. [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.)
Appellant contends—and respondent concedes—that the portion of the probation condition providing that appellant may not possess or use "drugs other than those prescribed to you by a doctor who is treating you" is overbroad because it prevents appellant from possessing or using over the counter medications.
We agree with the parties that this portion of the condition is unconstitutionally overbroad because it is not sufficiently tailored to the purpose of the condition due to the inclusion of legal over the counter medications within its scope. We further agree with the parties that this portion of the condition should be modified to read: "Appellant shall not possess, use, or sell any drugs or intoxicants (including alcohol and marijuana), excluding pharmaceutical drugs prescribed by appellant's doctor or legal nonprescription drugs." (See Sheena K., supra, 40 Cal.4th at p. 888 [defendant's challenge to probation condition as facially vague and overbroad was "a pure question of law, easily remediable on appeal by modification of the condition"].)
Appellant further argues that the portion of the condition providing that she "must not have, possess or use, sell or otherwise be connected with any drugs" is vague because the phrase, "otherwise be connected with" is not " 'sufficiently precise for [appellant] to know what is required of [her], and for the court to determine whether the condition has been violated . . . .' " (Sheena K., supra, 40 Cal.4th at p. 890.) We agree that the "otherwise be connected with" language is not sufficiently precise to inform appellant of exactly what is required of her. Consequently, this portion of the condition must also be modified. (See Sheena K., at p. 888.)
Respondent does not agree that the condition is unconstitutionally vague, but nevertheless proposes language that would add "a knowledge requirement, and an explicit description of the persons with whom appellant must not associate," which would read as follows: "Appellant shall not associate with any person whom she knows to be possessing, using, or selling any drugs, or knowingly be in any place where drugs are [illegally] present." We believe that respondent's proposed modification, accepted by appellant, will alleviate the vagueness problem.
We have added the word "illegally" to respondent's suggested language.
Specifically, appellant states that if we do "not strike the phrase completely," she "is amenable to the modified language suggested by respondent to cure its vagueness." --------
In conclusion, because we conclude the challenged condition is unconstitutionally vague and overbroad, we will modify it in the ways discussed in this opinion.
DISPOSITION
The drug related probation condition is modified to provide: "Appellant shall not possess, use, or sell any drugs or intoxicants (including alcohol and marijuana), excluding pharmaceutical drugs prescribed by appellant's doctor or legal nonprescription drugs. Appellant shall not associate with any person whom she knows to be possessing, using, or selling any drugs, or knowingly be in any place where drugs are illegally present."
As so modified, the order appealed from is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.