Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County, Super Ct. No. F06903482-8, Houry A. Sanderson, Judge.
Steven A. Torres, 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, Charles A. French and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J. and Cornell, J.
OPINION
INTRODUCTION
Appellant Mark Everett James challenges the condition of his probation prohibiting him from possessing dangerous or deadly weapons, contending the condition is unconstitutionally vague and overbroad. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On July 18, 2005, James entered a plea of no contest to a charge of possession of stolen property, in exchange for dismissal of a second degree burglary charge. James was sentenced to a term of probation.
On May 31, 2006, James was charged with numerous offenses, including receipt of stolen property, grand theft, and second degree burglary.
On June 28, 2006, James was arraigned on the allegation that he had violated his probation in the case in which he pled to receipt of stolen property.
On August 4, 2006, James pled no contest to one count of possession of stolen property, in exchange for dismissal of the second degree burglary and grand theft charges. The earlier grant of probation also was revoked on August 4, 2006.
Because James had suffered two prior felony convictions, he was statutorily ineligible for probation unless unusual circumstances were found to exist. The prosecution and defense, however, apparently had agreed, as part of the negotiated plea, to request that James be placed on probation instead of being sentenced to a term of imprisonment.
The trial court accepted the plea agreement, including the provision that James be placed on probation. As a condition of probation, James was not to “possess or control any dangerous or deadly weapons, including firearms.”
After articulating the conditions of probation, the trial court asked James if he had any questions. James responded that he did and questioned his time credits. After an explanation of the time credits was provided, the trial court asked James, “Any other questions, sir? Anything else?” James had no other questions.
DISCUSSION
James contends that the probation condition prohibiting him from possessing a deadly or dangerous weapon is unconstitutionally vague and over broad because it could be interpreted as prohibiting him from possessing items such as a kitchen knife or a rock.
It is undisputed that James was represented by counsel throughout the proceedings and at the time of sentencing. It also is undisputed that James did not object to, or ask clarification of, the probation condition prohibiting him from possessing or controlling deadly or dangerous weapons.
Generally, failure to object to a probation condition at the time of sentencing forfeits for appellate purposes any challenge to the condition. (People v. Welch (1993) 5 Cal.4th 228, 234.) An adult who elects to receive probation in lieu of incarceration fairly may be charged with the responsibility of objecting in the trial court or forfeit any claim of error. (Id. at p. 235.) The California Supreme Court recently held that challenges to a probation condition on the grounds of vagueness or over breadth do not fall within an exception to the forfeiture rule; however, if the challenge to the condition raises a purely legal question, the appellate court may exercise its discretion to hear and determine the challenge. (In re Sheena K. (2007) 40 Cal.4th 875, 886-888 & fn. 7.)
Regardless, James’s concern that the probation condition precludes him from possessing ordinary household items, such as a kitchen knife, is groundless. It has long been held that the term “‘deadly or dangerous weapon’” describes two distinct classes of items: (1) those instrumentalities that are weapons in the strict sense, such as guns, dirks, and blackjacks, and (2) those items that have an everyday use, such as razors and hammers, but are deadly and dangerous based on the facts of a specific case. (People v. Graham (1969) 71 Cal.2d 303, 327-328.)
The probation condition at issue would prohibit James from possessing objects that are weapons in the strict sense and objects whose circumstances of possession indicate that the item is intended to be used as a weapon. A household item, such as a kitchen knife or hammer, possessed and being used for its intended purpose, cannot constitute possession or control of a deadly or dangerous weapon. (See People v. Burton (2006) 143 Cal.App.4th 447, 457.)
Furthermore, should James find himself facing a charge of violation of probation for possession of an ordinary household item, he is entitled to a formal hearing on the charge of violating probation and probation cannot be revoked unless he has willfully violated a probation condition. (People v. Galvan (2007) 155 Cal.App.4th 978, 982-983.)
DISPOSITION
The judgment is affirmed.