Opinion
C086574
11-14-2019
In re J.N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.N., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JDSQ16514)
Minor J.N. appeals from his juvenile adjudication of attempted murder and criminal street gang activity. He contends the probation condition requiring that he "shall neither possess nor have under his control any weapon" is unconstitutionally vague and overbroad. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We dispense with a more detailed factual recitation as the underlying facts are irrelevant to the issue on appeal.
Following a contested jurisdiction hearing at the juvenile court, the court found true allegations the minor committed attempted murder (Pen. Code, §§ 187, subd. (a), 21a, 664, subd. (a)) and criminal street gang activity (§ 186.22, subd. (a)). The juvenile court found true the enhancement allegations the attempted murder was willful, deliberate, and premeditated (§§ 189, 664, subd. (a)), and the minor committed the offense on behalf of a criminal street gang (§ 186.22, subd. (b)(1)). As to both counts, the juvenile court found true the allegations the minor unlawfully used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).
Undesignated statutory references are to the Penal Code. --------
The juvenile court adjudged the minor a ward of the court and ordered the minor committed to a group home for a minimum of one year. The juvenile court also placed the minor on probation and imposed a number of probation conditions, including probation condition No. 19, which provided that the minor "shall neither possess nor have under his control any weapon."
DISCUSSION
The minor argues probation condition No. 19 is unconstitutionally vague and overbroad. He contends the condition does not adequately and reasonably instruct him on which instrumentalities he may not possess because the term "weapon" could be construed "to include anything that could cause harm under the right circumstances." We disagree.
I
Forfeiture
The People assert J.N. forfeited his claim on appeal by not objecting to the condition at the juvenile court. As a general rule, a defendant must first raise the issue in the trial court to challenge a probation condition on appeal. (See People v. Welch (1993) 5 Cal.4th 228, 237.) But a defendant may contend for the first time on appeal that a probation condition is unconstitutionally vague or overbroad on its face when the challenge presents a pure question of law that the appellate court can resolve without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 887-889 (Sheena K.).) Here, we need not consider the sentencing record to determine whether the term "weapon" in a probation condition is unconstitutionally vague or overbroad. Therefore, we consider the minor's challenge to the probation condition's constitutionality.
II
Vagueness and Overbreadth
To withstand a challenge on the ground of vagueness, "[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.' " (Sheena K., supra, 40 Cal.4th at p. 890.) "[A] probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' " (People v. Hall (2017) 2 Cal.5th 494, 501.) "In determining whether the condition is sufficiently definite, however, a court is not limited to the condition's text. [Citation.] We must also consider other sources of applicable law [citation], including judicial construction of similar provisions. [Citations.]" (Id. at p. 500.)
A probation condition prohibiting a minor from possessing any " 'dangerous or deadly weapon' " is not unconstitutionally vague because that term "is clearly established in the law" and is therefore "sufficiently precise for [the minor] to know what is required of him." (In re R.P. (2009) 176 Cal.App.4th 562, 568.) " 'Dangerous or deadly weapons' " include "weapons in the strict sense of the word," instrumentalities that are dangerous or deadly to others when used in the ordinary manner for which they were designed. (People v. Raleigh (1932) 128 Cal.App. 105, 108.) But items that are not designed to be dangerous or deadly in their ordinary use may also qualify as " 'dangerous or deadly weapons' " when they are possessed with the intent to be used "as a weapon should the circumstances require." (Id. at pp. 108-109.) The "legal definitions of 'deadly or dangerous weapon,' 'deadly weapon,' 'dangerous weapon,' and use in a 'dangerous or deadly' manner, consistently include the harmful capability of the item and the intent of its user to inflict, or threaten to inflict, great bodily injury." (In re R.P., at p. 568.)
Nor is it necessary that the probation condition explicitly state the prohibited weapons must be "dangerous or deadly." "[T]he notion that an instrument or object must be either 'dangerous or deadly' in order to qualify as a 'weapon' is so fundamental that it need not be stated explicitly." (In re Kevin F. (2015) 239 Cal.App.4th 351, 360, disapproved of on other grounds by People v. Hall, supra, 2 Cal.5th 494.) "[T]he qualifier 'dangerous or deadly' inheres in the commonly understood meaning of the term 'weapon,' " and therefore the qualifier "dangerous or deadly" "is implicit in the probation condition as phrased by the [trial] court." (Ibid.)
Therefore, we disagree with the minor that he may be found in violation of his probation condition merely for innocently possessing everyday items. Our case law makes clear a "weapon" is an instrumentality that is either a weapon in the strict sense of the word or that is capable of being used as a weapon and is being possessed with intent to inflict, or threaten to inflict, great bodily injury. Probation condition No. 19 is not unconstitutionally vague because it is " 'sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.' " (Sheena K., supra, 40 Cal.4th at p. 890.)
The minor next contends probation condition No. 19 is constitutionally overbroad because the minor could be found in violation of probation for possessing what could otherwise amount to an everyday household item. We disagree.
To avoid being invalidated as unconstitutionally overbroad, "[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition." (Sheena K., supra, 40 Cal.4th at p. 890.) As we discussed, ante, probation condition No. 19 does not prohibit the minor from possessing household items that could, in certain circumstances, be used as a weapon. Rather, the probation condition prohibits the minor from knowingly possessing or having in his control instrumentalities that are weapons "in the strict sense of the word"—e.g., guns, knives, dirks, daggers, blackjacks, etc.—and instrumentalities that could conceivably be used as weapons when those instrumentalities are possessed with intent to inflict, or threaten to inflict, great bodily injury. Therefore, we conclude the probation condition is narrowly tailored to the purpose of the condition, which is to prevent the minor from possession dangerous instrumentalities with which he could inflict great bodily injury. Probation condition No. 19 is not unconstitutionally overbroad.
DISPOSITION
The juvenile court's dispositional order is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
DUARTE, J.