Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC76912
RUSHING, P.J.
Daniel Ngo appeals a judgment entered following his plea of no contest. On appeal, he asserts the trial court erred in ordering a probation condition that was unreasonable.
We omit a statement of the underlying facts because they are not relevant to the issue on appeal.
Defendant was charged by amended information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) - count 1); and dissuading or attempting to dissuade a witness by threat of force (§ 136.1, subd. (c)(1) - count 2). The information also alleged defendant personally used a deadly or dangerous weapon, a flashlight (§§ 667, 1192.7).
All further statutory references are to the Penal Code.
Pursuant to a negotiated disposition, defendant pleaded no contest to count 1, and admitted the personal use of deadly weapon enhancement in exchange for a dismissal of count 2.
Following the change of plea, the trial court granted defendant probation, and ordered as a condition of that probation, that defendant “is not to possess any deadly or dangerous weapon.” The court explained the condition as follows: “you are specifically prohibited from anything, that is, nothing less or nothing more than a deadly and dangerous weapon. That includes every type of knife, back jack, throwing darts or stars, guns, et cetera, et cetera.”
Defendant filed a timely notice of appeal.
Discussion
Defendant asserts on appeal that the probation condition limiting him from possessing “any type of knife,” is unreasonable.
The trial court has broad discretion to impose conditions of probation that encourage rehabilitation and protect the general public. (§ 1203.1; People v. Fritchey (1992) 2 Cal.App.4th 829, 836.) In People v. Lent (1975) 15 Cal.3d 481, the Supreme Court stated the test for determining whether a particular condition of probation is invalid: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (Id. at p. 486, fn. omitted.)
Defendant argues the prohibition against “any type of knife,” is unreasonable, because it could encompass something as benign as a plastic picnic knife. This broad prohibition, defendant asserts, is not directly related to the crime of which he was convicted, and therefore, should be stricken.
Certainly, the court’s prohibition that defendant not possess any deadly or dangerous weapon is reasonable and related to the crime to which defendant was convicted. However, the requirement that defendant not possess “any type of knife,” is unreasonably broad, and places defendant at considerable peril of violating his probation.
The Attorney General attempts to circumvent the condition’s broadness by arguing that any type of knife, including a plastic picnic knife could be considered a dangerous or deadly weapon if used as such. It is true that a plastic picnic knife, along with many otherwise benign household items could be used as deadly or dangerous weapons. However, simply because defendant could use an item as a deadly or dangerous weapon does not mean he should be prohibited from possessing it as a term of his probation. For example, under the current condition, in the circumstance that a probation officer is searching defendant’s home, and finds a plastic picnic knife, defendant would be in violation of his probation, regardless of defendant’s actual or intended use of the knife. Therefore, whether any type of knife could be used as a deadly weapon is not relevant to the probation condition.
Here, the prohibition of possession of “any type of knife,” is unreasonably broad, and is not “reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent, supra, 15 Cal.3d at p. 486.) Therefore, the condition must be stricken.
Disposition
The probation condition prohibiting defendant from possessing “any type of knife,” is stricken. As modified, the judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.