In re R.M. CA1/1

Filed 6/4/14 In re R.M. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE In re R.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent, v. R.M., A139799, A140955

Defendant and Appellant. (Contra Costa County

Super. Ct. No. J1300854) MEMORANDUM OPINION1

On August 8, 2013, minor R.M. admitted the allegations of a wardship petition charging him with felony possession of stolen property under Penal Code section 496, subdivision (a).2 After a dispositional hearing, the court, in an order dated September 6, 2013, declared the minor a ward of the court, committed him to a youth rehabilitation facility for six months, and, among various other orders, imposed the following probation conditions: the minor was not to “use or possess any weapons or burglary tools.”3

When the minor’s misconduct at the youth rehabilitation facility resulted in a probation violation, the court, on January 27, 2014, entered a second dispositional order, stating its intention that “[p]rior orders of September 6th to remain in effect, except as modified herein.”4

The minor timely appealed both dispositional orders.

On appeal, the minor challenges the orders only insofar as they impose the “weapons” and “burglary tools” probation conditions. He contends those conditions are unconstitutionally vague and overbroad because they lack specificity and a knowledge requirement. He requests the conditions be struck or modified.

As both appeals raise identical issues, we granted consolidation and resolve the appeals together.

Due process and the rule of fair warning bar enforcement of a probation condition so vague that people “ ‘ “of common intelligence must necessarily guess at its meaning and differ as to its application.” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Such a condition “ ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” ’ ” (Ibid.) Further, “[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.” (Ibid.)

The minor’s failure to raise his various constitutional objections below does not result in forfeiture. (In re Sheena K., supra, 40 Cal.4th at p. 889.) Our review is de novo. (People v. Mendez (2013) 221 Cal.App.4th 1167, 1172.)

As to the burglary tools condition, the minor suggests modifying it to read: the minor “may not possess burglar tools, as defined in Penal Code section 466.” Section 466 defines burglary tools and prohibits their possession.5 The attorney general does not oppose “modifying the condition to proscribe possessing burglary tools ‘as defined by Penal Code section 466.’ ” Accordingly, we shall order this modification.

Similarly, as to the weapons condition, the minor suggests modifying it to prohibit “possessing deadly or dangerous weapons.” The Attorney General again concurs in the modification, which uses language approved by other appellate courts. (People v. Moore (2012) 211 Cal.App.4th 1179, 1186.) Accordingly, we shall order this modification as well.

The dispositional orders are affirmed, except the probation conditions at issue set forth in the September 2013 order shall be modified to read the minor shall “not use/possess deadly or dangerous weapons,” or “burglary tools as defined in Penal Code section 466.”

_________________________ Banke, J.

We concur: _________________________ Margulies, Acting P. J. _________________________ Dondero, J.