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Name: In re Kevin F.
Case #: A140445
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 08/10/2015

Probation condition prohibiting weapon possession is modified to require that the delinquent minor intend to use items that are not inherently dangerous, as deadly weapons. A petition alleging the minor committed robbery was sustained by the juvenile court (Welf. & Inst. Code, § 602). The minor was declared a ward and placed on probation. One term of probation prohibited the minor from possessing weapons of any kind or toys that looked like weapons. The juvenile court listed a number of specifically prohibited items, like guns and knives, then added the proscription against the minor possessing anything that could be used as a weapon or which another person might consider to be a weapon. The minor appealed the probation condition. Held: Probation term modified. A juvenile court may impose reasonable probation conditions (Welf. & Inst. Code, § 730, subd. (b)), but they must be sufficiently precise for the minor to know what is prohibited and for the court to know whether the condition has been violated. A condition that impinges on a constitutional right must be sufficiently tailored to avoid being unconstitutionally vague or overbroad. The omission of “deadly and dangerous” from the weapon condition did not render it vague, as the specifically listed examples implicitly gave notice of what is prohibited. However, the prohibition against possessing anything the minor could use as a weapon failed to provide adequate notice of prohibited conduct, as what is a de facto weapon in part depends on the intent to use the item for a dangerous or deadly purpose. The condition was therefore modified to prohibit the minor from possessing any item that he intends to use as a weapon.

A probation term should include a scienter requirement. The Court of Appeal also modified the probation term prohibiting weapon possession by adding a scienter requirement. The court noted the statutes governing revocation of adult (Pen. Code, § 1203.2, subd. (a)) and juvenile (Welf. & Inst. Code, § 777) probation do not specify that only a willful violation may result in revocation. While it would be an abuse of discretion to revoke probation because of events beyond the probationer’s control, “the mens rea standard in revocation proceedings is difficult to state beyond that” and offers little protection against unwitting violations. The court modified the term to prohibit the minor from knowingly possessing anything that he intends to use as a weapon or that he knows someone else might consider to be a weapon. The court disagreed with People v. Moore (2012) 211 Cal.App.4th 1179, People v. Hall (2015) 236 Cal.App.4th 1124, and People v. Contreras (2015) 237 Cal.App.4th 868, which found that probation conditions need not articulate a mens rea requirement.