Filed 7/8/16 In re T.W. CA1/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re T.W., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,                                   A146497
v.
T.W.,                                                                (Marin County
                                                                     Super. Ct. No. JV 25858G)
         Defendant and Appellant.


                                                INTRODUCTION
         In this appeal from the juvenile court, we are asked to review three conditions of
probation imposed as a part of appellant’s disposition. The conditions are the minor
abstain from use of illicit drugs, refrain from possession of weapons, and refrain from
association with persons in possession of weapons. After our review, we conclude the
conditions are appropriate but each one merits modification of the terms. We otherwise
affirm the judgment of the trial court.
                                       STATEMENT OF THE CASE
         On April 8, 2014, appellant was declared to be a ward of the court by the juvenile
court of Marin County. On October 28, 2014, the court placed appellant on supervised
probation for an indefinite period pursuant to Welfare and Institutions Code section 602.1
On June 12, 2015, appellant was placed at a program called Keeping Youth Journeying
Onward (KYJO). However, on July 22, 2015, because of his behavior, appellant was
terminated from KYJO. At approximately the same time, the probation department of
Marin County noticed a motion to violate appellant’s probation pursuant to section 777.
At a hearing on August 21, 2015, the trial court sustained the motion. Appellant was
continued as a ward of the juvenile court and reinstated on probation on September 22,
2015, with the conditions challenged in this appeal as part of his probation. His notice of
appeal was filed on October 1, 2015.
       When appellant arrived at KYJO, the manager of the group home explained the
rules of the program and the expectations of the minors who remain there. Within the
short period appellant participated in KYJO, he engaged in more than 20 rule violations
triggering incident reports. The manager observed several incidents when appellant left
the facility without permission. On various occasions, appellant was found in possession
of pills without proper prescription. Appellant would toss urine on staff at KYJO.
Because of this pattern of reprehensible behavior, appellant was removed from the
program. All this took place after the minor was admonished violation of program rules
would trigger his termination.
       A family therapist at KYJO, Andralyn Keys, was assigned to appellant and
testified at the hearings. She also reminded the minor of the need for his compliance with
the rules and policies of the program. During the period of one month, she was aware of
25 separate reports describing rule violations by appellant and she concluded the minor
was aware of his poor performance.




       1
         Unless otherwise stated, all statutory references are to the Welfare and
Institutions Code.

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       At a dispositional hearing on September 22, 2015, where the court engaged in
considerable conversation with the appellant, counsel, and family of the minor, the judge
proceeded to impose several conditions often deemed routine in juvenile delinquency
proceedings. The conditions challenged in this appeal are the following: “You must
abstain from the use . . . of illicit drugs. . . . You’re not to possess any weapons or
associate with anyone who is in possession of weapons.” No objection was made by
counsel for the minor to any particular probation condition, including those presented in
this appeal.
                                       DISCUSSION
       As a general rule, a trial judge in delinquency court has authority to “impose and
require any and all reasonable conditions that it may determine fitting and proper to the
end that justice may be done and the reformation and rehabilitation of the ward
enhanced.” (§ 730, subd. (b); see § 202, subd. (b).) “Nothing in this section shall be
construed to limit the authority of a juvenile court to provide conditions of probation.”
(§ 729.1, subd. (a)(1).) In deciding what conditions to place on a juvenile probationer,
“ ‘ “the juvenile court must consider not only the circumstances of the crime but also the
minor’s entire social history.” ’ ” (In re Jason J. (1991) 233 Cal.App.3d 710, 714,
overruled on another point in People v. Welch (1993) 5 Cal.4th 228, 237.) “ ‘A juvenile
court enjoys broad discretion to fashion conditions of probation for the purpose of
rehabilitation and may even impose a condition of probation that would be
unconstitutional or otherwise improper so long as it is tailored to specifically meet the
needs of the juvenile.’ ” (In re J. B. (2015) 242 Cal.App.4th 749, 753–754.) The
conditions of probation fashioned by a juvenile court are distinguishable from the
determinations of an adult court. In the juvenile setting, as here, a probation condition
“ ‘is an ingredient of a final order for the minor’s reformation and rehabilitation.’ ” (In re
Ronnie P. (1992) 10 Cal.App.4th 1079, 1089.) “ ‘[J]uvenile probation is not an act of
leniency, but it is a final order made in the minor’s best interest.’ ” (In re Tyrell J. (1994)

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8 Cal.4th 68, 81, overruled on another point in In re Jaime P. (2006) 40 Cal.4th 128,
130.)
        In this matter, the trial court imposed a condition the minor not possess any “illicit
drugs.” The court did not further qualify the condition. While we believe the condition
is appropriate, we will modify it to the following: “Minor shall not possess any
controlled substances without a valid prescription.” This is compatible with the request
of appellant. We do not believe there needs to be an explicit scienter requirement
imposed in this condition nor the one dealing with weapons imposed by the court. Any
possession of “controlled substances without a valid prescription” or weapons implicitly
mandates the possession is a deliberate one. To be a violation of probation, the
possession must be deliberate. Our cases, on the whole, draw a line respecting probation
conditions that simply reinforce existing penal statutes that forbid possession of items
already subject to restriction. Penal laws dealing with drugs and weapons, which all
probationers are expected to follow, contain implicit scienter elements. Due process does
not require making the implicit knowledge element explicit when the prohibition
becomes a probation condition. (People v. Rodriguez (2013) 222 Cal.App.4th 578, 591;
People v. Moore (2012) 211 Cal.App.4th 1179, 1183–1189; People v. Kim ( 2011)
193 Cal.App.4th 836, 843–847.) We have already followed these cases in People v.
Gaines (2015) 242 Cal.App.4th 1035, of which the Supreme Court granted review on
February 17, 2016 (S231723). Based on the cited authority, we decline to follow In re
Kevin F. (2015) 239 Cal.App.4th 351, with its support for an express knowledge
requirement in probation conditions precluding possession of drugs and weapons.
        Regarding the condition of probation prohibiting appellant from possession of
“weapons,” to avoid vagueness issues, we will modify the condition to preclude the
possession of “dangerous and/or deadly weapons.” As modified, we believe this
condition comports with constitutional requirements of probation conditions. As
indicated above, no express knowledge language is necessary to affirm the condition.

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       Finally, regarding the trial court’s condition prohibiting appellant from associating
with “anyone who is in possession of weapons,” the Attorney General agrees the
condition is overbroad. We will modify this condition as follows: “Minor is prohibited
from remaining in the presence of any person the minor knows or reasonably should
know is an unlawfully armed person.” This modification is appropriate when dealing
with restrictions in rights of association by a juvenile when he is on probation.
                                      DISPOSITION
       The probation condition dealing with “illicit drugs” is modified to read: “Minor
shall not possess any controlled substances without a valid prescription.” The probation
condition dealing with “weapons” is modified to read: “Minor shall not possess any
dangerous and/or deadly weapons.” The probation condition dealing with “associating
with anyone who is in possession of weapons” is modified to read: “Minor is prohibited
from remaining in the presence of any person the minor knows or reasonably should
know is an unlawfully armed person.” In all other respects the judgment is affirmed.



                                                  _________________________
                                                  DONDERO, J.


We concur:


_________________________
HUMES, P. J.


_________________________
MARGULIES, J.




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