Filed 4/28/16 In re S.N. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



In re S.N., a Person Coming Under the
Juvenile Court Law.


THE PEOPLE,
                                                                     A145354
         Plaintiff and Respondent,
v.                                                                   (San Mateo County
                                                                     Super. Ct. No. 83918)
S.N.,
         Defendant and Appellant.



         The juvenile court found true misdemeanor allegations S.N. (the minor) possessed
graffiti materials with the intent to commit vandalism (Pen. Code, § 594.2, subd. (a))1 and
willfully and unlawfully resisted, delayed, or obstructed a peace officer (§ 148, subd.
(a)(1)). The court adjudicated the minor a ward of the court (Welf. & Inst. Code, § 602)
and placed him on probation with various terms and conditions, one of which precluded
him from possessing “graffiti materials” except under specified circumstances.
         The minor appeals. He contends: (1) the prosecution did not rebut section 26’s
presumption that a person under the age of 14 is incapable of committing a crime; (2)
insufficient evidence supports the finding he possessed graffiti materials with intent to
commit vandalism in violation of section 594.2, subdivision (a); (3) the prosecution did
1
         Unless noted, all further statutory references are to the Penal Code.

                                                             1
not establish he “‘willfully delay[ed]’” in violation of section 148, subdivision (a)(1); and
(4) the probation condition prohibiting him from possessing “graffiti materials” is
unconstitutionally vague because it lacks a knowledge requirement. We modify the
probation condition but otherwise affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In August 2014, the People filed a Welfare and Institutions Code section 602
petition alleging the minor committed felony vandalism (§ 594, subd. (b)(1) (Count 1)),
misdemeanor possession of graffiti materials with the intent to commit vandalism (§
594.2, subd. (a) (Count 2)), and misdemeanor resisting, delaying, or obstructing a police
officer (§ 148, subd. (a)(1) (Count 3)). The petition alleged the offenses occurred in June
2014, when the minor was 13 years and 6 months old.2
Prosecution Evidence
       On a June 2014 afternoon, San Mateo Police Officer Marcelo Altwer was in
uniform on his police motorcycle near the Hayward Park Caltrain Station when he saw
two young men — later identified as the minor and J.V. — sitting on a bench. As Officer
Altwer “got closer,” he saw the boys “diligently writing” on the bench. The boys did not
see Officer Altwer: they were bent over, “busy writing their names or writing something
on the bench.” After confirming “they were writing” on the bench, Officer Altwer
yelled, “‘Hey, you need to stay there. I need to talk to you.’”
       In response, the boys got up from the bench and ran away from Officer Altwer,
toward the train station. Officer Altwer followed the boys on his motorcycle; using his
public address system, he ordered them to stop. The boys continued running for between
one and two minutes, “constantly looking back to see” whether Officer Altwer was
“getting closer[.]” Finally — after running “several hundred feet” across the station
platform and toward the road — the boys stopped near a fence. Officer Altwer ordered



2
       In March 2015, the People filed a second section 602 petition alleging the minor
committed misdemeanor vandalism at Gap and Pottery Barn in October 2014 (§ 594,
subd. (b)(2)). The People later dismissed the petition.

                                              2
the boys to sit and they complied. J.V. was “very cooperative.” Officer Altwer
patsearched J.V. and he sat down.
       The minor was wearing a backpack. Officer Altwer wanted to “look inside . . .
[to] make sure there weren’t any weapons[,]” but the minor refused to be patsearched.
He repeatedly said, “‘You’re not searching me. You’re not touching me’” and “‘You’re
not checking me.” When Officer Altwer reached over to grab a backpack shoulder strap,
the minor “leaned backwards” and crossed his arms to make it more difficult for Officer
Altwer to remove the backpack. Officer Altwer told the minor he needed to “pat him
down and check the backpack.” The minor responded, “‘You’re not checking me.
You’re not checking my backpack.’” At that point, other officers — including Officers
Haddad and Heinsma — arrived. Officer Altwer did not realize Officer Haddad had
arrived; he was distracted by the minor’s “aggressive behavior.”
       Officer Altwer grabbed a shoulder strap and the minor’s right arm; Officer
Heinsma grabbed the minor’s left arm. In response, the minor became “very belligerent,
very loud saying, ‘[Y]ou’re not checking me. You’re not checking my backpack.’” As
Officer Altwer tried to remove the backpack, the minor yelled, “‘You’re not fucking
checking me. You’re not checking my backpack.’” One of the straps came off of the
minor’s shoulder, but the minor “was still resisting” and “struggling” with the officers.
The situation was “similar to a tug-of-war[.]” The officers “weren’t sure what was in the
backpack and why somebody of his age would be so resistive to [the officers] just
checking the backpack.” Officer Altwer continued to explain why the officers needed to
conduct a patsearch but the minor “continued to resist.” J.V. told the minor, “‘You’ve
got to calm down.’”
       The three officers brought the minor to the ground and tried to handcuff him.
Officer Haddad told the minor, “‘Stop resisting’” and the minor eventually relented,
saying “‘Okay. Okay.’” The minor’s refusal to show the officers his hands and his
refusal to cooperate “was of grave concern” to Officer Haddad. Officer Haddad
handcuffed the minor and removed his backpack. The backpack contained what is
“commonly referred to as a slap tag” with the word “spit” on it. “[S]erial vandalizers”


                                             3
take shipping label stickers from the post office and “draw their monikers or tag whatever
they would normally [ ] so that when they do decide to deploy the sticker[,] the
vandalism is already pretty much done.” The minor’s backpack also had “practice
drawings on a piece of paper[,]” a latex glove, and two pens.
       Officers Altwer and Haddad returned to the bench where Officer Altwer first saw
J.V. and the minor. The officers saw graffiti — including the word “spit” — in white ink
on the bench and a nearby garbage can. They also found a white pen behind the bench.
Motion to Dismiss and Officer Haddad’s Additional Testimony
       At the conclusion of the prosecution’s case-in-chief, defense counsel moved to
dismiss (Welf. & Inst. Code, § 701.1), claiming the prosecution failed to rebut the
presumption of incapacity in section 26. Defense counsel argued the prosecution did not
establish the minor was “capable [of] knowing the wrongfulness of his conduct and
capable of committing a crime. Because of his age, he was 13 years old, it’s presumed he
does not.”3 The prosecution recalled Officer Haddad.
       Officer Haddad testified he conducted a Gladys R. inquiry to determine whether
the minor knew right from wrong. Officer Haddad asked the minor his age, what school
he attended, and his grade. The minor told Officer Haddad he was 13 and in eighth grade
at Burlingame Intermediate. When Officer Haddad asked the minor, “‘Do you know the
difference between doing something that is right and doing something that is wrong’” the
minor responded, “‘Yes.’” The prosecutor asked Officer Haddad the following
questions:
       “Q.    Did you ask the minor to tell you something that he knows is wrong to do?
       “A.    Yes.
       “Q.    How did he respond? . . .

3
       Under section 26, children under the age of 14 are incapable of committing a
crime “in the absence of clear proof that at the time of committing the act charged against
them, they knew its wrongfulness.” Juvenile courts must “consider whether a child
appreciates the wrongfulness of [his] conduct in determining whether the child should be
declared a ward under [Welfare and Institutions Code] section 602.” (In re Gladys R.
(1970) 1 Cal.3d 855, 858, fn. omitted (Gladys R.).)

                                             4
       “A.     He answered, ‘With graffiti.’
       “Q.     Did you ask him to tell you something that he knows is right to do?
       “A.     Yes.
       “Q.     What did he say?
       “A.     ‘Do graffiti on your own stuff.’
       “Q.     Did you ask him to tell you what happens to him at home if he does
something that is wrong?
       “A.     Yes.
       “Q.     What did he say?
       “A.     He said that he would be grounded.
       “Q.     Did you ask him to tell you at school what happens if he does something
that is wrong?
       “A.     Yes. He said that he would get detention.
       “Q.     Did you ask him if his mother or father punishes him for doing something
that they have told him is wrong to do?
       “A.     Yes.
       “Q.     Did you ask him questions to determine if he knew it was wrongful to
commit the acts?
       “A.     Yes.
       Officer Haddad Mirandized the minor and then questioned him about the June
2014 incident. The colloquy between the prosecutor and Officer Haddad continued:
       “Q.     Did you then begin to ask him about the offense?
       “A.     Yes.
       “Q.     What did you ask him?
       “A.     Well, I asked the general . . . what happened, what was going on. And he
denied taking any part in the graffiti. . . .
       “Q.     Did he tell you anything about [J.V.] running?
       “A.     Yes.
       “Q.     What did he tell you about that?


                                                5
       “A.    He said that he saw [J.V.] begin running, so he began running as well.
       “Q.    Did he tell you who was responsible for the graffiti?
       “A.    Yes. He said that [J.V.] was.
       “Q.    He told you that he did not do any tagging?
       “A.    Correct.
       “Q.    Did you ask him about the backpack containing the marker and rubber
gloves?
       “A.    Yes. . . .
       “Q.    What did he say? . . .
       “A.    He said that the pens and the glove and the tags were not his.
       “Q.    Did he tell you anything about the backpack, whether that was his or not?
       “A.    No. . . .
       “Q.    Did it appear to you that he understood your questions?
       “A.    Yes.
       Defense counsel argued Officer Haddad’s testimony did not establish the minor
knew “the difference between right and wrong.” The court denied the motion to dismiss,
noting “I disagree . . . It is all right to do graffiti on your own property. I think that does
demonstrate a clear distinction between right and wrong on his part since he
demonstrated an instance in which graffiti is allowable.”
       Defense counsel then moved to dismiss all three allegations for insufficient
evidence. The court granted the motion to dismiss Count 1, the vandalism charge, but
denied the motion to dismiss Count 2, concluding there was “sufficient evidence of the
various materials in the backpack indicating possession with intent” in violation of
section 594.2. The court also declined to dismiss Count 3, explaining there was sufficient
evidence the minor willfully and unlawfully resisted, delayed, or obstructed a peace
officer in violation of section 148.
Jurisdiction and Disposition
       At the conclusion of the jurisdictional hearing, the court found the minor
possessed graffiti materials with the intent to commit vandalism (§ 594.2, subd. (a)


                                               6
(Count 2)) and willfully and unlawfully resisted, delayed, or obstructed a peace officer (§
148, subd. (a)(1) (Count 3)). The court explained, “I will start with Count 1 which I have
stricken. [¶] However, I did accept the officers’ testimony. I do believe the officers’
testimony that [the minor] was around the scene of the vandalism that was occurring.
What’s unclear is exactly what his participation was. But he was there. He was around
it. He was doing some things. I think that’s part of the circumstances of the case.
Although, it doesn’t in my mind rise sufficiently to sustain Count 1 as I already indicated.
[¶] But that combined with the writing materials, the glove, the, . . . things that are in the
backpack, I think are circumstantial evidence of the purpose for which those things were
possessed. Yes, . . . they are certainly capable of innocent explanation, . . . but they are
also capable of being used improperly.
       “I don’t see anything that’s been brought to my attention to suggest that this was a
school backpack. There’s no reference to any school materials, school books, school
papers. [¶] It does appear to me . . . materials which were being used for the purpose of
committing vandalism. And, in fact, that’s supported by the circumstances under which
it all came to police officers’ attention where [the minor] . . . was involved to some level
in a situation that involved vandalism. Even if I’ve chosen not to sustain . . . that specific
charge, it still has circumstantial effect. [¶] So I think there is evidence to support Count 2
beyond a reasonable doubt.
       “As to Count 3, I don’t know that I even need to get to the whole struggle over the
backpack. Although, if I do, I would still accept the fact that [the minor] was resisting. . .
. But for the purposes of the trial, I don’t think we even need to reach that point
necessarily because his running is resisting. It was not an incidental running of a few feet
or a reaction for a second or two that he quickly moved past. He ran for what’s estimated
to be something in the range of a minute . . . give or take a few seconds. . . . But either
way, that’s a substantial amount of resisting. [¶] So while I actually think he continued to
resist over the backpack, the cleaner evidence, if you will, is the running, which in itself
establishes Count 3. Therefore, I sustain the petition as to Counts 2 and 3.”



                                               7
       The dispositional report recommended supervised probation (Welf. & Inst. Code,
§ 725, subd. (a)) with several conditions, including a condition the minor “not possess
any graffiti materials[,]” including “acid, spray paint cans, marker pens, ‘white-out,’ and
liquid shoe polish[.]” At the dispositional hearing, defense counsel objected to the
condition and asked that the minor “be allowed to [possess] whatever tools and supplies
they’re using” at home, at school, and at a weekend art program “under supervision.”
Counsel requested the minor “be allowed to possess . . . markers and paint, to continue
with his art[.]”
       In response, the court said it would allow the minor “to possess art supplies for
any program . . . under the supervision of school, parents, or a program approved by
probation[.]” The dispositional order placing the minor on probation for up to six months
provides in relevant part: “the Minor shall not possess any graffiti materials, including
but not limited to acid, spray cans, marker pens, ‘white out,’ and liquid shoe polish;
[m]ay use during art class under supervision [and] at home under parental supervision
and [at] art program[s] in San Francisco approved by probation.”
                                      DISCUSSION
                                             I.
             Substantial Evidence Supports the Finding the Minor Understood
                             the Wrongfulness of His Conduct
       Section 26 — which applies to Welfare and Institutions Code section 602
proceedings — establishes a presumption a minor under age of 14 is incapable of
committing a crime. (Gladys R., supra, 1 Cal.3d at p. 867; In re Joseph H. (2015) 237
Cal.App.4th 517, 538 (Joseph H.).) The prosecution may rebut the presumption with
clear and convincing evidence “the minor appreciated the wrongfulness of the conduct
when it was committed. [Citation.]” (Joseph H., supra, at p. 538, quoting In re Manuel
L. (1994) 7 Cal.4th 229, 232 (Manuel L.).) Knowledge of wrongfulness may not be
inferred from the commission of the act alone, but “‘the attendant circumstances of the
crime, such as its preparation, the particular method of its commission, and its
concealment’ may be considered. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334,


                                             8
378 (Lewis).) “In determining whether the minor knows of the wrongfulness of his
conduct, the court must often rely on circumstantial evidence such as the minor’s age,
experience, and understanding, as well as the circumstances of the offense. . . . ” (In re
James B. (2003) 109 Cal.App.4th 862, 872.) “‘[I]t is only reasonable to expect that
generally the older a child gets and the closer [he] approaches the age of 14, the more
likely it is that [he] appreciates the wrongfulness of [his] acts.’ [Citation.]” (Lewis,
supra, 26 Cal.4th at p. 378.)
       On appeal, we affirm a finding that a minor understood the wrongfulness of his
conduct if supported by substantial evidence. (In re James B., supra, 109 Cal.App.4th at
p. 872.) We “review the whole record in the light most favorable to the judgment and
affirm the trial court’s findings that the minor understood the wrongfulness of his conduct
if they are supported by ‘substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could have made the
requisite finding under the governing standard of proof. [Citations.]’ [Citations.] The
trier of fact, not the appellate court, must be convinced of the minor’s guilt, and if the
circumstances and reasonable inferences justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant reversal of the judgment. [Citation.]” (Ibid.)
       Here, the court found by clear and convincing evidence the minor knew the
wrongfulness of his conduct. Substantial evidence supports this finding. (Joseph H.,
supra, 237 Cal.App.4th at p. 540.) The minor admitted he knew the difference between
right and wrong, and that he would be punished for doing something wrong. He also
gave an example illustrating right and wrong: he told Officer Haddad it was “‘wrong’” to
do “‘graffiti.’” When asked for something “‘right to do[,]’” the minor responded, “‘Do
graffiti on your own stuff.’” There is no dispute the graffiti here — on the bench and
trash can — was not on the minor’s “own stuff.” Additionally, the minor fled from
Officer Altwer, blamed J.V. for the tagging, and disclaimed ownership of the pens, glove,
and slap tag.



                                              9
       This evidence compels the conclusion the minor appreciated the wrongfulness of
his actions. (Lewis, supra, 26 Cal.4th at p. 379 [the minor’s “flight from the scene and
his conflicting statements to detectives constitute clear proof [he] knew the wrongfulness
of his act”]; In re Richard T. (1985) 175 Cal.App.3d 248, 254, disapproved on another
ground in Manuel L., supra, 7 Cal.4th at p. 239, fn. 5 [minor’s attempt to shift blame
indicated his awareness of the wrongfulness of breaking into and stealing cars]; In re
Cindy E. (1978) 83 Cal.App.3d 393, 400 [the minor’s “attempt to shift some of the blame
to others and minimize her own involvement” suggested “she knew that what had
happened was wrong”].) Finally, at the time of the charged offenses, the minor was just
six months from his 14th birthday. As we have stated, “‘the older a child gets and the
closer [he] approaches the age of 14, the more likely it is that [he] appreciates the
wrongfulness of [his] acts.’ [Citation.]” (Lewis, supra, 26 Cal.4th at p. 378.) The court
properly determined the prosecution rebutted the presumption of incapacity in section 26.
       The minor’s reliance on In re Michael B. (1983) 149 Cal.App.3d 1073 (Michael
B.) does not alter our conclusion. In that case, the nine-year-old minor (defendant) shot
an older boy and was charged with involuntary manslaughter. (Id. at p. 1088.) The
defendant thought the gun was unloaded, pointed the gun at the victim and pulled the
trigger hoping only to scare him; the defendant also offered expert testimony that he did
not understand the consequences of threatening the victim with a gun, nor the concept of
the permanence of death. (Id. at pp. 1087-1088.) After the shooting, the defendant was
hospitalized because he was hysterical and incoherent. (Id. at p. 1078.) The appellate
court determined the prosecution did not demonstrate the defendant had the legal capacity
to commit the crime. (Id. at p. 1089.) Here and in contrast to Michael B., the minor was
almost 14 years old, and there was no evidence he did not understand the consequences
of his conduct. Unlike the defendant in Michael B., the minor was not hysterical and
incoherent after the incident — he was evasive, combative, and uncooperative with law
enforcement. Michael B. is inapposite.




                                             10
                                             II.
                     Sufficient Evidence Supports the Finding the Minor
                                    Violated Section 594.2
       The minor contends insufficient evidence supports the finding he possessed
graffiti materials with the intent to commit vandalism in violation of section 594.2,
subdivision (a), which prohibits the possession of a “felt tip marker, or any other marking
substance with the intent to commit vandalism or graffiti[.]” According to the minor, the
prosecution did not prove beyond a reasonable doubt he intended to use the items in his
backpack to commit vandalism. Circumstantial evidence may prove intent, and “connect
a defendant with the crime and to prove his guilt beyond a reasonable doubt.” (People v.
Bradford (1997) 15 Cal.4th 1229, 1329, internal quotation marks omitted; People v.
Lindberg (2008) 45 Cal.4th 1, 27.) We apply the substantial evidence standard to
evaluate the minor’s sufficiency of the evidence claim. (In re Manuel G. (1997) 16
Cal.4th 805, 822.)
       Here, sufficient evidence supports the finding the minor possessed the slap tag,
glove, and pens with the specific intent to commit graffiti in violation of section 594.2,
subdivision (a). Officer Altwer saw the minor and J.V. writing on a bench, which had
been tagged with the word “spit.” The officers found a white pen near the bench and
noticed a garbage can also had the word “spit” on it. The minor fled from the police and
refused to let the officers search his backpack. In the backpack — which the minor did
not deny owning — the officers found a slap tag used by “serial vandalizers” with the
word “spit” on it, as well as “practice drawings,” a glove, and two pens. The minor
implicated J.V. as the party responsible for the graffiti, creating the inference each boy
played a role in tagging the bench and the garbage can.4



4
         Although the court dismissed the vandalism charge (Count 1), it found the officers
credible and noted the minor was “around the scene of the vandalism that was occurring.
. . . [ ] he was there. He was around it. He was doing some things.” The court
determined the minor’s presence, combined with “the writing materials, the glove, . . . the
things that are in the backpack,” established his intent to engage in vandalism.

                                             11
       The minor’s reliance on a trio of cases —including In re Daniel G. (2004) 120
Cal.App.4th 824 (Daniel G.) — is misplaced. In that case, the juvenile court determined
the defendant violated a local ordinance prohibiting gang members from loitering in an
area “[w]ith the intent to publicize [their] dominance[.]” (Id. at p. 833.) The appellate
court reversed, concluding the defendant’s gang membership and his “mere presence at
the location” did not demonstrate he possessed the requisite intent. (Id. at p. 835.) This
is not a situation like the one in Daniel G. Here, the minor was not just “merely
presen[t]” at a particular location — he was seen writing on a bench, and graffiti
materials, a slap tag, and practice drawings were found in his backpack.
       Relying on People v. Stanley (1995) 10 Cal.4th 764 (Stanley), the minor claims the
court should have inferred “innocuous meaning” from the items in his backpack. In
Stanley, our high court held “‘Although it is the duty of the jury to acquit a defendant if it
finds that circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the appellate court
which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’ “‘If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.’” [Citations.]’ [Citation.]” (Id. at pp. 792-
793, emphasis added.) The minor’s reliance on Stanley is misplaced because the
circumstances here reasonably justify the juvenile court’s findings.
       Nor did the court improperly shift the burden to the minor to prove he used the
backpack “for school purposes.” The court determined the prosecution established Count
2 beyond a reasonable doubt; it’s observation regarding the absence of evidence the
materials in the backpack were for academics described the state of the evidence and did
not improperly shift the burden of proof. (People v. Frye (1998) 18 Cal.4th 894, 958,
disapproved on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390 [trial
court’s “reference to ‘innocence’ did not shift any burden of proof”].)




                                              12
                                            III.
           Sufficient Evidence Supports the Finding the Minor Resisted Arrest
       The minor contends the resisting arrest finding must be reversed because there was
insufficient evidence he “willfully delayed” the police officers. Section 148 makes it a
misdemeanor to willfully resist, delay, or obstruct a peace officer engaged in the
performance or attempted performance of his duties. (§ 148, subd. (a)(1).) The statute
“‘is most often applied to the physical acts of a defendant. [Citation.] For example,
physical resistance, hiding, or running away from a police officer have been found to
violate section 148. [Citations.]’” (In re Amanda A. (2015) 242 Cal.App.4th 537, 546
(Amanda A.).) Here, there was substantial evidence the minor ran away from Officer
Altwer. The minor ignored Officer Altwer’s command to “stay there” and fled for
approximately one to two minutes, covering “several hundred feet.” As Officer Altwer
pursued on his motorcycle, the minor “constantly look[ed] back to see” whether Officer
Altwer was “getting closer[,]” creating an inference the minor heard Officer Altwer’s
command, and ignored it. This flight delayed Officer Altwer in the “‘performance of his
official duty, [and] violated’” section 148. (In re Gregory S. (1980) 112 Cal.App.3d 764,
778 [“flight and concealment” violated section 148].)
       There is also substantial evidence the minor violated section 148 by physically
resisting the officers. (Amanda A., supra, 242 Cal.App.4th at p. 546.) He refused to
submit to a pat search, swore at Officer Altwer, and positioned his body to make it
difficult for Officer Altwer to remove the backpack. When the officers grabbed the
shoulder strap and the minor’s arms, he became aggressive, belligerent, and loud, and
engaged in a tug-of-war with the officers, resisting and struggling with them. The
officers were able to handcuff the minor only after bringing him to the ground. People v.
Quiroga (1993) 16 Cal.App.4th 961 — which concerned the defendant’s refusal to
cooperate with law enforcement officers and disclose his identity — does not assist the
minor. Substantial evidence supports the finding the minor violated section 148,
subdivision (a)(1).



                                            13
                                            IV.
            The “Graffiti Materials” Probation Condition Must Be Modified
       As relevant here, the dispositional order provides: “the Minor shall not possess
any graffiti materials, including but not limited to acid, spray cans, marker pens, ‘white
out’ and liquid shoe polish; [m]ay use during art class under supervision [and] at home
under parental supervision and [at] art program[s] in San Francisco approved by
probation.” The minor contends this probation condition is unconstitutional because it
lacks a knowledge requirement. According to the minor, absent a knowledge
requirement, he could be found to have violated the condition even if unaware of the
presence or character of the prohibited items.
       We agree.5 (In re Sheena K. (2007) 40 Cal.4th 875, 887-888; People v. Freitas
(2009) 179 Cal.App.4th 747, 752-753.) We modify the probation condition as follows:
“The minor is not to knowingly use or possess graffiti items, including but not limited to
acid, spray cans, marker pens, ‘white out’ and liquid shoe polish, with intent to commit
vandalism or graffiti. The minor may use these items in art class under supervision, at
home under parental supervision, and during art programs in San Francisco approved by
the probation department.” The inclusion of knowledge and intent elements gives the
minor notice of precisely what is prohibited: he may possess or use certain materials —
including markers and white out under certain circumstances — but not with the intent to
commit vandalism or graffiti.
                                      DISPOSITION
       The probation condition at issue is modified to provide: “The minor is not to
knowingly use or possess graffiti items, including but not limited to acid, spray cans,
marker pens, ‘white out’ and liquid shoe polish, with intent to commit vandalism or
graffiti. The minor may use these items in art class under supervision, at home under


5
       We note the California Supreme Court is considering whether a probation
condition prohibiting a defendant from possessing firearms is unconstitutionally vague
without an explicit knowledge requirement. (People v. Hall, review granted June 19,
2015, S227193.)

                                             14
parental supervision, and during art programs in San Francisco approved by the probation
department.” In all other respects, the juvenile court’s jurisdictional and dispositional
orders are affirmed.




                                             15
                                 _________________________
                                 Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.




A145354


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