Filed 6/30/15 In re Brian N. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


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


THE PEOPLE,
                                                                       G049573
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL048530)
         v.
                                                                       OPINION
BRIAN N.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Cheryl
L. Leininger, Judge. Affirmed as modified.
                   Steven A. Brody, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Adrianne
S. Denault and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant challenges two of the conditions of his probation as being
unconstitutionally vague and overbroad. We agree the conditions must be modified to
include an explicit knowledge requirement and recognize appellant’s right of self-
defense. In all other respects, we affirm the judgment.
                    FACTS AND PROCEDURAL BACKGROUND
              Appellant and another juvenile physically assaulted a fellow student while
he was walking home from school. They also stole the victim’s cell phone during the
attack. Following a contested hearing, the juvenile court found true allegations appellant
committed second degree robbery and assault with force likely to cause great bodily
injury. It then declared appellant a ward of the court, ordered him to serve 150 days in
custody, and placed him on probation subject to various terms and conditions.
              Among other things, the court told appellant, “You are not to possess
weapons of any description including firearms (operable or inoperable), BB devices,
dirks, daggers, knives of any description, nun chucks, and martial arts weaponry. You
are not to possess ammunition or weapon replicas. You are not to involve yourself in
activities in which weapons are used including but not limited to hunting and target
shooting. You are not to remain in any vehicle wherein anyone possesses a weapon,
ammunition or weapon replica.” In addition, the court told appellant he was not allowed
to “possess a beeper, pager, cellular phone or any other cordless or otherwise wireless
communication device.”
                                      DISCUSSION
              Appellant contends these conditions are vague and overbroad because they
do not contain an explicit knowledge requirement and they do not allow him to possess a
weapon in self-defense. We agree.
              To survive a vagueness challenge, probation terms “‘must be sufficiently
precise for the probationer to know what is being required of him, and for the court to
determine whether the condition has been violated.’” (In re Sheena K. (2007) 40 Cal.4th

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875, 890.) “In deciding the adequacy of any notice afforded those bound by a legal
restriction, we are guided by the principles that ‘abstract legal commands must be applied
in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the
language used must have ‘“reasonable specificity.”’ [Citation.]” (Ibid.) “[T]he law has
no legitimate interest in punishing an innocent citizen who has no knowledge of the
presence of a [prohibited item].” (People v. Freitas (2009) 179 Cal.App.4th 747, 752
[modifying probation condition to prohibit knowing possession of a firearm or
ammunition].)
              The Attorney General does not dispute that, on their face, the subject
probation conditions have no scienter requirement and could be violated if appellant
unwittingly possessed one of the proscribed items. For example, if appellant carried a
friend’s backpack to school unaware it contained a knife or a cell phone, he would be in
violation of probation. Although the state urges us to simply imply a knowledge
requirement into the conditions, as some courts have done (see, e.g., People v. Rodriguez
(2013) 222 Cal.App.4th 578, 589-594; People v. Moore (2012) 211 Cal.App.4th 1179,
1183-1189; People v. Patel (2011) 196 Cal.App.4th 956, 960), we will adhere to our
standard practice of modifying the subject conditions to contain an express knowledge
requirement. (People v. Moses (2011) 199 Cal.App.4th 374, 381, following In re Sheena
K., supra, 40 Cal.4th at pp. 891-893; accord, People v. Pirali (2013) 217 Cal.App.4th
1341, 1351.) That is the best way to prevent arbitrary law enforcement and ensure
probationers know what conduct is expected of them. (Ibid.)
              Turning to the issue of self-defense, we must remember that while the
government may legitimately restrict a probationer’s constitutional rights, any such
restriction must be “closely tailor[ed to] the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad. [Citation.]” (In re Sheena K., supra, 40
Cal.4th at p. 890.) In this case, the obvious purpose of the condition prohibiting appellant
from possessing a weapon is to protect public safety. However, that interest is not served

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by precluding appellant from using a weapon in lawful self-defense. Therefore, we will
modify appellant’s probation to allow for this constitutionally-recognized defense. (See
Cal. Const., art I, § 1.)
                                       DISPOSITION
               The condition of appellant’s probation regarding weaponry is modified to
state that, except when justified by the laws of self-defense, appellant shall not knowingly
possess any weapon, ammunition or weapon replica; participate in any activity in which
he knows weapons are used; or remain in any vehicle if he knows a person therein has a
weapon, ammunition or a weapon replica.
               The probation condition regarding wireless devices is modified to state
appellant shall not knowingly possess a beeper, pager, cellular phone or any other
cordless or wireless communication device.
               In all other respects, the judgment is affirmed.




                                                   BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.




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