In re Z.B. CA6 ( 2014 )

Filed 5/23/14 In re Z.B. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
SIXTH APPELLATE DISTRICT
In re Z.B., a Person Coming Under the H040103
Juvenile Court Law. (Monterey County
Super. Ct. No. J43638)
THE PEOPLE,
Plaintiff and Respondent,
v.
Z.B.,
Defendant and Appellant.
Three separate petitions were sustained in 2011 alleging that Z.B., a minor, came
within the provisions of Welfare and Institutions Code section 602, and had committed
acts which would have constituted four separate felonies had they been committed by an
adult, namely three counts of robbery (Pen. Code § 211),1 and one count of attempted
robbery (§§ 211/664). The court declared the minor to be a ward of the court, determined
his maximum term of confinement to be 20 years and 6 months, and committed him to
the Department of Juvenile Justice (DJJ). Shortly after the minor’s release on probation
in July 2013, the Monterey County District Attorney filed a petition alleging seven
probation violations by the minor; he admitted four of them. In August 2013, the court
1
All further statutory references are to the Penal Code unless otherwise stated.
ordered that the minor continue to be a ward of the court on probation and imposed
additional terms and conditions beyond those previously in place.
On appeal, the minor challenges a probation condition prohibiting his access to,
use of, or possession of police scanners or other surveillance equipment. He claims that
the condition (1) is vague and does not adequately notify him as to what is prohibited;
(2) is overly broad and prohibits constitutionally protected activity; and (3) is
unreasonable as applied to him because it would have the effect of requiring him to move
out of his home because of living conditions over which he has no control.
We conclude that the probation condition is not unreasonable as applied to the
minor, but that it should be modified to specifically include a knowledge requirement.
We will therefore order the condition modified as indicated below. As so modified, we
will affirm the August 28, 2013 order.
FACTS
On August 10, 2013, eight probation officers conducted a probation compliance
check at the home of the minor, who had been adjudged a ward of the court in 2011.2 A
can of beer, cold to the touch, was found in the minor’s bedroom. The minor admitted
that he had been drinking the beverage. A cell phone was also found in the bedroom.
The minor had set up a Facebook account through the cell phone, and one of the
probation officers observed photographs on that account of the minor and three other
people; the minor indicated that the three other people “were Norteño dropouts.” One of
the photographs showed one of the individuals displaying a gang sign. The probation
officers also found in the minor’s bedroom and in a hall closet various indicia of gang
membership: four San Francisco baseball caps, a pair of red and black basketball shorts,
2
At the time the court issued the order that is the subject of the challenge in this
appeal, Z.B. was 20 years of age. Because this matter arises out of delinquency
proceedings instituted under section 602 of the Welfare and Institutions Code, we will
nevertheless refer to Z.B. as “the minor.”
a white scarf with a San Francisco 49ers emblem, a maroon beanie, a red A’s baseball
cap, an Astros cap, a black and red shirt, and a black and red jacket.
Probation officers also found a loaded 16-gauge shotgun in a closet without doors
in the bedroom of the minor’s mother, which bedroom is adjacent to the minor’s
bedroom. In a dresser in his mother’s bedroom, officers found multiple rounds of
ammunition. And officers noticed a surveillance camera in a birdhouse positioned to
view the front of the house; the monitor to the camera was located in the bedroom of the
minor’s mother.
PROCEDURAL BACKGROUND
In May 2011, the Monterey County District Attorney filed a petition with the
juvenile court under Welfare and Institutions Code section 602, subdivision (a), alleging
that the minor had committed an offense that, had it been committed by an adult, would
have been a felony, namely, robbery (§ 211). It was also alleged that the robbery was
committed by the minor through the personal use of a firearm (§ 12022.5, subd. (a)(1)).
In June 2011, the Monterey County District Attorney filed a second petition with the
juvenile court, alleging that the minor had committed two offenses that, had they been
committed by an adult, would have been felonies, namely, two counts of robbery (§ 211),
both of which occurred on June 15, 2011. It was alleged further that one of the robberies
was committed by the minor through the personal use of a deadly and dangerous weapon,
a knife (§ 12022, subd. (b)(1)); and that in committing the other robbery, the minor
personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). The
Monterey County District Attorney filed a third petition involving the minor in October
2011, alleging an additional count of attempted robbery (§§ 211/664).
The juvenile court sustained the three petitions. On November 4, 2011, the minor
was declared a ward of the court. His maximum term of confinement was determined to
be 20 years and 6 months, and he was committed to the DJJ. On July 25, 2013, upon the
minor’s release from DJJ, the court ordered that he be returned home on probation with
various terms and conditions, including conditions concerning the possession and use of
drugs, alcohol, weapons, and ammunition. The court also imposed gang conditions.
A petition was filed less than three weeks later by the minor’s probation officer,
alleging that the minor, on August 10, 2013, had violated the terms of his probation by
(A1)3 being in possession of various articles of clothing associated with criminal street
gangs; (A2) associating with other gang members displaying gang signs, as viewed in a
picture posted on Facebook; (A3) possessing alcohol; (A4) admittedly consuming
alcohol; (A5) possessing a loaded 16-gauge shotgun; (A6) possessing ammunition; and
(A7) failing to obey all laws, in that he was arrested for being a ward in possession of a
firearm (§ 29820, subd. (b)) and for being a ward in possession of ammunition (§ 30305,
subd. (a)(1)). At a hearing on August 14, 2013, the minor admitted the violations alleged
as A1, A2, A3, and A4. The remaining allegations were dismissed by the court.
On August 28, 2013, the court ordered that the minor continue as a ward of the
court on probation with modified and additional terms and conditions. The minor filed a
timely notice of appeal from that order.
DISCUSSION
I. Probation Conditions
A juvenile court is empowered to impose upon a ward placed on probation “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.” (Welf.
& Inst. Code, § 730, subd. (b).) “The juvenile court has wide discretion to select
appropriate conditions and may impose ‘ “any reasonable condition that is ‘fitting and
proper to the end that justice may be done and the reformation and rehabilitation of the
ward enhanced.’ ” ’ [Citations.]” (In re Sheena K. (2007) 40 Cal. 4th 875, 889 (Sheena
3
The seven probation violations alleged in the petition were designated as “(A1)”
through “(A7).”
K.).) This discretion is broader with respect to the imposition of probation conditions for
juveniles than it is for adult offenders. (In re E.O. (2010) 188 Cal. App. 4th 1149, 1152;
see also Sheena K., at p. 889 [probation condition that may be unconstitutional for adult
offender may be permissible for minor under juvenile court’s supervision].)
Both adult offenders and juveniles may challenge a probation condition on the
ground that it is either unconstitutionally vague or overly broad. (See Sheena K., supra,
40 Cal.4th at p. 887.) As we have explained: “Although the two objections are often
mentioned in the same breath, they are conceptually quite distinct. A restriction is
unconstitutionally vague if it is not ‘ “sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated.” ’ [Citation.] A restriction failing this test does not give adequate notice—‘fair
warning’—of the conduct proscribed. [Citations.] A restriction is unconstitutionally
overbroad, on the other hand, if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not
‘tailored carefully and reasonably related to the compelling state interest in reformation
and rehabilitation.’ [Citations.] The essential question in an overbreadth challenge is the
closeness of the fit between the legitimate purpose of the restriction and the burden it
imposes on the defendant’s constitutional rights—bearing in mind, of course, that
perfection in such matters is impossible, and that practical necessity will justify some
infringement.” (In re E.O., supra, 188 Cal.App.4th at p. 1153; see also In re Victor L.
(2010) 182 Cal. App. 4th 902, 910.)
II. Police Scanner and Surveillance Equipment Condition
The minor challenges a probation condition imposed by the court prohibiting the
possession of, access to, or use of police scanners or other surveillance equipment. That
condition reads: “Not have access to, use, or possess any police scanner device or
surveillance equipment on your person, vehicle, place of residence, or personal effects.”
The minor argues that the condition is unconstitutionally vague and overly broad,4 and is
unreasonable as applied to his circumstances. His positions regarding vagueness and
overbreadth consist of the claims that (1) the phrase “access to” and “surveillance
equipment” are ill-defined and imprecise; and (2) the condition does not include a
requirement that the minor knowingly possesses or have access to the prohibited
equipment. He contends that the condition is unreasonable “because it would have the
effect of forcing appellant out of his home for conditions in the home over which he has
no control.”
The Attorney General responds that the probation condition is not vague in any
respect and is reasonable. She argues that the probation condition therefore requires no
modification.
A. Vagueness and Overbreadth Challenges
1. Defined Terms
“A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him [or her], and for the court to determine whether the condition has
been violated,’ if it is to withstand a [constitutional] challenge on the ground of
vagueness. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) Where the condition
limits constitutional rights, it must be “closely tailor[ed] . . . to the purpose of the
condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]” (Ibid.)
Thus, courts may require that vague or overly broad terms in probation conditions be
modified or narrowed to satisfy constitutional standards. (See, e.g., People v. Leon
4
The minor did not raise these constitutional challenges of vagueness and
overbreadth below. But because his claim is that the probation condition is
unconstitutional, it is cognizable on appeal. (Sheena K., supra, 40 Cal.4th at pp. 887-
889; see also People v. Turner (2007) 155 Cal. App. 4th 1432, 1435 (Turner)
[constitutional challenges to probation conditions that they are facially overly broad and
vague present pure questions of law that are not forfeited by appellant’s failure to raise
them at trial].)
(2010) 181 Cal. App. 4th 943, 952 (Leon) [prohibition that defendant not “ ‘frequent’ ”
areas where gang activity occurs was “unconstitutionally vague, because it is both
obscure and has multiple meanings”]; In re White (1979) 97 Cal. App. 3d 141, 147-148
[probation condition containing blanket restriction against being present in specified area
of city at any time must be narrowed so that right to travel is not unduly restricted].)
The minor argues that the phrase “access to” is vague and overly broad because
the term “ ‘access’ can refer to physical proximity with or without the right to control an
object.”
“ ‘Access’ ” is defined as “1 the act of coming toward or near; approach 2 a way
or means of approaching, getting, using, etc. 3 the right to enter, approach, or use;
admittance . . .” (Webster’s New College Dict. (4th ed. 2008) p. 8, col. 1.) The
probation condition, including the challenged term “access,” must be considered in the
context of this case. (See People ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1116
(Acuna) [“in evaluating challenges based on claims of vagueness, . . . ‘[t]he particular
context is all important’ ”].) Here, during an August 10, 2013 probation search of the
minor’s home, officers found, among other things, a surveillance camera in a birdhouse
positioned to view the front of the house; the monitor for the camera was located in the
bedroom of the minor’s mother. The minor’s probation officer noted that “surveillance
equipment is a safety issue for any officer entering the home[,] especially if weapons and
ammunition were located at the residence during the last contact.” A loaded shotgun and
ammunition were, in fact, found in the home during the same probation search. And one
of the minor’s prior adjudications involved a robbery with the personal use of a firearm.
In this context, a prohibition of the minor’s having “access to” a “police scanner
device or surveillance equipment on [his] person, vehicle, place of residence, or personal
effects” is not vague or overly broad. It is intended to prevent the minor’s ability to
detect in advance through police scanners or surveillance equipment the presence of
peace officers performing their lawful duties, including probation compliance checks.
We therefore disagree with the minor’s premise that the phrase “access to” must be
construed as prohibiting the minor’s physical proximity to such items without his right to
control them.
The minor also contends that the term “surveillance equipment” is ill-defined and
thus fails to give adequate notice to him as to what items he may or may not possess.
He contends the “provision is broad enough to bar anything which could potentially be
used for ‘surveillance,’ including commonly used items such as cellular phones,
computers, tablets, and cameras.”
The challenged term must again be considered in the context of this case (Acuna,
supra, 14 Cal.4th at p. 1116): The presence of a security monitoring system connected to
a computer inside the minor’s home was a circumstance that presented an officer safety
issue. But a relatively innocuous article such as an iPad could arguably be considered
“surveillance equipment,” even if the iPad owner intended only to use it for sending and
receiving emails or for other non-surveillance purposes. We will therefore order that the
probation condition be modified to include a scienter element to address any vagueness
with respect to this term.
2. Knowledge Requirement
The minor contends the probation condition is constitutionally defective because it
does not include a requirement that the minor “knowingly have access to, use, or possess
any police scanner device or surveillance equipment . . . .” (Italics added.)
In considering a condition prohibiting a minor from associating with “ ‘anyone
disapproved of by probation,’ ” our high court in Sheena K reasoned that the foundation
of a vagueness challenge is the due process concept of “ ‘fair warning.’ ” (Sheena K.,
supra, 40 Cal.4th at pp. 889–890.) The vagueness doctrine “bars enforcement of ‘ “a
statute which either forbids or requires the doing of an act in terms so vague that men [or
women] of common intelligence must necessarily guess at its meaning and differ as to its
application.” [Citation.]’ [Citation.]” (Id. at p. 890.) Our high court concluded that, in
the absence of “an express requirement of knowledge,” the challenged probation
condition was unconstitutionally vague because it did not give advance notice to the
minor of the persons with whom she was prohibited from associating. (Id. at p. 891; see
also Acuna, supra, 14 Cal.4th at p. 1117 [indicating that trial court, to the extent scienter
element was not fairly implied, should insert knowledge requirement in injunction against
associating with gang members].)
Thus, as we have observed: “In a variety of contexts, . . . California appellate
courts have found probation conditions to be unconstitutionally vague or overbroad when
they do not require the probationer to have knowledge of the prohibited conduct or
circumstances.” (People v. Kim (2011) 193 Cal. App. 4th 836, 843 (Kim).) In a host of
cases, probation conditions have been invalidated where they failed to include language
requiring the probationer’s knowing violation of the condition. These cases have
involved probation conditions containing prohibitions against (1) associating with felons,
ex-felons, or narcotics dealers or users (People v. Garcia (1993) 19 Cal. App. 4th 97, 102);
(2) associating with gang members (Leon, supra, 181 Cal.App.4th at pp. 949-950; In re
Vincent G. (2008) 162 Cal. App. 4th 238, 245; In re Justin S. (2001) 93 Cal. App. 4th 811,
816; People v. Lopez (1998) 66 Cal. App. 4th 615, 628); (3) associating with probationers,
parolees, or gang members (In re H.C. (2009) 175 Cal. App. 4th 1067, 1071);
(4) associating with persons under 18 (Turner, supra, 155 Cal.App.4th at p. 1437);
(5) associating with persons disapproved of by the probation officer or the minor’s parent
(In re Victor L. supra, 182 Cal.App.4th at p. 911); (6) frequenting areas of gang-related
activity (Leon, at p. 952; In re H.C., at p. 1072; In re Vincent G., at pp. 245, 247);
(7) frequenting areas where weapons, firearms, or ammunition exist (In re Victor L.,
at pp. 912-913); (8) possessing stolen property, or possessing firearms or ammunition
(People v. Freitas (2009) 179 Cal. App. 4th 747, 751-752 (Freitas)); (9) frequenting areas
where sexually explicit material is viewed or sold (People v. Moses (2011)
199 Cal. App. 4th 374, 377 (Moses)); (10) coming into contact with the victim (People v.
Petty (2013) 213 Cal. App. 4th 1410, 1425); and (11) possessing, wearing or displaying
gang-affiliated material (Leon, at p. 951; In re Vincent G., at p. 245).
Here, the probation condition prohibiting access to, use of, or possession of police
scanners or surveillance equipment—like the probation conditions in the many cases
cited in the previous paragraph that courts found to be infirm—has no express
requirement that the minor have knowledge of the presence of such equipment. Thus, as
the condition is worded, the minor’s unknowing access to a police scanner or surveillance
equipment could constitute a probation violation. Like probation conditions that prohibit
possession of gang paraphernalia without an express knowledge requirement (Leon,
supra, 181 Cal.App.4th at p. 951; In re Vincent G., supra, 162 Cal.App.4th at p. 245), the
prohibition against having access to or possessing police scanners or surveillance
equipment without inclusion of an element that the minor knowingly do so is
constitutionally infirm. (Sheena K., supra, 40 Cal.4th at p. 891.)
The Attorney General argues, however, that under a recent decision by another
panel of this court, the scienter element may be implied. (See People v. Rodriguez (2013)
222 Cal. App. 4th 578 (Rodriguez).) The Attorney General’s reliance on Rodriguez is
misplaced.
In Rodriguez, the defendant challenged, among others, three probation conditions
that did not contain express knowledge elements. The conditions concerned use and
possession of alcohol and drugs; possession and trafficking of firearms, weapons, and
ammunition (collectively, weapons); and an order to stay at least 100 yards from the
victim’s person, car, work or residence. (Rodriguez, supra, 222 Cal.App.4th at pp. 583-
584.) As to the weapons condition, Rodriguez held that because certain criminal statutes
prohibiting weapons possession, according to case law, had implicit scienter elements,
the weapons probation condition contained an implicit scienter element and due process
did not require an explicit knowledge clause. (Id. at p. 591.) The court held that as to the
alcohol and drugs condition, the scienter element was implied as the condition concerned
controlled substances because, again, case law had construed criminal statutes
proscribing possession of controlled substances “as including implicit knowledge
elements.” (Id. at p. 593.) But as the condition concerned alcohol and “intoxicants,”
Rodriguez concluded that “the addition of an express knowledge requirement will
eliminate any potential for vagueness or overbreadth in applying the condition.” (Id. at
p. 594.) Lastly, as to the stay-away condition, Rodriguez noted that it was “a form of
prohibiting association.” (Ibid.) It held that the trial court could appropriately modify the
condition to provide that the “defendant not knowingly come within 100 yards of a known
or identified victim.” (Id. at p. 595, italics added.) The court observed: “[N]othing in
the circumstances of the crime indicates defendant knows or reasonably should know the
car owner’s name, where she resides or works, or what other vehicles she may operate.”
(Ibid.)
Rodriguez does not compel the conclusion that the probation condition we are
concerned with here has an implied scienter element. The probation condition in this
case involves use of, access to, and possession of specific items of property which are
otherwise legal and for which there exist no statutes proscribing their possession.5 And
the condition, to the extent that it restricts the ownership and possession of property,
impacts the constitutional right to possess property. (Cal. Const., art. I, § 1; see Freitas,
supra, 179 Cal.App.4th at p. 751.) Thus, the probation condition here is unlike the
conditions in Rodriguez for which it was held that knowledge was implied. Unlike here,
the Rodriguez probation conditions did not impair constitutional rights; they concerned
5
We acknowledge, however, that there is at least one statute that criminalizes a
specific use of a police scanner. (See § 636.5 [making it a misdemeanor for an
unauthorized person to “intercept[] any public safety radio service communication, by
use of a scanner or any other means” to assist the perpetrator of the crime in committing
the offense or evading law enforcement].)
possession of weapons and controlled substances, matters for which there were existing
criminal statutes construed to have implied scienter as an element.6
Moreover, we acknowledge that the Second District, Division Three, recently
held—in reasoning that differed from the basis for the holding in Rodriguez—that a
probation condition prohibiting ownership, use, or possession of dangerous or deadly
weapons contained an implicit knowledge requirement. (See People v. Moore (2012)
211 Cal. App. 4th 1179, 1185-1189 (Moore).) The court reasoned in part: “Moore’s
concern is not that he is unable to discern what conduct is prohibited. Instead, he worries
that he might accidentally possess an item he would readily recognize as prohibited by
the probation condition. Under these circumstances, the requirement that a violation of
the weapons condition must be willful and knowing adequately protects him from being
punished for innocent possession. The addition of an express knowledge requirement
would add little or nothing to the probation condition.” (Id. at p. 1188.) The Moore court
distinguished the probation condition it was considering from the one in Sheena K.,
supra, 40 Cal. 4th 875, holding that “[u]nlike in Sheena K., the weapons condition here
does notify Moore in advance regarding what conduct is prohibited, and is not
unconstitutionally vague.” (Moore, at p. 1189, original italics.) The Moore court
concluded: “the ‘function served by an express knowledge requirement should not be
extended beyond its logical limits.’ (People v. Kim, supra, 193 Cal.App.4th at p. 847.)
Accordingly, because the probation condition, as written, is sufficiently precise to alert
Moore to what conduct is prohibited and guard against arbitrary enforcement; because a
knowledge requirement is implied in the condition; and because Moore cannot be found
6
As noted in Rodriguez, because the defendant there was a convicted felon, he
was prohibited from owning, receiving, or possessing firearms or ammunition.
(Rodriguez, supra, 222 Cal.App.4th at p. 590; see also Kim, supra, 193 Cal.App.4th at
p. 847 [“a convicted felon has no constitutional right to bear arms”].)
to have violated probation absent knowing possession [citation], we conclude express
modification of the probation condition is unnecessary.” (Ibid., fn. omitted.)
We respectfully disagree with the reasoning in Moore to the extent it counsels that
a scienter element should be implied in any probation condition proscribing possession of
some particular item because the probationer “cannot be found to have violated probation
absent knowing possession.” (Moore, supra, 211 Cal.App.4th at p. 1189.) Instead, we
adhere to the general proposition, as reiterated in Sheena K., supra, 40 Cal.4th at page
891, that, particularly where the probation condition impacts constitutionally protected
rights, in the absence of “an express requirement of knowledge,” the challenged
probation condition may be determined to be unconstitutionally vague.
Accordingly, we will order the probation condition modified to include a specific
knowledge requirement. (Sheena K., supra, 40 Cal.4th at p. 892 [“modification to
impose an explicit knowledge requirement is necessary to render [a probation] condition
constitutional”].) The probation condition will thus be modified to read: “You are not to
knowingly have access to, use, or possess any police scanner device or surveillance
equipment that you intend to use to monitor the police, whether on your person, in your
vehicle, at your place of residence, or among your personal effects.”7
B. Reasonableness Challenge
The minor claims that the probation condition, to the extent it prohibits access to,
use of, or possession of surveillance equipment, is unreasonable as to his circumstances.
He contends that the condition is (1) unrelated to the offenses that were the subject of his
7
We acknowledge that the Third District Court of Appeal, expressing concern
over the repetitive nature of constitutional challenges to probation conditions and their
drain upon judicial resources, has indicated that it would not entertain future challenges
to probation conditions based upon their failure to include an express knowledge
requirement. (See People v. Patel (2011) 196 Cal. App. 4th 956, 960.) We decline to
follow the Third District’s approach. (See Moses, supra, 199 Cal.App.4th at pp. 380-381
[declining to follow Patel, adding knowledge requirement to probation condition].)
prior adjudications; (2) is unrelated to future criminality; (3) “cannot possibly serve any
reasonable rehabilitative purpose”; and (4) “is especially prejudicial as applied to [him].”
The minor, in order to assert this appellate challenge to the reasonableness of the
probation condition, was required to have raised it below. (Sheena K., supra, 40 Cal.4th
at pp. 882, 883, fn. 4.) Because he did in fact object to the condition on the basis that it
was unreasonable, he may assert it on appeal here.
As our Supreme Court has explained: “In granting probation, courts have broad
discretion to impose conditions to foster rehabilitation and to protect public safety
pursuant to Penal Code section 1203. 1. [Citations.] ‘The court may impose and
require . . . [such] reasonable conditions[] as it may determine are fitting and proper to
the end that justice may be done, that amends may be made to society for the breach of
the law, for any injury done to any person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the probationer.’ [Citation.]”
(People v. Carbajal (1995) 10 Cal. 4th 1114, 1120-1121, quoting § 1203.1, subd. (j).)
In order for a probation condition to be determined invalid, it must satisfy the
three-part test enunciated by our high court in People v. Lent (1975) 15 Cal. 3d 481
(Lent), namely, the probation condition must “ ‘(1) [have] no relationship to the crime of
which the offender was convicted, (2) relate[] to conduct which is not in itself criminal,
and (3) require[] or forbid[] conduct which is not reasonably related to future
criminality . . . .’ [Citation.] . . . Conversely, a condition of probation which requires or
forbids conduct which is not itself criminal is valid if that conduct is reasonably related to
the crime of which the defendant was convicted or to future criminality.” (Id. at p. 486,
fn. omitted.) The court in Lent made it clear that each of these three elements must be
met in order to invalidate the probation condition. (Id. at p. 486, fn. 1 [noting that the
Supreme Court in In re Bushman (1970) 1 Cal. 3d 767, 777, had inadvertently used the
disjunctive instead of the conjunctive in describing the three-part test].)
As acknowledged by the minor, we review the propriety of the imposition of a
probation condition for abuse of discretion. “The Legislature has placed in trial judges a
broad discretion in the sentencing process, including the determination as to whether
probation is appropriate and, if so, the conditions thereof.” (Lent, supra, 15 Cal.3d at
p. 486; see also People v. Welch (1993) 5 Cal. 4th 228, 233.)
The minor cannot establish each aspect of the conjunctive three-part Lent test as
required to invalidate the probation condition. We agree with the minor that two of the
elements are satisfied. The condition prohibiting use of, possession of, and access to
police scanners and other surveillance equipment appears to “ ‘(1) [have] no relationship
to the crime of which the offender was convicted, [and] (2) relate[] to conduct which is
not in itself criminal.’ ” (Lent, supra, 15 Cal.3d at p. 486.) But we do not agree that the
minor satisfied the third Lent element, that the probation condition “ ‘requires or forbids
conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (Ibid.)
We note that the minor’s prior adjudications include a robbery with the personal
use of a firearm, and another robbery with the personal use of a knife. The minor thus
has a predilection toward possession and use of illegal, dangerous and deadly weapons.
Further, it must be emphasized that in the August 2013 compliance check, two of the
several probation violations discovered involved the presence of both a loaded shotgun
and ammunition at the minor’s home. Therefore, the justification for the proscription
against police scanners or other surveillance equipment, as stated by the minor’s
probation officer in both her report and at the hearing—that the condition was necessary
to promote officer safety with respect to any future compliance checks or other visits to
the home—was amply supported by the record. The condition therefore is reasonably
related to future criminality.
With due respect for the statement by the minor’s mother at the hearing that the
surveillance equipment was needed for her home due to prior robberies, this reason does
not trump the officer safety concerns that make the condition an appropriate one. Nor is
the probation condition unreasonable because of the possibility that the minor (now two
months shy of 21) may be compelled to move from his mother’s home if she continues to
maintain the surveillance equipment. Thus, the court did not abuse its discretion in
imposing the probation condition under the circumstances presented here.
DISPOSITION
Probation condition number 4 of the August 28, 2013 order is modified to read as
follows: “You are not to knowingly have access to, use, or possess any police scanner
device or surveillance equipment that you intend to use to monitor the police, whether on
your person, in your vehicle, at your place of residence, or among your personal effects.”
As so modified, the August 28, 2013 order is affirmed.
Márquez, J.
WE CONCUR:
Rushing, P.J.
Premo, J.