In re K.X. CA5 ( 2014 )

Filed 6/5/14 In re K.X. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re K.X., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, F068054
Plaintiff and Respondent, (Super. Ct. No. 12CEJ600702-2)
v.
K.X., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gary R.
Orozco, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia
A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Cornell, Acting P.J., Gomes, J., and Detjen, J.
INTRODUCTION
On April 26, 2013, a petition was filed pursuant to Welfare and Institutions Code
section 602,1 alleging that appellant, K.X., committed attempted second degree
commercial burglary, a misdemeanor (Pen. Code, §§ 664, 459, 460, subd. (b), count 1).
At the conclusion of a contested jurisdiction hearing on July 24, 2013, the juvenile
court found the allegation to be true.2 On August 14, 2013, the juvenile court found
appellant to be a ward of the court and placed him on probation upon various terms and
conditions. The juvenile court ordered that appellant be placed on an electronic monitor
not to exceed 45 days and perform 75 hours of community service. The court authorized
the probation department to permit appellant to perform up to 50 hours of community
service for any violations of probation.
Among the conditions of probation ordered by the juvenile court were that
appellant obey all laws, “not to consume any alcoholic beverage,” “not to use or possess
illegal narcotics or other controlled substances, related paraphernalia or poisons,” and
“not to possess any property with the knowledge that such property is stolen.” The
court’s minute order concerning the possession of stolen property was slightly different
than the order pronounced at the disposition hearing: the minor was “[n]ot to possess
property without consent of owner or have knowledge that such property is stolen.”
Appellant contends the trial court’s conditions of probation prohibiting drug and
alcohol use and the written prohibition for possessing stolen property are
unconstitutionally vague and overbroad because they all lack a requirement that appellant
has knowledge that he is violating the condition.
1 Unless otherwise noted, subsequent statutory references are to the Welfare and
Institutions Code.
2 The jurisdiction hearing began on July 16, 2013. The reporter’s transcript for the
hearing on July 24, 2013, incorrectly sets forth the date of the hearing as February 24,
2013.
2
FACTS
At 11:10 a.m. on April 24, 2013, a passing motorist saw appellant and two other
minors attempting to enter the snack bar building at Sunnyside High School in Fresno by
prying open the door with a pole or a little bar. Appellant was one of the minors trying to
gain access to the snack bar. The motorist contacted the police and school officials.
When the police officer assigned to the school and school staff arrived, the three minors
jumped a fence and fled on bicycles. The motorist followed the minors and identified
appellant to the investigating police officer.
CONDITIONS OF PROBATION
Appellant challenges three conditions of his probation for being unconstitutionally
vague and overbroad because they do not have a knowledge requirement.
Our Supreme Court has explained that juvenile courts have wide discretion to
select and impose any condition that is reasonable and fitting to accomplish justice as
well as reformation and rehabilitation of the minor. Although adult and juvenile
probationers share the goal of rehabilitation of the offender, probation for minors is not
an act of leniency as it is with adults. A condition of probation that would be
unconstitutional for an adult probationer may be permissible for a minor under the
supervision of the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) The
probation condition of urine testing for drugs and alcohol is permissible even when the
minor’s offense does not involve drugs or alcohol and the minor’s social history indicates
no drug or alcohol use. (In re Kacy S. (1998) 68 Cal.App.4th 704, 709-711.)
Concerning the drug and alcohol conditions of probation, we find that the
knowledge, or scienter, element is reasonably implicit in both conditions and so
construed provides appellant with due process. (People v. Rodriguez (2013) 222
Cal.App.4th 578, 592-594.)
Regarding the possession of stolen property condition of probation, we are not
persuaded that the written condition lacks a knowledge requirement. To the extent that
3
the written provision is different from the condition as pronounced in court, and out of an
abundance of caution, we find that the oral provision is controlling over the written
provision in the clerk’s minute order. This is the nature of a clerical error that can be
corrected at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v.
Karaman (1992) 4 Cal.4th 335, 345, fn. 11; People v. Hartsell (1973) 34 Cal.App.3d 8,
13.)
DISPOSITION
The case is remanded for the juvenile court to amend the clerk’s minute order to
reflect that appellant’s probation condition concerning not possessing stolen property
follow the oral pronouncement of the condition as follows: the minor is not to possess
any property with the knowledge that such property is stolen. The judgment is affirmed.
4