In re Jonathan L.

Filed 9/30/15 In re Jonathan L. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re JONATHAN L., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN L.,
Defendant and Appellant.
A143437
(Contra Costa County
Super. Ct. No. J07-01890)
Appellant challenges two conditions of his probation that he may not (1) possess
deadly or dangerous weapons or (2) participate in gang activity or go to areas known for
gang-related activity. Appellant argues both conditions are unconstitutionally vague and
overbroad, and therefore must be modified. He also argues the trial court improperly
calculated his predisposition and precommitment credits. We find the probation
conditions are proper, but the court erred in calculating appellant’s credits.
I. BACKGROUND
Appellant was arrested following an incident in which he threatened his girlfriend
with a loaded shotgun and fled from the police. On June 3, 2014, the Contra Costa
County District Attorney filed an original juvenile wardship petition charging appellant
with four counts: (1) possession of a loaded firearm (Pen. Code,1 § 25850, subds. (a),
1 All statutory citations are to the Penal Code unless otherwise specified.

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(c)(4)); (2) possession of ammunition by a minor (§ 29650); (3) possession of a firearm
by a minor (§ 29610); and (4) resisting a peace officer (§ 148, subd. (a)(1)). Appellant
pleaded no contest to the third count in exchange for dismissal of the remaining counts.
At the dispositional hearing, the trial court ordered appellant to participate in a
youth offender treatment program (YOTP) for a period of not more than three years. The
trial court also imposed various probation conditions, two of which are at issue on appeal.
The first contested condition states the minor shall “Not use [or] possess deadly or
dangerous weapons.” The second condition states: “The minor shall not participate in
any gang activity and shall not visit or remain in any specific location known by the
minor to be, or that the [deputy probation officer] informs the minor to be, an area of
gang-related activity.”
II. DISCUSSION
Appellant contends both probation conditions are unconstitutionally vague and
overbroad. In addition, he contends the trial court erred in calculating his predisposition
and precommitment credits. The constitutional challenge to the probation conditions
raises an issue of law, which we review de novo. (In re Shaun R. (2010) 188 Cal.App.4th
1129, 1143.) The trial court’s decisions regarding confinement are reviewed for an abuse
of discretion, with the understanding appellant is entitled to credit against his term of
confinement for time spent in custody before the disposition hearing. (In re Emilio C.
(2004) 116 Cal.App.4th 1058, 1067.) We conclude the probation conditions were proper,
but the trial court erroneously calculated appellant’s predisposition credits.
A. Probation Conditions
A probation condition is unconstitutionally overbroad if it impinges upon a
probationer’s constitutional rights and is not carefully tailored and reasonably related to a
compelling state interest in reformation and rehabilitation. (In re E.O. (2010)
188 Cal.App.4th 1149, 1153.) However, perfecting the balance between the condition’s
legitimate purpose and the burden it imposes on the probationer’s constitutional rights is
impossible. (Ibid.) Thus, “practical necessity will justify some infringement.” (Ibid.) A
probation condition is unconstitutionally vague if it is not “ ‘sufficiently precise for the

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probationer to know what is required of him, and for the court to determine whether the
condition has been violated.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In other
words, a probation condition must provide “ ‘fair warning’ ” of the prohibited conduct to
the potential offender in order to prevent arbitrary enforcement. (Ibid.)
Unconstitutionally vague probation conditions may often be cured by requiring the
probationer to know a particular association, place, or item is within a prohibited
category. (See In re Sheena K., supra, 40 Cal.4th at p. 892.) For example, a vague
condition prohibiting gang associations may be modified to forbid association with any
person known to the probationer to be a gang member. (Ibid.) However, not every
category condition is vague merely because it does not require the probationer to know a
particular association, place, or item is within the prohibited category. A probation
condition passes constitutional muster so long as it spells out with reasonable specificity
what is prohibited in such a way that persons of common intelligence need not guess at
its meaning or differ as to its application. (Id. at p. 890.) Thus, it is unnecessary to
require a probationer to know that something falls within a prohibited category when the
category is essentially clear.
It is also important to distinguish between the knowledge requirement used to
make a vague category more precise and mens rea principles. Willfulness is the mens rea
that is implicitly required for a probation violation. (People v. Cervantes (2009)
175 Cal.App.4th 291, 295.) Put another way, probation may not be revoked unless the
evidence shows the probationer’s conduct constituted a willful violation of the terms of
his or her probation. (Ibid.) Thus, sentencing courts need not include a requirement that
a probationer knowingly violated a condition in order to protect against enforcement of
unwitting violations. Moreover, expressly adding a mens rea requirement to a probation
condition may not clarify the ambiguity at issue. If reasonable probationers can be
confused about what falls within a prohibited category, informing them they cannot
knowingly engage in conduct related to that category may still not explain clearly what
they are supposed to avoid.

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With these principles in mind, we turn to the specific probation conditions at issue
here.
1. The Weapons Condition
The first condition at issue states appellant shall not use or possess deadly or
dangerous weapons. Appellant argues the weapons condition is improper because (1) the
term “deadly or dangerous weapons” is overbroad and vague, and (2) the condition does
not include an express knowledge requirement. We are not persuaded.
As to appellant’s contention regarding the term “deadly and dangerous weapons,”
the Second Appellate District rejected a similar challenge in In re R.P. (2009)
176 Cal.App.4th 562. After surveying statutory authority, case law, jury instructions, and
Black’s Law Dictionary, the court concluded the phrase “dangerous or deadly weapon” is
clearly established by law and is “ ‘a matter of common knowledge and everyday
experience.’ ” (In re R.P., at pp. 568, 569.) The court noted “legal definitions of ‘deadly
or dangerous weapon,’ ‘deadly weapon,’ ‘dangerous weapon,’ and use in a ‘dangerous or
deadly’ manner consistently include the harmful capability of the item and the intent of
its user to inflict, or threaten to inflict, great bodily injury.” (Id. at p. 568.) Accordingly,
the court held the probation condition proscribing “deadly or dangerous weapons” was
sufficiently precise, and thus, constitutional. (Ibid.) We agree with the Second District’s
sound rationale and therefore hold the term “deadly or dangerous weapon” is neither
unconstitutionally vague nor overbroad.
Appellant’s contention that the weapons condition should include an express
knowledge requirement is also unavailing, as it conflates the issues of vagueness and
mens rea. As discussed above, all probation conditions implicitly include a mens rea
requirement. Accordingly, regardless of how the probation condition is worded,
appellant cannot be held in violation for carrying a deadly and dangerous weapon if he
does so without knowledge of its presence. Hence, there is no need to modify the
condition to add an explicit knowledge requirement.

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2. The Gang Condition
The next probation condition challenged by appellant states he “shall not
participate in any gang activity and shall not visit or remain in any specific location
known by the minor to be, or that the [deputy probation officer] informs the minor to be,
an area of gang-related activity.” Appellant contends this gang condition is improper
because (1) it does not reference a specific gang and does not contain a scienter
requirement, and (2) it does not define the term gang activity.
Appellant’s first contention—that the condition is improper because it does not
reference a specific gang—is unpersuasive. The purpose of the gang-related probation
condition is to steer the appellant entirely away from all gang influence, leaving no
loopholes for maintaining his gang ties. (See In re Victor L. (2010) 182 Cal.App.4th 902,
915 (Victor L.).) If we were to limit the condition to a particular gang, appellant would
be free to join any other gang of his choosing. This would be entirely counterproductive
with regard to the state’s interest in rehabilitation.
Appellant also contends that absent a reference to a specific gang, the condition is
unconstitutionally vague, since he is not aware of every gang’s membership roster and
consequently may inadvertently associate with gang members. Appellant asserts this
unnecessarily infringes upon his First Amendment rights to association, expression, and
movement. But the condition at issue does not proscribe association with gang members.
It merely prohibits appellant from participating in or going to areas of gang-related
activity. Another condition of appellant’s probation does prohibit appellant from
associating with gang members. But that condition includes an express knowledge
requirement. Specifically, it states: “The minor shall not associate with anyone known to
the minor to be a gang member or associate with a gang, or anyone who the [deputy
probation officer] informs the minor to be, a gang member or associated with a gang.”
Thus, there is no basis for appellant’s assertion that he could be held in violation of his
probation for associating with persons who, unbeknownst to him, are gang members.
Appellant’s next contention, that the term “gang activity” is overbroad and vague,
is also unpersuasive. To support his argument, appellant relies on Victor L., supra,

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182 Cal.App.4th 902. In that case, one of the probation conditions at issue ordered the
minor to stay away from areas known by the minor for gang-related activity. (Id. at
p. 913.) The minor argued that because gang members “might mail a letter at the post
office ‘for the benefit’ of a street gang, or might purchase groceries ‘in association’ with
other gang members,” he might be guilty of violating probation “simply by shopping at
the same grocery store or using the same post office that other gang members patronize.”
(Id. at p. 915.) While finding such an interpretation was unreasonable, the court
determined the term “gang-related activity” was ambiguous and “reasonable minds may
differ as to precisely which ‘areas’ would come within the condition’s purview.” (Id. at
pp. 915–916.) The court was concerned the literal language commanded the minor to
stay away from “parts of town where any criminal street gangs thrive, even if he does not
associate with members of any gang there.” (Id. at p. 916.)
The court held specification based on geographic or activity-based limits would
make the condition “clear enough to avoid a vagueness challenge and narrow enough to
escape a claim of overbreadth,” but left it to the probation officer to consider which
approach would best serve the minor. (Victor L., supra, 182 Cal.App.4th at p. 918.) The
probation condition was modified to state: “ ‘The Minor shall not be in any areas where
gang members are known by Minor to meet or get together, or areas known by Minor for
gang-related activity (or specified by his probation officer as involving gang-related
activity), nor shall he participate in any gang activity.’ ” (Id. at pp. 931–932.) The court
also instructed the probation officer to inform the minor in advance of forbidden areas.
(Id. at p. 919.) If the minor disagreed with the officer’s list or map, he could move to
modify the condition of probation. (Ibid.)
In the instant action, the challenged gang condition already grants the probation
officer the discretion to define the particular areas of gang-related activity from which
appellant must stay away. It also includes an express knowledge requirement, stating
appellant must stay away from locations he knows to be areas of gang-related activity.
Thus, the condition at issue in this case is much narrower than the one challenged in
Victor L. Appellant is not required to stay away from any and all areas of gang activity,

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only those areas of gang-related activity of which he is aware or areas his probation
officer instructs him to avoid. Moreover, there is no indication appellant’s probation
officer has abused his or her discretion by, for example, instructing appellant to stay away
from large swaths of town. We therefore find the condition provides sufficient notice to
appellant, and is not overbroad.
Accordingly, we decline to modify the challenged gang condition.
B. Predisposition and Precommitment Credits
Both appellant and the Attorney General assert we should remand for proper
calculation of appellant’s predisposition and precommitment credits. We agree.
“In a juvenile delinquency proceeding, ‘a minor is entitled to credit against his or
her maximum term of confinement for the time spent in custody before the disposition
hearing.’ ” (In re A.M. (2014) 225 Cal.App.4th 1075, 1085.) A minor is also entitled to
custody credits for the time following the minor’s disposition hearing, but prior to
commitment. (In re J.M. (2009) 170 Cal.App.4th 1253, 1256.) “ ‘It is the juvenile
court’s duty to calculate the number of days earned, and the court may not delegate that
duty.’ ” (In re A.M., at p. 1085.)
Here, appellant was arrested on June 1, 2014, and the disposition hearing took
place on July 10, 2014. He remained in custody throughout that period, totaling 40 days.
However, at the July 10 hearing, appellant was only granted 26 days of credit for time
served.
After the July 10 hearing, the trial court ordered appellant to participate in and
complete the YOTP. The trial court also ordered appellant to be detained in juvenile hall
pending delivery to the YOTP. The record does not show when appellant was delivered
to YOTP. In any event, appellant is entitled to credits for the time he spent in custody
prior to his delivery to the YOTP.
Therefore, we remand so the trial court may recalculate appellant’s predisposition
and precommitment credits.

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III. DISPOSITION
The judgment is affirmed in part and reversed in part. We affirm the challenged
probation conditions, but we remand for recalculation of the predisposition and
precommitment credits.

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_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Banke, J.
A143437

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