Opinion
E066170
02-21-2017
In re R.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.M., Defendant and Appellant.
Dawn S. Mortazavi, 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, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1500666) OPINION APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed as modified. Dawn S. Mortazavi, 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, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
In a negotiated plea agreement, appellant and defendant R.M. (minor) admitted to molesting his three-year-old half brother (JD1) by digitally anally penetrating him; and threatening to kill his six-year-old stepbrother (JD2), whom minor had previously molested, with a knife. Minor was adjudged a ward of the court, placed in a residential facility, and ordered to obey a set of probation conditions. On appeal, minor argues that the condition requiring minor not to have contact with anyone known to him to be disapproved of by his parents or probation officer, and not to possess weapons, are unconstitutionally overbroad. For the reasons set forth below, we affirm the judgment but direct that the probation condition regarding weapons be modified as specified in the "Disposition" portion of this opinion.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL BACKGROUND
On October 30, 2015, a petition charged minor with aggravated sexual assault of a child under Penal Code section 269, subdivision (a)(5) (counts 1-4); and making criminal threats under section 422 (count 5). On January 7, 2016, minor admitted the allegations in counts 1 and 5 after the People moved to reduce count 5, making criminal threats, to a misdemeanor. Minor was subsequently adjudged a ward of the court, placed at a behavioral health group home for treatment, and ordered to obey a set of probation conditions.
All further statutory references are to the Penal Code unless otherwise indicated.
One month later, the court found true that minor violated his wardship under Welfare and Institutions Code section 777, by refusing to comply with therapy and getting kicked out of the residential sex offender treatment program. Minor was deemed a continued ward of the court, placed in an out-of-state facility and ordered to continue to obey the probation conditions.
On June 6, 2016, minor filed a notice of appeal, and on June 16, 2016, minor filed an amended notice of appeal.
Because this appeal follows a disposition agreement, the factual background is taken from the probation officer's report, which minor stipulated to as the factual basis for his plea.
Minor anally penetrated JD1 numerous times with his finger and other objects, and threatened to kill JD1 and JD2. Minor had previously sexually molested two children.
On at least four occasions, minor, aged 16 at the time, undressed JD1 and inserted his finger into JD1's anus, causing him pain. Minor instructed JD1 to insert objects into his anus. JD1's mother discovered the abuse when she found JD1 laying naked on the floor attempting to insert a stencil into his anus.
On a different occasion, minor woke JD2 and held a knife to his face. Minor told JD2 that minor watched the television show "Dexter," and learned how to kill people. Minor stated that he would use those techniques to murder JD2 if he was given a chance. Later, after minor was arrested for molesting JD1, he telephoned his father from juvenile hall and told his father that when he was released, he would "kill" JD1.
Previously, in 2010, minor was found in bed with JD2, claiming that JD2 was licking Minor's crotch. An independent witness told law enforcement that, on occasion, he had seen minor receive and perform fellatio with JD2. JD2 and his twin (JD3) informed law enforcement that minor penetrated their anuses with foreign objects, made them put those objects in their mouths, and taught them to masturbate. Minor admitted to the oral copulation incidents.
Minor attempted suicide in the past, engaged in self-mutilation, had been diagnosed with mental illnesses for which he refused to take prescribed medication, attempted to kill a two-day-old puppy by placing the puppy in a freezer, and had a history of narcotic and alcohol abuse. During his first failed residential treatment, minor informed staff that minor could not be in an area with little girls because it would be hard for him.
DISCUSSION
Minor contends that two conditions of his probation—relating to his association with disapproved individuals and possession of weapons—are unconstitutional. The People argue that minor forfeited his challenge to the conditions. We need not address the People's forfeiture argument because minor's arguments fail on the merits.
A 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.'"'" (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.), citing In re Byron B. (2004) 119 Cal.App.4th 1013, 1015; § 730, subd. (b).) Any objection to the reasonableness of a probation condition is forfeited if not raised at the time of imposition. (See In re Justin S. (2001) 93 Cal.App.4th 811, 814; see also Sheena K., at p. 883, fn. 4; People v. Welch (1993) 5 Cal.4th 228, 237-238.) Constitutional challenges to probation conditions on their face, however, may be raised on appeal without objection in the court below. (Sheena K., at pp. 887-889.)
"The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents" (In re Antonio R. (2000) 78 Cal.App.4th 937, 941), thereby occupying a "unique role . . . in caring for the minor's well-being." (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500.) "'"[A] condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court."'" (Sheena K., supra, 40 Cal.4th at p. 889.) Minors are deemed to be "more in need of guidance and supervision than adults, and . . . a minor's constitutional rights are more circumscribed." (Antonio R., at p. 941.)
Nevertheless, "A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) Requiring minor to refrain from associating infringes on his constitutional right of freedom of association. (U .S. Const., 1st Amend.; see also People v. Lopez (1998) 66 Cal.App.4th 615, 628; People v. Garcia (1993) 19 Cal.App.4th 97, 102 (Garcia).) Consequently, conditions infringing on constitutional rights must be "tailored to fit the individual probationer." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373; see also Sheena K., at p. 886.) The state interest for which the conditions must be narrowly tailored is minor's rehabilitation. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.)
"A probation condition may be 'overbroad' if in its reach it prohibits constitutionally protected conduct." (People v. Freitas (2009) 179 Cal.App.4th 747, 750 (Freitas).) 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. (2010) 188 Cal.App.4th 1149, 1153.)
A probation condition may also be unconstitutionally vague. A vagueness challenge is based on the "due process concept of 'fair warning.'" (Sheena K., supra, 40 Cal.4th at p. 890.) Therefore, a probation condition "'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (Ibid.)
A. THE ASSOCIATION CONDITION
The juvenile court ordered minor to obey the following probation condition:
"Not to have direct or indirect contact with anyone known by minor to be disapproved by parent(s)/guardian(s)/Probation Officer/staff, except in placement."
Courts have long recognized a state's right to require juvenile offenders to avoid associating with persons they know to be disapproved of by a parent or a probation officer. (See Sheena K., supra, 40 Cal.4th at pp. 891-892; In re Byron B., supra, 119 Cal.App.4th at p. 1018 [upholding an identical probation requirement as written in the minute order].)
In Sheena K., the minor was placed on probation subject to the condition that she not "associate with anyone 'disapproved of by probation.'" (Sheena K., supra, 40 Cal.4th at p. 890.) On appeal, the minor asserted that the condition was unconstitutionally vague and overbroad. (Ibid.) The Supreme Court held that absent a knowledge requirement, the condition was unconstitutionally vague. The court explained, "'[B]ecause of the breadth of the probation officer's power to virtually preclude the minor's association with anyone,' defendant must be advised in advance whom she must avoid." (Ibid.) The Supreme Court revised the condition to specify that the probationer need avoid only those individuals "'known to be disapproved of' by [the] probation officer." (Id. at p. 892.) In this case, there is a personal knowledge requirement—the probation condition states that minor not have contact "with anyone known by minor" to be disapproved by his parents, guardian, and staff/probation officer.
Appellate courts have consistently upheld probation conditions when there is a personal knowledge element. (See, e.g., In re Victor L. (2010) 182 Cal.App.4th 902, 911-912 (Victor L.) [probation condition modified to include a personal knowledge requirement]; In re Justin S. (2001) 93 Cal.App.4th 811, 816 [court modified a condition prohibiting a minor's association with "gang members" to prohibit only association with "persons known to the probationer to be associated with a gang"].)
Minor contends that "the probation term restricting association with anyone disapproved of by minor's probation officer must be stricken as it improperly violates the separation of powers clause of the California Constitution." In support of his argument, minor relies on People v. O'Neil (2009) 165 Cal.App.4th 1351 (O'Neil).
In O'Neil, the probation condition at issue stated: "'You shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.'" (O'Neil, supra, 165 Cal.App.4th at p. 1354.) The reviewing court observed that, "[a]s written, there are no limits on those persons whom the probation officer may prohibit defendant from associating with." (Id. at p. 1357.) It noted that the condition failed to "identify the class of persons with whom defendant may not associate [or] provide any guideline as to those with whom the probation department may forbid association." (Id. at pp. 1357-1358.) The O'Neil court concluded that, "[w]ithout a meaningful standard, the order is too broad." (Id. at p. 1358.)
O'Neil is not dispositive, as it is distinguishable from the instant case. O'Neil concerned a probation condition giving a probation officer, not a parent or guardian, broad discretion in determining the persons with whom the probationer could associate. It also involved an adult offender, not a juvenile, which was a distinction specifically noted by the O'Neil court. (O'Neil, supra, 165 Cal.App.4th at p. 1358, fn. 4.) As stated ante, "'[a] condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.'" (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242.)
Furthermore, courts have upheld probation conditions that are virtually identical to the one at issue in the present case. In In re Frank V., supra, 233 Cal.App.3d 1232, the juvenile court imposed a probation condition that prohibited the minor from associating with anyone disapproved of by his probation officer. (Id. at p. 1237.) The minor challenged this condition as overbroad and as an infringement on his right of association. (Id. at p. 1241.) In explaining the condition to the minor, the juvenile court told him that, if his mother, father, or probation officer instructed him to not "hang around" with certain persons, then he could not associate with such persons. (Ibid.) The appellate court, recognizing that a juvenile court acts in parens patriae, upheld the probation condition. It stated that "[t]he juvenile court could not reasonably be expected to define with precision all classes of persons which might influence [the minor] to commit further bad acts. It may instead rely on the discretion of his parents, and the probation department acting as parent, to promote and nurture his rehabilitation." (Id. at p. 1243.)
Similarly, in In re Byron B., supra, 119 Cal.App.4th 1013, this court rejected the minor's challenge to a probation condition prohibiting contact with any person disapproved by a parent or probation officer. We held that the condition was not overly broad. (Id. at pp. 1015, 1017.) We concluded that "[t]he juvenile court, acting in parens patriae, could limit appellant's right of association in ways that it arguably could not limit an adult's." (Id. at p. 1018.)
We conclude that minor's claim that the probation condition is unconstitutional under O'Neil, supra, 165 Cal.App.4th 1351 is meritless.
B. THE WEAPONS CONDITION
The juvenile court ordered minor to obey the following probation condition:
"Not possess or have immediate access to weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, knives and pepper spray."
Minor contends that this probation condition prohibiting weapons is overbroad because it does not contain a knowledge requirement and because it does not include an exception for lawful use of force.
This issue was addressed in People v. Moore (2012) 211 Cal.App.4th 1179 (Moore). There, the defendant was convicted for attempted second degree robbery and misdemeanor vandalism. At sentencing, the court imposed a variety of probation conditions, including a condition similar to the one at issue here that provided: "Do not own, use, or possess any dangerous or deadly weapons, including firearms, knives, and other concealable weapons." (Id. at p. 1183.) Like minor in our case, the defendant in Moore contended that this probation condition was unconstitutionally vague because it lacked an express knowledge requirement. (Ibid.)
Because the Moore court was presented with the nearly identical issue before us and because it undertook an in-depth analysis of that issue, we cite liberally to that case and its discussion of the applicable law:
"Trial courts have broad discretion to prescribe probation conditions to foster rehabilitation and protect public safety. [Citations.] A probation condition that imposes limitations upon constitutional rights must be narrowly tailored to achieve legitimate purposes. [Citations.] Further, '[a] probation condition "must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated," if it is to withstand a challenge on the ground of vagueness. [Citation.]' [Citations.] 'A probation condition which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process.' [Citations.] The 'underpinning of a vagueness challenge is the due process concept of "fair warning." [Citation.] The rule of fair warning consists of "the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders". . . .'
"Beginning with Garcia[, supra,] 19 Cal.App.4th 97, . . . California appellate courts have routinely added an explicit knowledge requirement to probation conditions prohibiting a probationer from associating with certain categories of persons, frequenting or remaining in certain areas or establishments, and possessing certain items. [Citation.] [Fn. omitted.] "[T]here is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter.'
"Freitas [supra, 179 Cal.App.4th at p. 749], relied upon by [the defendant], modified a probation condition prohibiting the defendant from owning, possessing, or having custody or control of any firearms or ammunition to incorporate an express scienter requirement. [Citation.] Freitas acknowledged that firearms and ammunition were readily recognizable, and it was 'unnecessary to specify that defendant must know a gun is a gun.' [Citation.] However, Freitas agreed with the defendant that 'without the addition of a scienter requirement, he could be found in violation of probation if he merely borrows a car and, unbeknownst to him, a vehicle owner's lawfully obtained gun is in the trunk.' [Citation.] The court observed that former section 12021 (prohibiting felons from possessing firearms, now section 29800, subdivision (a)(1)), had been construed to contain an implied knowledge requirement. Moreover, the jury instruction relevant to that offense listed knowledge as an element. Freitas therefore found it appropriate to modify the probation condition to add an express knowledge requirement, because 'the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition.'
"The parties here do not dispute that if [the defendant] unknowingly was to possess a weapon or firearm, he would not be in violation of probation. The parties do disagree, however, regarding whether due process requires that the probation condition be modified to include an express knowledge requirement, or whether modification is unnecessary because a knowledge requirement is already 'manifestly implied.' We believe the latter view is correct.
"Certainly the weapons prohibition at issue here is distinct from many of the associational, presence, and possession prohibitions that are often the subject of express modifications. Where a probation condition prohibits association with certain categories of persons, presence in certain types of areas, or possession of items that are not easily amenable to precise definition, 'an express knowledge requirement is reasonable and necessary. The affiliations and past history of another person may not be readily apparent without some personal familiarity. Similarly, despite the presence of gang graffiti, sites of gang-related activity may not be obvious to all. And it takes some experience or training to identify what colors, symbols, hand signs, slogans, and clothing are emblematic of various criminal street gangs.'
"In contrast, there is no ambiguity regarding what is prohibited here: as Freitas pointed out, it is unnecessary to specify that defendant must know a gun is a gun. [Citations.] As we explained in In re R.P. [(2009) 176 Cal.App.4th 562, 567-568], the term '"dangerous or deadly weapon'" likewise has a clearly established meaning. [Citation.] There, we held that the phrase '"dangerous or deadly weapon'" was not unconstitutionally vague when used in a probation condition. [Citation.] After surveying the relevant statutes, case law, jury instructions, and a legal dictionary, we explained: '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.' [Citation.] We concluded the phrase had a plain, commonsense meaning: it prohibited possession of items specifically designed as weapons, and other items not specifically designed as weapons that the probationer intended to use to inflict, or threaten to inflict, great bodily injury or death. [Citation.] The condition was therefore 'sufficiently precise for [the probationer] to know what is required of him.' [Citation.] Likewise, the weapons prohibition here is sufficiently precise to inform [the defendant] of what is required of him, and for a court to determine whether the condition has been violated. Because [the defendant] can have no doubt about what is prohibited, innocent or inadvertent violation of the condition is far less likely than in cases in which the parameters of the probation condition are imprecise.
"[The defendant's] concern that without the express addition of a scienter requirement he could be found in violation of probation for unknowing possession appears unfounded. As the People point out, a trial court may not revoke probation unless the defendant willfully violated the terms and conditions of probation. [Citations.] As [People v.] Patel [(2011) 196 Cal.App.4th 956, 960 (Patel)] explained, it is now settled that a probationer cannot be punished for presence, possession, or association without proof of knowledge. [Citation.] Thus, in the unlikely event that [the defendant] finds himself in unknowing and inadvertent possession of a firearm or weapon, his lack of knowledge would prevent a court from finding him in violation of probation. When a probationer lacks knowledge that he is in possession of a gun or weapon, his possession cannot be considered a willful violation of a probation condition.
"Victor L. [, supra, 182 Cal.App.4th at pp. 912-913] concluded that addition of a knowledge requirement to a probation condition was necessary despite the aforementioned willfulness requirement. [Citation.] As pertinent here, Victor L. considered a probation condition prohibiting a juvenile from remaining "'in any building, vehicle or in the presence of any person where dangerous or deadly weapons or firearms or ammunition exist.'" [Citation.] The [minor] argued that absent a knowledge requirement, the condition was overbroad and vague: 'Because other people in public places or private homes may be carrying concealed weapons without his knowledge, [the minor] argues that, in the absence of a knowledge requirement, he "could easily violate the condition without even realizing it.'" [Citation.] The People responded, much as they do here, that no modification was necessary because a court may not revoke probation unless the evidence supports a conclusion that the probationer's conduct is willful. [Citation.] Victor L. rejected this argument, reasoning: 'While the requirement of proof of willfulness may save [the minor] from an unconstitutional finding of guilt based on an unknowing probation violation, that is cold comfort to a probationer who suffers from an unfounded arrest and detention based on the whim or vengeance of an arbitrary or mean-spirited probation officer. [Citation.] [¶] Due process requires more. It requires that the probationer be informed in advance whether his conduct comports with or violates a condition of probation.' [Citation.] Similarly, Garcia[, supra,] 19 Cal.App.4th 97, . . . found an implied knowledge requirement insufficient in a probation condition that infringed upon the defendant's freedom of association, reasoning: '[T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.'
"We do not find Victor L. or Garcia applicable here. First, both cases involved conditions that potentially infringed on constitutional rights. At least insofar as it prohibits [the defendant] from possessing a firearm, or statutorily prohibited weapons, the challenged condition does not impact [his] constitutional rights.
"But beyond that, the primary concern in Garcia and in the pertinent portion of Victor L. was that the probation conditions at issue failed to clearly specify what conduct was prohibited, that is, what persons or areas the probationers were required to avoid. The probation conditions were therefore not narrowly drawn, and express modification was required to provide adequate notice. In contrast, as we have explained, the probation condition at issue here provides [the defendant] with advance notice about what conduct is prohibited, and therefore is narrowly drawn. The 'core due process requirement of adequate notice' [citation] is satisfied. Unlike in Victor L. and Garcia, [the defendant'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.
"In regard to Victor L.'s concern about arbitrary enforcement, Patel has explained: 'We . . . do not discern how addressing this specific issue on a repetitive case-by-case basis is likely to dissuade a probation officer inclined to act in bad faith from finding some other basis for harassing an innocent probationer.'
"In Patel, supra, 196 Cal.App.4th 956, . . . the Third Appellate District concluded that '[i]n the interests of fiscal and judicial economy,' and in light of the body of case law establishing that a probationer cannot be punished for presence, possession, or association absent proof of scienter, that court would no longer entertain the issue on appeal but would henceforth construe all such probation conditions to include a knowledge requirement. [Citation.] Patel reasoned: 'As with contracts generally, [a scienter requirement] should be considered a part of the conditions of probation' just as if it had been expressly referenced and incorporated. [Citation.] [¶] To date, Patel's approach of deeming scienter requirements to be present in all probation conditions and declining to entertain the issue has not been adopted by other courts. [Citation.] While we generally agree with Patel's analysis, we do not follow Patel's approach on this point. Among other things, certain probation conditions may require more case-specific modification if they are too vague to provide a probationer with adequate notice of what conduct is prohibited." --------
"We also do not believe Sheena K., supra, 40 Cal.4th 875, . . . compels modification. There, a probation condition requiring that the defendant not associate with "'anyone disapproved of by probation'" was unconstitutionally vague absent an express knowledge requirement. [Citation.] The provision did not notify the probationer in advance regarding what persons she must avoid, and the probation officer had the ability to preclude her association with anyone. (Id. at pp. 890-891.) Sheena K. concluded modification to impose an explicit knowledge requirement was necessary to render the condition constitutional. (Id. at p. 892.) Unlike in Sheena K., the weapons condition here does notify [the defendant] in advance regarding what conduct is prohibited, and is not unconstitutionally vague. [The defendant's] primary concern is that he not be found in violation of probation absent knowing possession. As we have discussed, this concern is illusory given that a trial court may not revoke [the defendant's] probation unless his violation of the weapons condition is knowing and willful. [Citations.] Sheena K. did not have occasion to consider whether express modification of a sufficiently precise condition was required, or the significance of the principle that a probation violation must be willful. Cases are not authority for propositions not considered.
"As [People v.] Kim [(2011) 193 Cal.App.4th 836, 847] observed, the 'function served by an express knowledge requirement should not be extended beyond its logical limits.' [Citation.] Accordingly, because the probation condition, as written, is sufficiently precise to alert [the defendant] to what conduct is prohibited and guard against arbitrary enforcement; because a knowledge requirement is implied in the condition; and because [the defendant] cannot be found to have violated probation absent knowing possession [citation], we conclude express modification of the probation condition is unnecessary. [Fn. omitted.]" (Moore, supra, 211 Cal.App.4th at pp. 1184-1189.)
We find the appellate court's reasoning in Moore persuasive and adopt it here. We too conclude the challenged probation conditions have plain, commonsense meanings. Here, the challenged condition prohibits minor from possessing or having "immediate access to weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, knives, and pepper spray." This conditions in our view, is "sufficiently precise" (see Moore, supra, 211 Cal.App.4th at p. 1186) for minor to know what is required of him.
Equally important, we conclude minor's concern to be unfounded that without the addition of a scienter requirement he unwittingly could be found in violation of this probation condition because the term "prohibited weapon" is not clear. As noted in Moore, a court may not revoke a defendant's probation absent a finding that the defendant willfully violated the terms and conditions of his or her probation. (Moore, supra, 211 Cal.App.4th at p. 1186; see also Patel, supra, 196 Cal.App.4th at p. 960 [noting the well-settled rule that a probationer cannot be punished for presence, possession, or association without proof of knowledge].)
Applying this rule here, to the extent there was a finding that minor lacked knowledge that he was in possession of a "prohibited weapon" as provided in the challenged probation condition, his possession of such could not be considered a willful violation of a probation condition. We therefore conclude it is unnecessary to add an express knowledge requirement to this condition of probation because to do so would be mere surplusage given its language and the law governing its operation.
Minor also argues that the condition must be modified to allow for the use of weapons in lawful self-defense.
Self-defense is one of the "inalienable rights" secured by the California Constitution. (Cal. Const., art. I, § 1; People v. McDonnell (1917) 32 Cal.App. 694, 704.) Statutorily, under sections 197, 198, 692, 693, and 694, self-defense and defense of another are defenses to virtually any crime—even to possession of a firearm by a convicted felon. (See generally People v. King (1978) 22 Cal.3d 12, 22-23.)
The right of self-defense, however, applies only in an emergency (People v. King, supra, 22 Cal.3d at pp. 15, 24), in the face of an imminent threat (People v. Minifie (1996) 13 Cal.4th 1055, 1064). It does not confer any right to possess a weapon indefinitely, just in case. (People v. McClindon (1980) 114 Cal.App.3d 336, 339-340.)
We have the power to construe a probation condition. We also have the power to modify a probation condition to bring it into compliance with the law. (Sheena K., supra, 40 Cal.4th at p. 888.) "'[T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.'" (Freitas, supra, 179 Cal.App.4th at p. 751.) Thus, we will modify the probation condition.
DISPOSITION
We direct that probation condition (r) be modified to read as follows: "Not possess or have immediate access to weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, knives, and pepper spray, except when such possession is justified because minor is using the weapon in accordance with the law of self-defense." In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.