Opinion
A146793
03-23-2017
In re O.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.T., Defendant and Appellant.
BY THE COURT:
IT IS ORDERED that the opinion in the above-captioned case, filed on March 23, 2017, is modified as follows: On page 12, delete the third and fourth sentences of footnote 5, which read: "This claim is forfeited because the minor did not raise it in the trial court. (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1242 [in general, "appellate courts should not consider a Fourth Amendment theory for the first time on appeal"].)" On Page 12, delete the fifth sentence of footnote 5, which reads: "The claim also fails on the merits" and insert in its place:
"We disagree." Appellant O.T.'s petition for rehearing, filed on April 5, 2017, is denied. This modification does not affect the judgment. Dated: __________
/s/_________, P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. SJ15025405)
The juvenile court denied O.T.'s (the minor) motion to suppress, and he admitted misdemeanor possession of metal knuckles (Pen. Code, § 21810). The court declared the minor a ward of the court (Welf. & Inst. Code, § 602) and placed him on probation with various conditions.
All undesignated statutory references are to the Penal Code.
The minor appeals. He contends: (1) the court violated his constitutional due process rights by "assum[ing] the role of the prosecutor" and questioning the prosecution witness at the suppression hearing; (2) the court erred by denying his motion to suppress; and (3) certain probation conditions are vague and overbroad. We modify one probation condition. As modified, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged the minor with felony possession of metal knuckles (§ 21810). He moved to suppress, claiming he was illegally detained and the detention was unduly prolonged. In opposition, the prosecution argued the minor was lawfully detained for violating Vehicle Code section 21456, subdivision (b), which prohibits pedestrians from starting to cross a roadway when an upraised hand signal is flashing or steady. The prosecution also argued the additional investigative detention was reasonable, and the search was justified for officer safety and as incident to arrest.
Motion to Suppress Hearing
A. Evidence Elicited from Attorney Questioning
A certified law student represented the prosecution at the motion to suppress hearing.
On a January 2015 evening, San Francisco Police Officer Joshua Cabillo and his partner were in a patrol car on 24th Street in the Mission district. As Officer Cabillo turned onto Mission Street, he saw three pedestrians — including the minor — enter the intersection of 24th and Mission against the "flashing red hand." Officer Cabillo immediately noticed the minor had his arm straight against his side, in a "firm and tight" position. The minor's fist was "clenched" by his pants pocket, like he "had something in his hand" or was "preparing to strike" Officer Cabillo "or somebody else in the area." Officer Cabillo thought it was "uncommon" for a person "to be walking in that manner" or to keep his hand "clenched for a long period of time." Officer Cabillo got out of the patrol car and detained the boys for violating Vehicle Code section 21456, subdivision (b).
Within 10 to 15 seconds after getting out of his car, Officer Cabillo asked the minor "why he was clenching his fist and if he could open it up." In response, the minor "opened his hand and . . . crumbles of a green leafy substance . . . fell out of his hand" and blew away. Based on his training and experience, Officer Cabillo believed the substance was marijuana. At that point, Officer Cabillo decided to search the minor "for additional contraband such as marijuana or marijuana paraphernalia" because "minors are not allowed to possess marijuana." Officer Cabillo also performed the search "for officer safety" because "it was a gang area. The [boys] were wearing gang clothing. One of the three [boys] . . . had been arrested with a knife" a few weeks before the incident. The minor was wearing a red rosary necklace, which Officer Cabillo considered gang attire.
Officer Cabillo "requested the [m]inor place his hands behind his head" and, with one hand, grasped the minor's hands. With his other hand, Officer Cabillo patted down the minor's pants pockets. Officer Cabillo felt a metal object he "immediately recognized . . . to be brass knuckles." He reached into the minor's pocket and retrieved the object. The minor was arrested, and later booked for the Vehicle Code violation and possession of metal knuckles.
B. Court Questioning
At the conclusion of the attorneys' examination of Officer Cabillo, the court engaged the officer in the following colloquy:
"THE COURT: Officer, I have a few questions for you for clarification purposes and then . . . counsel can ask questions . . . . [¶] Sir, you indicated at 24th and Mission that this is a 'gang area.' What do you mean by that?
"[OFFICER CABILLO]: Gang area? It's this area is claimed by the Norteño criminal street gang. . . . [G]ang members are often contacted loitering hanging out in corners. A lot of crimes including robberies[,] thefts[,] assaults[,] even gang initiations are in the area.
"THE COURT: What does that mean? 'Gang initiations.'
"[OFFICER CABILLO]: Gang members are often beat down to initiate themselves into a gang. Usually it's been documented for Norteños usually the area they get beat down for 14 seconds and that's . . . how they want to enter the gang that's kind of something they have to go through in order to be part of the gang. It's also documented through tattoos. Graffiti in the area. And so, this is why, and also assaults against rival gang members occur in this area. That's why I would say 24th and Mission is an area claimed by the Norteños criminal street gang.
"THE COURT: Some gang have colors associated with them. Does this Norteños gang have a color associated with them?
"[OFFICER CABILLO]: Yes, Your Honor.
"THE COURT: What color is that?
"[OFFICER CABILLO]: Red is the adopted color of the gang. Members will often wear red clothing or accents and it's more of a subdued not as overt as in the past. Small things. Just wearing . . . either laces or a belt underneath their clothing or a red rosary underneath their clothing where it is not commonly visible. But yes. Red is the documented color of the gang.
"THE COURT: And this information you just provided to the Court, where did you get it from?
"[OFFICER CABILLO]: I have obtained I would say . . . between five to eight classes which involved . . . close to 500 hours of training including Hispanic, general gang training, but more specifically Hispanic criminal gangs which involve the Sureños and Norteños. Basically where they originated from. The state penitentiary is where they originated from. Originally state penitentiary had an extension or power into the streets. It was through the gangs. [¶] And specifically in the Mission District are the Hispanic criminal gangs. It's not limited to Hispanic . . . but that's where their origins came from and most gang members are Hispanic. [¶] . . . [¶] It's a Hispanic criminal gang because that's . . . in the state penitentiary that's how it's broken down. . . . It's segregated in the prison. So, Hispanics from Northern California, which are the Norteños, against the Hispanics from Southern California, Sureños. Sureños is translated for south. Norteños for north.
"As they exit the state penitentiary . . . the streets became the stronghold which is . . . their extension to the street where drugs are—that's kind of how they were formed for monetary reasons and for protection as well and the street gangs were basically formed . . . for protection as well as to control the streets for narcotics trades and sales. Controlling territories where that can be done.
"THE COURT: All right. Let me ask you this. When you say, even though it's not in your report, but when you tell the Court here that one of the reasons you searched this young person was for officer safety, what does that mean? What were you afraid of?
"[OFFICER CABILLO]: Based on my training and experience . . . the purpose of your question was basically was only classes that I'd been to. That's a real controlled environment. [¶] My experience also comes from arrests that I've made on the streets. Talking to validated gang members through statements and understanding how the gang works. [¶] So, from my prior arrests and dealing with gang members, gang members will often carry weapons to arm themselves to protect themselves from rival gang members. And not just to protect themselves from rival gang members but also to protect their turf or the area they control. [¶] So, . . . often you're confronted with . . . either to defend themselves or to protect their territory they will often do this by carrying weapons on themselves.
"THE COURT: This was going through your mind at the time that you conducted the search of the Minor?
"[OFFICER CABILLO]: Yes based on the area, the clothing, and his associates. And one of his associates that he was with was carrying a knife at the time several weeks prior including an arrest. And the [Minor] having a clenched fist at his side as I approached him.
"THE COURT: Officer, if you wouldn't mind, can you describe Exhibit 2-A? Maybe I was too quick to just call them brass knuckles. I may be one of those people that uses the term incorrectly. [¶] Can you give us a physical description of 2-A please?
"[OFFICER CABILLO]: Exhibit 2-A is a at first glance . . . metal knuckles with circular holes . . . and these are . . . prototypical metal knuckles used as an offensive or defensive weapon in a fight to protect oneself or to injure another subject. [¶] These are . . . you slide your four fingers in it and they are used to protect one's knuckles from breaking . . . in a fight and also to cause great bodily injury or harm or even death to one's opponent by striking him."
The court asked counsel if they had "any follow-up questions" or "redirect" and counsel for both parties asked Officer Cabillo chain of custody questions regarding the metal knuckles. Defense counsel also asked Officer Cabillo whether he believed the boys "were coming out of State Prison" and Officer Cabillo responded, "No[.]" At the conclusion of the hearing, the court denied the motion to suppress, concluding, "based upon the totality of the circumstances," Officer Cabillo's "actions were . . . reasonable."
Plea and Disposition
The minor admitted misdemeanor possession of metal knuckles (§ 21810). After the plea, the case was transferred to Alameda Superior Court for disposition. The dispositional report recommended various probation conditions, including the following: (1) "Not use, possess, or be under the influence of any alcoholic beverage or illegal or intoxicating substance, or possess any associated paraphernalia"; and (2) "Not possess, own, or handle any firearm, knife, weapon, fireworks, explosives, or chemicals that can produce explosives." As relevant here, counsel for the minor agreed with the probation department's recommendations and asked the court to "follow" them.
At the September 2015 dispositional hearing, the court adjudged the minor a ward of the court (Welf. & Inst. Code, § 602). It orally imposed the following conditions: (1) Do not "possess, own, or handle any firearm, knife, weapon, fireworks, or chemicals that could produce explosives" (weapons condition); and (2) "Do not use, possess, be under the influence of any alcoholic beverage or illegal drug, or possess any associated paraphernalia" (drug and alcohol condition).
The sentencing minute order and "conditions of probation and court orders" signed by the minor state the probation conditions slightly differently: (1) "Do not use or possess any deadly weapon or explosive device"; (2) "Do not use or possess alcoholic beverages"; and (3) "Do not use or possess narcotics, drugs, other controlled substances, related paraphernalia or poisons unless prescribed by a physician[.]" "When there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls." (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) We review the oral conditions of probation. People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 ["oral conditions of probation control in light of the circumstances"].)
DISCUSSION
I.
The Trial Court's Questions Were Not Improper and Any Assumed Impropriety
Is Not Prejudicial
The minor contends he "was deprived of due process when the court assumed the role of the prosecutor and assisted the prosecution in meeting its burden" of proof at the suppression hearing. This claim is not cognizable on appeal because the minor "did not object to the trial court's questioning[.]" (People v. Harris (2005) 37 Cal.4th 310, 350 (Harris).) The claim also fails on the merits. (Id. at pp. 350-351.)
"Evidence Code section 775 ' " 'confers upon the trial judge the power, discretion and affirmative duty . . . [to] participate in the examination of witnesses whenever he [or she] believes that he [or she] may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.' " ' " (Harris, supra, 37 Cal.4th at p. 350.) Indeed, "it is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved insofar as possible. [Citation.] . . . '[I]f a judge desires to be further informed on certain points mentioned in the testimony it is entirely proper for him [or her] to ask proper questions for the purpose of developing all the facts in regard to them. Considerable latitude is allowed the judge in this respect as long as a fair trial is indicated both to the accused and to the People. Courts are established to discover where lies the truth when issues are contested, and the final responsibility to see that justice is done rests with the judge.' " (People v. Carlucci (1979) 23 Cal.3d 249, 255; see People v. Raviart (2001) 93 Cal.App.4th 258, 270.) The court, however, may not "assume the role of either the prosecution or of the defense. [Citation.] The court's questioning must be '"temperate, nonargumentative, and scrupulously fair.'" [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 597 (Cook).) "We determine the propriety of judicial comment on a case-by-case basis in light of its content and the circumstances in which it occurs." (People v. Cash (2002) 28 Cal.4th 703, 730.)
Evidence Code section 775 provides: "The court, on its own motion or on the motion of any party, may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party. Such witnesses may be cross-examined by all parties to the action in such order as the court directs."
When questioned by the prosecutor, Officer Cabillo testified he patsearched the minor's pockets for officer safety because "it was a gang area" and the minor and his friends were wearing "gang clothing." The prosecutor asked no follow up questions. On cross-examination, when defense counsel asked Officer Cabillo to identify the "gang clothing," the officer referred to the minor's "red rosary" necklace. On the cold record, we cannot discern what tone the court took when questioning Cabillo, or what motivated the court's questions. (People v. Raviart, supra, 93 Cal.App.4th at p. 272 [the trial court is in a "'better position than the reviewing court to know when the circumstances warrant or require . . . [questioning] from the bench'"].)
One explanation, however, is the court intended to clarify what Officer Cabillo meant by "gang area" and "gang attire" — in order to "develop[ ] all the facts" regarding Officer Cabillo's explanation for conducting the patsearch. (People v. Carlucci, supra, 23 Cal.3d at p. 255; People v. Monterroso (2004) 34 Cal.4th 743, 782 [court's questions authorized by Evidence Code section 775; the questions "were for purposes of clarification, not advocacy"]; People v. Hawkins (1995) 10 Cal.4th 920, 948 [trial court's questions clarifying the evidence were proper], abrogated on another point in People v. Lasko (2000) 23 Cal.4th 101.) That Officer Cabillo's answers were not favorable to the minor does not demonstrate the questions were improper. (See Cook, supra, 39 Cal.4th at p. 598 ["answers . . . to the trial court's questions may not have been favorable to the defense, the questions themselves did not create the impression that the court was allied with the prosecution"].)
The minor's reliance on People v. Perkins (2003) 109 Cal.App.4th 1562 is unavailing. There, the judge was "intemperate" in his extensive "examination of [the defendant] during the presentation of his defense" at trial. (Id. at p. 1567.) "[I]n four specific instances, the judge prejudicially interfered with such defense and conducted himself as though he sided with the People." (Ibid.) The judge's questions were " 'argumentative,' " " 'called for speculation,' " and were intended to undermine the defendant's "credibility in the eyes of the jury." (Id. at p. 1570.) Here, the court's questions — at a hearing with no jury present — were neutrally phrased and the questioning was not unduly adversarial or prolonged. Perkins is inapposite. We reach a similar conclusion regarding People v. Santana (2000) 80 Cal.App.4th 1194, where the trial court "repetitiously, disparagingly and prejudicially questioned defense witnesses," its questioning "consumed more time than was necessary to elicit the point the trial court sought to make," and the reporter's transcript created the unmistakable impression" the court "had allied itself with the prosecution in the effort to convict [the defendant]." (Id. at p. 1207, italics added.) No such circumstances are present here.
We also conclude the court's questioning was not prejudicial because it is not reasonably probable the result would have been more favorable to the minor absent any assumed impropriety. (Harris, supra, 37 Cal.4th at pp. 350-351 [applying People v. Watson (1956) 46 Cal.2d 818 standard to similar claim].) Officer Cabillo's testimony regarding gangs was just one of several factors — including the minor's Vehicle Code violation, his clenched fist, and his possession of marijuana — providing a basis for the detention and patsearch.
In Cook, supra, 39 Cal.4th 566, our high court rejected a similar claim and stated, "even were we to assume the court's questions were improper, any error was harmless beyond a reasonable doubt." (Id. at p. 599, citing Chapman v. California (1967) 386 U.S. 18, 24.) Cook did not decide whether the Chapman standard of review applies to claims of improper judicial questioning, nor did the Cook court question its application of the Watson standard of review in Harris, decided the year before. (Cook, at p. 599; Harris, supra, 37 Cal.4th at pp. 350-351.) Because any impropriety in the court's questioning did not violate the minor's constitutional rights, we follow Harris in applying the Watson standard for review of state law error. Our conclusion, however, would be the same under either standard of review.
II.
The Court Properly Denied the Motion to Suppress
Next, the minor claims the court erred by denying his motion to suppress. "The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362; In re H.H. (2009) 174 Cal.App.4th 653, 657.)
A. The Lawful Detention Was Not Unduly Prolonged
The minor concedes he was lawfully detained for violating Vehicle Code section 21456. He contends, however, Officer Cabillo unlawfully prolonged the detention by asking him "to open his clenched hand." "A seizure for a traffic violation justifies a police investigation of that violation. '[A] relatively brief encounter,' a routine traffic stop is 'more analogous to a so-called "Terry stop" . . . than to a formal arrest.' [Citations.] Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission' — to address the traffic violation that warranted the stop, [citation] and attend to related safety concerns, [citations.] Because addressing the infraction is the purpose of the stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' [Citations.] Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. [Citation.]" (Rodriguez v. United States (2015) 575 U.S. ___, 135 S.Ct. 1609, 1614 (Rodriguez).)
Within the span of 10 to 15 seconds, Officer Cabillo got out of the patrol car, detained the minor, and asked him to open his hand. By asking the minor to open his hand, Officer Cabillo was "attend[ing] to related safety concerns[.]" (Rodriguez, supra, 135 S.Ct. at p. 1614.) On the record before us, there is no indication the traffic stop was — or should have been — completed when Officer Cabillo made the request. Even if Officer Cabillo's request was somehow unrelated to the purpose of the detention, it did not unreasonably, unduly, or measurably prolong the stop. (See People v. Gallardo (2005) 130 Cal.App.4th 234, 238 [detention not "unreasonably prolonged" where "only a very few minutes" elapsed between initial contact and search]; People v. Brown (1998) 62 Cal.App.4th 493, 500 ["request to search did not unduly prolong the detention"]; Arizona v. Johnson (2009) 555 U.S. 323, 333 ["inquiries into matters unrelated to the justification for the traffic stop" are permissible "so long as those inquiries do not measurably extend the duration of the stop"].) We reject the minor's claim that the detention was unduly prolonged.
The minor's reliance on Rodriguez is misplaced. This case bears no resemblance to Rodriguez, where the law enforcement officer delayed the conclusion of an otherwise completed traffic stop for seven or eight minutes, to await the arrival of a backup officer. (Rodriguez, supra, 135 S.Ct at p. 1613.) Here, Officer Cabillo asked the minor to open his hand within seconds; defense counsel estimated the entire encounter — from the time the officers saw the minor, to the time the metal knuckles were found — "probably lasted under a minute[.]" Rodriguez does not assist the minor.
Nor are we persuaded by the minor's reliance on People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran), which held a law enforcement officer may not prolong a traffic stop to conduct a warrant check after obtaining all information " 'reasonably necessary' " to perform his duties attendant to the stop. (Id. at p. 587.) McGaughran does not condemn all prolonged traffic detentions, only those which are not justified by " 'specific and articulable facts' " justifying a " 'rational suspicion' " of criminal activity. (See People v. Suennen (1980) 114 Cal.App.3d 192, 200, citing McGaughran, supra, 25 Cal.3d at p. 591.) Here, Officer Cabillo had specific and articulable facts the minor was engaged in criminal activity: he held his fist clenched, in an aggressive manner, suggesting he was hiding something or preparing to strike someone. At the motion to suppress hearing, counsel for the minor acknowledged "[a] fist can be a weapon."
B. The "Search" of the Minor's Hand, and the Subsequent Patsearch Were Lawful
Next, the minor claims the "search" of his hand was not justified by officer safety concerns. "The principles surrounding a patsearch are well settled. A limited, protective patsearch for weapons is permissible if the officer has 'reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' [Citations.] '. . . "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . ." [Citation.]' " (In re H.H., supra, 174 Cal.App.4th at pp. 657-658.)
The Attorney General does not persuasively argue the minor voluntarily opened his hand. The minor contends Officer Cabillo's request for the minor to open his fist exceeded the scope of a permissible patsearch. This claim is forfeited because the minor did not raise it in the trial court. (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1242 [in general, "appellate courts should not consider a Fourth Amendment theory for the first time on appeal"].) The claim also fails on the merits. The scope of a patsearch is generally limited to the discovery of a hidden weapon. (Minnesota v. Dickerson (1993) 508 U.S. 366, 378-379.) Under the circumstances and applying principles of common sense, Officer Cabillo's request for the minor to open his clenched fist was within the scope of the patsearch: Officer Cabillo believed the minor may have been hiding something in his hand. (See, e.g., People v. Superior Court (1971) 15 Cal.App.3d 806, 813 [officer grabbed the defendant's arm and reached into his pocket before patting down the pocket; the officer's actions were " 'almost a reflexive motion, provoked by defendant's sudden gesture' " and " 'as a matter of common sense' . . . were reasonable and lawful"].)
The determination of reasonable suspicion is based on the totality of the circumstances confronting the officer, who must be able to " 'point to specific and articulable facts which, taken together with rational inferences from those facts,' would warrant the intrusion." (People v. Souza (1994) 9 Cal.4th 224, 229-230.) " 'An action is "reasonable" under the Fourth Amendment, regardless of the individual officer's state of mind, "as long as the circumstances, viewed objectively, justify [the] action." [Citation.] The officer's subjective motivation is irrelevant.' " (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
According to the minor, the search of his hand was illegal because he "did not exhibit any suspicious behavior." We disagree. The minor held his arm straight against his side, and his fist was "clenched," as though he "had something in his hand" or was "preparing to strike" Officer Cabillo "or somebody else in the area." Officer Cabillo thought it was "uncommon" for a person "to be walking in that manner" or to keep his hand "clenched for a long period of time." The minor's behavior was undoubtedly suspicious, and the incident took place in an area known for gang activity, where Officer Cabillo and his partner were outnumbered by the minor and his companions. Under the circumstances, Officer Cabillo was justified in asking the minor to open his hand. (In re H.M. (2008) 167 Cal.App.4th 136, 144 [upholding patsearch; "[v]iewed objectively, through the lens of common sense and experience, H.M.'s odd behavior strongly suggested criminal activity was afoot"].)
We reach the same conclusion regarding the patsearch of the minor's pockets. Immediately after observing the suspected marijuana, Cabillo patted down the minor's pants pockets for additional "contraband such as marijuana or marijuana paraphernalia" because "minors are not allowed to possess marijuana." Officer Cabillo also performed the patsearch "for officer safety" because "it was a gang area. The [boys] were wearing gang clothing. One of the three [boys] . . . had been arrested with a knife" a few weeks before the incident. The minor was wearing a red, beaded rosary necklace, which Officer Cabillo thought was gang attire. For these reasons, the patsearch was justified on officer safety grounds: Officer Cabillo had specific and articulable facts the minor could be armed and dangerous. (See People v. Collier (2008) 166 Cal.App.4th 1374, 1378.) That Officer Cabillo was not certain the minor possessed a weapon does not alter our conclusion. As stated above, a law enforcement "officer need not be absolutely certain that the individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger." (In re H.M., supra, 167 Cal.App.4th at p. 143.)
We conclude the court properly denied the minor's motion to suppress. The detention was not unduly prolonged, and the search of the minor's hand and the patsearch of his pockets were lawful. Having reached this conclusion, we need not address the parties' additional arguments regarding the search of the minor's pockets.
The minor contends the search of his pockets was "not justified by the search incident to arrest exception to the warrant requirement." After briefing was complete, the minor directed our attention to People v. Macabeo (2016) 1 Cal.5th 1206 (Macabeo) and we requested and received supplemental briefing on its application, if any, here. Because we do not reach the parties' arguments regarding the search incident to arrest exception to the warrant requirement, we express no opinion on Macabeo's application to this case.
III.
The Weapons Condition Must Be Modified
The minor challenges the weapons probation condition as "vague and overbroad." A juvenile court placing a ward on probation "may impose and require 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).) While a juvenile court has broad discretion in setting probation conditions, "[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.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "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.]" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) " 'The underpinning of a vagueness challenge is the due process concept of "fair warning." ' " (People v. Navarro (2016) 244 Cal.App.4th 1294, 1300.) "A restriction failing this test does not give adequate notice — 'fair warning' — of the conduct proscribed." (In re E.O., supra, 188 Cal.App.4th at p. 1153.) We review the minor's constitutional challenge to this probation condition de novo, notwithstanding his failure to object in the juvenile court. (In re Sheena K., supra, 40 Cal.4th at p. 888; In re Victor L. (2010) 182 Cal.App.4th 902, 907.)
The weapons condition provides: Do not "possess, own, or handle any firearm, knife, weapon, fireworks, or chemicals that could produce explosives." The minor claims this condition is vague because it does not "adequately identify" what is prohibited, and that it is overbroad because "almost anything could be used as a weapon." We agree, and modify the weapons probation condition to prohibit the minor from using, possessing, or handling any firearm, knife, deadly weapon, fireworks, or chemicals that could produce explosives, or any object the minor intends to use as a weapon. (See, e.g., In re R.P. (2009) 176 Cal.App.4th 562, 567 [probation condition precluding possession of a deadly or dangerous weapon was "sufficiently precise" and included "the user's unlawful intent in possessing the object"].)
In supplemental briefing filed after our high court's decision in People v. Hall (2017) 2 Cal.5th 494, the minor abandoned his claim that the weapons condition, and the drug and alcohol condition, should be modified to include an express knowledge requirement. We reject the minor's claim that the drug and alcohol condition articulated in the sentencing minute order is vague because it does not limit " 'drugs' . . . to the use of illegal drugs." As stated above, we review the conditions of probation imposed orally at the dispositional hearing. We conclude the drug and alcohol condition imposed at the dispositional hearing is not vague or overbroad. --------
DISPOSITION
The weapons condition is modified as follows: Do not "possess, own, or handle any firearm, knife, deadly weapon, fireworks, or chemicals that could produce explosives, or any object you intend to use as a weapon." As modified, the judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.