NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RAMIREZ, P. J.

The juvenile court found that defendant and appellant P.M. (minor) had damaged property, in an amount less than $400, by defacing it with graffiti (Pen. Code, § 594, subd. (b)(2)(A), para. 1) and that he had possessed a felt tip marker, an aerosol paint container, or other marking substance with the intent to commit graffiti (Pen. Code, § 594.2, subd. (a), para. 2). However, the active petition actually alleged in paragraph 2 that minor had unlawfully possessed an aerosol container in violation of Penal Code section 594.1, subdivision (e)(1). At the dispositional hearing, minor was declared a ward and, subject to probation conditions, continued in the custody of his parents. Minor challenges the paragraph 2 finding on multiple grounds relating to the finding being different than the alleged violation. Minor further contends two of the probation conditions are unconstitutionally overbroad and that a maximum term of confinement should not have been pronounced because he was not physically removed from his home. We reverse the paragraph 2 finding, modify the two probation conditions, and otherwise affirm.

BACKGROUND

On May 19, 2010, a witness saw three juveniles using markers to write on a fence. The witness saw minor writing on a gate with a large marker.

A responding police officer testified that two words were written on the gate. Minor admitted that one of the words was his moniker; another juvenile admitted that the other was his moniker. The officer found seven paint markers in minor's backpack. However, none of the paint markers in minor's backpack matched the paint on the gate; the paint matched a bottle of blue paint found in the pocket of one of the other juveniles. Minor's backpack was marked with the initials of a known graffiti crew. Minor's hands had "fresh blue paint which was sticky to the touch and was bright blue in color."

Minor testified that one of the other boys was "tagging." Minor did not do any tagging that day; however, he had asked to look at the paint bottle because his friend had made the paint bottle into a paint marker by himself. Minor carried markers in his backpack to "paint on paper," which he then keeps or gives to his mother. He denied being a member of the tagging crew whose initials were on his backpack.

The parties submitted without any closing argument. The trial court found the allegations true beyond a reasonable doubt: "The fact that the first witness observed this minor standing up next to the wall making motions that would appear that he was writing on the wall. Second of all, that the minor has blue paint on his hand, fresh paint that matches the blue paint on the wall. And the fact that his moniker is on the wall. [¶] There is only one reasonable inference that can be drawn from the totality of the testimony. This minor was basically defacing the wall. The first witness saw him doing that. [¶] It's unreasonable to assume that the other individual, who probably also did some graffiti with his moniker, would be the one that placed this minor's moniker on the wall. It's unreasonable. And the fact that he has got blue paint on his hands matching the paint on the wall, the reasonable inference is that this minor was basically defacing the property by placing his moniker on the wall."

The juvenile court then found the paragraph 1 allegation to be true. Regarding the paragraph 2 allegation, the juvenile court stated: "I'm not sure that charge [Penal Code section 594.1, subdivision (e)(1)] is the valid charge. He basically has possession of the instruments committing graffiti, markers. He didn't have an aerosol. There is no testimony of that." The prosecutor then started to ask the court to interlineate the charges in the petition; minor's trial counsel interjected that "it's too late to change the charges." The juvenile court disagreed: "No, it's not because I can modify the charge to conform with the evidence." Minor's counsel disagreed. The prosecutor then suggested "[Penal Code section 594, subdivision (a)(1)], etching creams." The juvenile court then stated, "There is a section related to possession of graffiti paraphernalia." The prosecutor identified that section as Penal Code section 594.2 and recited some of the items listed in that section, including "aerosol paint, or felt tip markers, or any other marking substance." The juvenile court then stated, "It's 594.2. And the Court finds that is true because the evidence supports that. And that's a misdemeanor. So the Court finds 594.2 of the Penal Code, a misdemeanor, occurring on May 19, 2010 . . . . He was unlawfully in possession of graffiti paraphernalia, specifically markers and paint, which is evidenced by the paint on his hand. [¶] Paragraph 1 is a one-year misdemeanor. Paragraph 2 is a six-month misdemeanor. So the total time is one year and two months."

The copy of the petition was annotated to cross out "594.1, subdivision (e), subsection (1)," and to state "594.2"; the factual allegations were also crossed out and "Markers, Bits, etc." was written below it.

At the dispositional hearing held over a month later, minor was declared a ward and, subject to probation conditions, continued in the custody of his parents. At the disposition hearing the juvenile court did not state a maximum period of confinement; similarly the minutes do not state a maximum period of confinement.

UNALLEGED FINDING

Minor contends the petition was not amended to include an allegation that he violated Penal Code section 594.2 and if the petition is deemed amended, the section 594.2 finding was improper and violated his rights to due process. The People agree that either the petition was not amended or that any such amendment violated minor's due process rights. They are correct because due process mandates that a "minor `be notified, in writing, of the specific charge or factual allegations to be considered at the hearing.'" (In re Robert G. (1982) 31 Cal.3d 437, 442.) Thus, "a wardship petition . . . may not be sustained upon findings that the minor has committed an offense or offenses other than one specifically alleged in the petition or necessarily included within an alleged offense, unless the minor consents to a finding on the substituted charge." (Id. at p. 445.) Here, minor did not consent and, as the parties agree, under the statutory elements and accusatory pleadings tests (see People v. Birks (1998) 19 Cal.4th 108, 117) Penal Code section 594.2, subdivision (a), is not a necessarily included lesser offense of Penal Code section 594.1, subdivision (e)(1). Accordingly, the paragraph 2 finding must be reversed.

PROBATION CONDITIONS

Among the probation conditions imposed upon minor were: (1) "Not knowingly possess, consume, inhale, or inject any intoxicants, alcohol, narcotics, aerosol products, or other controlled substances, poisons, illegal drugs, including marijuana, nor possess related paraphernalia"; and (2) "Not associate with anyone known to the minor to . . . possess[], sell[], or use[] any controlled substances or any related paraphernalia."

Minor contends these two conditions are unconstitutionally vague and overbroad because they would prohibit him "from using or possessing or being under the influence of a controlled substance legally prescribed for him and would prohibit him from associating with anyone who used or possessed or was under the influence of a controlled substance legally prescribed for him/her." The People doubt whether a probation official would attempt to hold minor in violation for an issue involving a valid prescription, or that a juvenile court would sustain a violation allegation involving a valid prescription; nonetheless they do not object to modifying the conditions to exclude valid prescriptions.

A "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." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In addition, a "condition `must be sufficiently precise for the [minor] 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 [constitutional] challenge on the ground of vagueness. [Citation.]" (Ibid.)

The conditions have the purpose of protecting minor from drug abuse and the influence of drug dealers and abusers. However, they are written so broadly that they may prohibit minor from possessing or using medically necessary prescribed medication, or associating with persons using medically necessary prescription medications. We ascertain no rehabilitative purpose in such restrictions. Therefore, we shall modify the probation conditions by adding exceptions for medically necessary prescribed medications.

STATEMENT OF MAXIMUM TIME OF CONFINEMENT

Minor contends the juvenile court erred by setting a maximum term of confinement because he was not removed from the custody of his parents. Specifically, he contends that under In re Matthew A. (2008) 165 Cal.App.4th 537, 541-542 (Matthew A. ), the maximum term of confinement should be stricken. The People contend the statement of the maximum time minor could be confined need not be stricken because it had no legal effect and has not prejudiced minor. We agree with the People.

"When a minor is removed from the physical custody of his parent or custodian as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses. [Citation.]" (Matthew A., supra, 165 Cal.App.4th at p. 541; see also Welf. & Inst. Code, § 726, subd. (c).)

In Matthew A., the minor was placed at home on probation, but the court nonetheless set a maximum term of confinement. (Matthew A., supra, 165 Cal.App.4th at p. 541.) The appellate court noted the lower court's error in doing so and ordered that the maximum confinement term set by the juvenile court be stricken because "criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect." (Id. at pp. 541-542.)

In In re Ali A. (2006) 139 Cal.App.4th 569, 572-574 (Ali A. ), the minor was declared a ward of the court, granted probation, and placed in the custody of his parents. The juvenile court stated the maximum term of confinement was three years. (Id. at p. 572.) The Court of Appeal concluded the juvenile court was not required by Welfare and Institutions Code section 726, subdivision (c), to include a maximum term of confinement in its dispositional order. Accordingly, the appellate court held that the maximum term of confinement contained in the dispositional order was "of no legal effect." (Ali A., at pp. 573-574.) The court concluded the minor was not prejudiced by the presence of the term and there was no basis for remand. (Id. at p. 574.) The court further noted any risk that a later judge might believe he or she was required to impose the three-year maximum term contained in the dispositional order was obviated by the presence of the appellate opinion in the record. (Id. at p. 574, fn. 2.)

At the jurisdictional hearing, the juvenile court sustained the petition and stated "Paragraph 1 is a one-year misdemeanor. Paragraph 2 is a six-month misdemeanor. So the total time is one year and two months." At the dispositional hearing, held over a month later, minor was declared a ward and continued in the custody of his parents. In this context, we follow Ali A. and hold that the statement of maximum confinement was of no legal effect. This is because: the statement was made prior to any determination as to the disposition of minor's case; the statement was not entered into the dispositional (or any other written) order; and Welfare and Institutions Code section 726, subdivision (c), was not triggered due to minor being continued in parental custody. Therefore, no corrective action is necessary.

DISPOSITION

The finding on the paragraph 2 allegation is reversed.

The following two probation conditions are modified to insert "except for medically necessary prescriptions" at the end of each condition:

In all other respects, the judgment is affirmed.

HOLLENHORST, J. and RICHLI, J., concurs.