In re Adrianna M.
Filed 9/13/12 In re Adrianna M. CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
In re
ADRIANNA M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIANNA
M.,
Defendant and Appellant.
A133766
(Contra
Costa County
Super. Ct.
No. J11-00142)
Minor
Adrianna M. was placed on probation after a misdemeanor hit-and-run incident,
subject to certain conditions of probation.
(Veh. Code, § 20002, subds. (a), (c).) Six months later, the
conditions of probation. On appeal,
Adrianna challenges the new conditions, contending inter alia that the juvenile
court imposed them without complying with statutory and due process notice and
hearing requirements. (Welf. & Inst.
Code,
§ 778.) We agree and reverse the
order modifying the conditions of probation.
I. FACTS
In November 2010, appellant Adrianna
M. committed misdemeanor hit-and-run driving.
to committing this offense, the 16-year-old was adjudged to be a ward of the
juvenile court. (Veh. Code,
§ 20002, subds. (a), (c).) She was
granted probation, subject to a series of conditions including submission to
probation searches and following her probation officer’s orders. A September 2011 search turned up evidence of
Norteño gang association—some red clothing as well as letters from Norteño gang
members who were incarcerated at county jail and in state prison.
The
results of the search prompted the probation officer to direct Adrianna to stop
associating or communicating with gang members.
She refused. When it became clear
that she would not comply, the probation officer sought a status review hearing
to advise the juvenile court of Adrianna’s possible Norteño gang affiliation
and communications with incarcerated adult males.
On
October 5, 2011, a status hearing was conducted in juvenile court. A report from the probation officer detailing
the results of the search and Adrianna’s lack of willingness to cease gang
association and communication at the probation officer’s request was filed on
the day of the hearing. There is no
indication that the report was provided to Adrianna before that time, nor does
the report specifically request that the juvenile court impose gang conditions
of probation.
At
the hearing, the juvenile court indicated its intention to impose specific gang
conditions of probation at that hearing.
Adrianna’s counsel objected that no new conditions of probation should
be added for various reasons—because no section 777 petition had been filed,
because Adrianna had not violated the original terms of probation, and because
her original offense was not gang-related.
Counsel also sought a contested hearing on the proposed conditions of
probation and an opportunity to cross-examine the probation officer, without
success. Finding that gang conditions of
probation were in Adrianna’s best interests, the juvenile court modified
Adrianna’s probation to impose conditions prohibiting her from participation in
gang-related activity, possession of gang insignia, and use of her cell phone
to transmit gang-related information.
SECTION 778 COMPLIANCE
A.
Forfeiture
Adrianna
contends that the juvenile court erred by imposing new gang conditions of
probation without first complying with the requirements of section 778 and due
process. Section 778 authorizes a
probation officer to petition the juvenile court to change or modify any prior
juvenile court order, based on a change of circumstances or new evidence. If the juvenile court agrees that the proposed
change would be in the best interests of the minor, then a noticed hearing on
the petition is required. (§ 778.)
Before
the juvenile court, Adrianna objected that no section 777 dispositional request
had been filed by the prosecution.
name="_ftnref4" title="">[4] Section 777 requires a noticed hearing before
a placement change. (§ 777, subds.
(a), (b).) On appeal, the Attorney
General asserts that Adrianna forfeited her right to raise her section 778
claim of error on appeal because she objected on section 777 grounds.
This
assertion ignores other objections that Adrianna raised in the juvenile
court—most particularly, her repeated requests for a contested hearing and her
desire to cross-examine the probation officer about the September 2011 search. The requirement that a party make a specific
objection to preserve an issue on appeal must be interpreted in a realistic,
non-formalistic manner. If the objection
fairly informs the juvenile court of the specific reason for it, then the
objection is sufficient to avoid forfeiture on appeal. (See People
v. Partida (2005) 37 Cal.4th 428, 434-435 [evidentiary objection].) We are satisfied that Adrianna’s request for
a contested hearing at which she could cross-examine the probation officer
about the facts underlying the proposed gang conditions of probation was
sufficient to alert the juvenile court that she sought a noticed hearing before
the conditions were added.
B. Procedure
The Attorney General also argues
that section 778 does not apply when the juvenile court adds conditions of
probation. Our reading of the statute
satisfies us that it is applicable to Adrianna’s case. Under that statute, if a juvenile
court—presented with new evidence or a change of circumstances—finds that a
proposed change of a prior order would be in the best interests of the minor,
it must conduct a noticed hearing.
(§ 778; see Cal. Rules of Court, rule 5.560(e)(1) [probation
officer empowered to file section 778 petition].) In the matter before us, the probation
officer did not provide Adrianna with notice in advance of the hearing that
additional conditions of probation would be sought. The probation officer was authorized to file
a section 778 petition, which would have satisfied this
5.560(e)(1).) As the juvenile court
found that the conditions of probation proposed at the hearing were in the
minor’s best interests, a hearing was required to comply with statutory and due
process requirements. (
604, 607.) The order modifying the
conditions of Adrianna’s probation must be reversed.
C. Substantive
Claims of Error
This matter must
be remanded to the juvenile court to comply with the notice and hearing requirements
of section 778 and due process. As such,
we need not address Adrianna’s substantive objections to the gang conditions of
probation—that these conditions were not reasonably related to her
rehabilitation; that they are overbroad; and that they impinge on her
within the authority of the juvenile court to impose, in an appropriate
case. The evidence adduced at a
subsequent hearing could establish whether these conditions were appropriate in
Adrianna’s case. (See, e.g.,
1496, 1501, disapproved on other grounds in In
re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2.)
The
order modifying the conditions of probation is reversed and the matter is
remanded for further proceedings consistent with this decision.
_________________________
Reardon,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Sepulveda, J.
name="_ftn1" title=""> [1]
All subsequent statutory references are to the Welfare and Institutions Code
unless otherwise specified.
name="_ftn2" title=""> [2]
A second allegation of driving without a license was dismissed. (Veh. Code, § 12500, subd. (a).)
