Filed 8/14/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re C.M., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
A175119
Plaintiff and Respondent,
v. (City & County of San Francisco
Super. Ct. No. JW23-6300)
C.M.,
Defendant and Appellant.
C.M. was declared a ward of the court and placed on home probation.
As a condition of probation, the juvenile court granted the juvenile probation
department the authority to add or remove an electronic monitoring device
for up to 30 days without further court approval. The court order neither
specified the grounds for placing the electronic monitoring device nor the
grounds for having the device removed. The sole requirement was that the
probation department provide 48 hours’ notice to all counsel.
As the probation condition allows the probation department to impose
or remove electronic monitoring without a judicial hearing and finding that
such a change is necessary, it constitutes an impermissible delegation of the
juvenile court’s authority and responsibility. Accordingly, we reverse.
1
FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise indicated, all dates refer to 2025.
On November 2, C.M., then 16 years old, was arrested in San Mateo
County for assaulting an older male. At the time, C.M. was on probation for
a prior juvenile wardship adjudication in San Francisco.
Wardship Petition
On November 24, the San Mateo County District Attorney filed an
amended juvenile wardship petition (Welf. & Inst. Code, § 602; all further
undesignated statutory references are to this code) alleging C.M. committed
felony assault by means likely to produce great bodily injury (Pen. Code,
§ 245, subd. (a)(4)), misdemeanor battery on an elder or dependent adult (id.,
§ 243.25), and misdemeanor battery (id., § 242).
That same day, pursuant to a negotiated disposition, C.M. admitted he
committed misdemeanor battery (Pen. Code, § 242), the remaining charges
were dismissed, and the court sustained the amended petition.
Transfer to San Francisco
C.M. was found to be a San Francisco resident and the case was
transferred to San Francisco for disposition.
On December 2, the San Francisco Juvenile Court (the court) held a
transfer-in detention hearing and placed C.M. on home detention pending
disposition. The record indicates that, although C.M. previously had an
electronic monitoring device, the court released him on home detention
without such a device.
Disposition Hearing
At the December 16 disposition hearing, the court redeclared C.M. a
ward of the court and placed him on home probation in his mother’s custody.
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As one of the conditions of probation, “[t]he Juvenile Probation
Department [was] given the right to add or remove the electronic monitoring
device not to exceed 30 days without further court approval. All counsel shall
be notified 48 hours in advance if the device is removed or added.”
This condition was entered over C.M.’s objections, which included that
the proposed condition impermissibly transfers a judicial function to the
probation department, is unconstitutionally vague, and lacks sufficient due
process protections as it does not provide for written notice and a hearing.
The district attorney took the position that the condition was both standard
and appropriate given C.M.’s prior failure to comply with the terms of his
probation.
Regarding the objections, the court stated: “So as you know at our
hearing that we had on December [2nd] . . . the court released you with no
ankle monitor on. So that’s something that I know was really important to
you because of sports and I don’t want to have to have Probation have to put
it back on. [¶] I am going to give them the right to request a hearing with the
court to have it added back on, but they’ll be required to give 48 hours[’]
notice to the attorneys before the device is removed or added.”
C.M.’s counsel sought clarification from the court, noting the court had
stated it was only giving probation the right to request a hearing, but not to
add the device prior to the hearing.
The court explained it was imposing the condition as proposed by the
probation department: “The way that the condition reads here as I’m reading
it is that, ‘The Juvenile Probation Department is given the right to add or
remove [an] electronic monitoring device not to exceed 30 days without
further court approval. All counsel shall be notified 48 hours in advance if
the device is removed or added.’ [¶] ‘In advance’ being the key part of the
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program in the condition as recommended by Probation and adopted by the
court.” The written terms and conditions of probation reflect this oral
pronouncement.
DISCUSSION
The question before us is whether the court improperly delegated its
authority by giving the probation department the right to decide whether
C.M. would be subject to electronic monitoring. The answer is yes.
I. Applicable Legal Principles
When a juvenile court declares a minor a ward of the court under
section 602 and places the minor under the supervision of a probation officer,
the court “ ‘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 . . .’ (§ 730, subd. (b)),”
and the court has “significant flexibility to fashion its rehabilitative
mandates and conditions.” (In re D.N. (2022) 14 Cal.5th 202, 206 (D.N.).)
Conditions that encroach on constitutional rights must be carefully tailored
and reasonably related to the state’s interest in rehabilitating delinquent
youth. (In re Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).) And any
condition of probation “ ‘must be sufficiently precise for the probationer to
know what is required of him [or her], and for the court to determine whether
the condition has been violated.’ ” (In re Sheena K. (2007) 40 Cal.4th
875, 890.)
There are clear statutory procedures pursuant to which the probation
department, the prosecution, or any other interested person may seek to
modify the terms of a minor’s probation, such as the imposition or removal of
electronic monitoring. All these procedures require formal notice and a
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hearing before the probation order is modified. (§§ 777, subds. (a) & (c), 778,
subd. (a).)
If the probation department or the prosecution wish to change the
terms of a minor’s probation, including to address an alleged probation
violation, they must petition the court to modify the disposition order under
either section 777 (if seeking removal from the custody of a parent, guardian,
relative, or friend and placement in more restrictive setting) or section 778
(for any other modification). (D.N., supra, 14 Cal.5th at p. 207.) Any other
interested person (such as a parent or the minor through a guardian) may
also seek to change or set aside the disposition order pursuant to section 778.
(§ 778, subd. (a)(1).)
Therefore, it is for the juvenile court to determine violations and set
conditions of probation. But because the juvenile court is not in the role of
supervising juvenile probationers on a day-to-day basis, it “may place
significant supervisory discretion in the probation department’s hands, at
least when the department’s decisions are subject to judicial review.” (D.N.,
supra, 14 Cal.5th at p. 208.)
The “general rule [is] that a court may dictate the basic policy of a
condition of probation, leaving specification of details to the probation
officer.” (Victor L., supra, 182 Cal.App.4th at p. 919.) So long as the
supervisory discretion granted to the probation department is properly
limited, it does not run afoul of the separation of powers doctrine (Cal. Const.,
art. III, § 3), which mandates that judicial powers may not be completely
delegated to nonjudicial officers, including probation officers. (In re Travis J.
(2013) 222 Cal.App.4th 187, 194, fn. 3; see In re Pedro Q. (1989) 209
Cal.App.3d 1368, 1372 [“It is well settled that courts may not delegate the
exercise of their discretion to probation officers.”].)
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Caselaw thus distinguishes between those conditions that permissibly
delegate some degree of discretion to the probation department while the
juvenile court retains ultimate authority over the minor’s supervision and
control, and those that improperly delegate judicial authority by “giv[ing]
nonjudicial persons or institutions complete discretion over a significant
aspect of the court’s legal control of the minor.” (D.N., supra, 14 Cal.5th at
p. 209; see id. at pp. 208–209 [collecting cases].)
For example, courts have found no improper delegation of authority
where a condition permitted the probation department to supervise a minor’s
progress in a court-ordered custodial program in juvenile hall on a day-to-day
basis, even though successful completion of the program could lead to an
earlier release from commitment, provided the juvenile court retained the
ultimate authority to determine whether the program was successfully
completed. (In re I.M. (2020) 53 Cal.App.5th 929, 933–936; In re J.C. (2019)
33 Cal.App.5th 741, 747–748.)
On the other hand, courts have found impermissible a travel restriction
unilaterally imposed by the probation department. (In re Pedro Q., supra,
209 Cal.App.3d at pp. 1371–1372.) Also found impermissible was a condition
that “vested absolute discretion in the probation officer to determine if and
when a violation of probation occurred” during a minor’s postcustody
“aftercare” program, which could lead the minor to be returned to a
correctional academy for 30 days. (In re Gabriel T. (2016) 3 Cal.App.5th 952,
960; see id. at pp. 958, 960–961.)
With these legal principles in mind, we turn to the merits of C.M.’s
constitutional challenge to the probation condition, which we review de novo.
(In re J.B. (2015) 242 Cal.App.4th 749, 754.)
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II. The Challenged Condition Impermissibly Delegates Judicial
Authority to Probation
We conclude that deciding whether to impose electronic monitoring
represents “a significant aspect of the court’s legal control of the minor” and
the condition in this case impermissibly delegates “complete discretion” to the
probation department to make that determination without sufficient due
process protections. (See D.N., supra, 14 Cal.5th at p. 209 [reviewing cases in
which delegation was found improper because complete discretion was given
to nonjudicial persons or institutions over a significant aspect of the court’s
legal control of the minor].)
A. Significant Aspect of Control of the Minor
Electronic monitoring is defined as “technology used to identify, track,
record, or otherwise monitor a minor’s location or movement through
electronic means.” (§ 628.2, subd. (a)(2).) It provides the ability to know the
minor’s location at all times. (In re R.V. (2009) 171 Cal.App.4th 239, 247
[affirming monitoring provision that was imposed by the juvenile court and
tailored to meet the minor’s needs].)
We find electronic monitoring of wards of the juvenile court under
section 602 (like C.M.), which is governed by section 628.2, to be a significant
aspect of the court’s legal control over minors. It is difficult to imagine how
monitoring could be deemed an insignificant or incidental aspect of
supervision as it allows the probation department (and ultimately the court)
to know where the minor is at all times, is a tool for enforcing home
detention, requires the physical presence of a monitor, and puts the minor at
risk of immediate arrest for technical compliance errors (such as forgetting to
charge the device).
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Indeed, our Legislature has recognized the gravity of the imposition of
electronic monitoring of minors. Section 628.2 was implemented by Assembly
Bill No. 2658 (2021–2022 Reg. Sess.) (Assembly Bill 2658). (Stats. 2022,
ch. 796, §§ 2–3).1 The Legislature stated its intent was “to recognize the
potential harms of electronic monitoring for youth, and to subject the use of
electronic monitoring to limitations and regular judicial review.” (Id., § 1(e).)
It further found that electronic monitoring is “highly restrictive” and can
“make it burdensome for youth to work, attend family events, run errands for
family, participate in programming, play sports, or engage in any
unscheduled activity, including medical and mental health appointments.”
(Id., § 1(b).) The bill’s sponsor indicated that, while electronic monitoring is
“[o]ften viewed as an alternative to incarceration, this type of intensive
surveillance is actually an alternative form of incarceration that often
subjects youth to considerable harm.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 2658 (2021–2022 Reg. Sess.)
as amended June 15, 2022, p. 7.)
To ensure ongoing judicial review, section 628.2 prohibits electronic
monitoring for more than 30 days without a court hearing: “[T]he court shall
hold a hearing no less than once every 30 days to ensure that the minor does
not remain on electronic monitoring for an unreasonable length of time.”
(§ 628.2, subd. (d).) At such a hearing, the court must consider whether less
restrictive conditions would achieve the court’s rehabilitative purpose; if so,
the statute requires removal of the electronic monitor or modification of the
1 On our own motion, we take judicial notice of the legislative history of
Assembly Bill 2658 (see Gananian v. Wagstaffe (2011) 199 Cal.App.4th 1532,
1541, fn. 9), specifically the committee and floor analyses, as well as the bill’s
legislative findings, for use as an interpretive tool (People v. Superior Court
(Farley) (2024) 100 Cal.App.5th 315, 331).
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terms of electronic monitoring to achieve the less restrictive alternative.
(Ibid.) It further provides that minors are entitled to custody credits applied
toward the minor’s maximum term of confinement for each day spent on
electronic monitoring. (Id., subd. (c).)
Section 628.2 requires the California Department of Justice to collect
various data regarding the use of electronic monitoring, as specified in Penal
Code section 13012.4 (implemented by the same Assembly Bill as section
628.2), which includes reporting the annual number of minors and the total
number of days minors are placed on electronic monitoring. (§ 628.2,
subd. (e); Pen. Code, § 13012.4, subd. (a)(1).) The report must also provide
the reasons for placing or reinstating electronic monitoring. (Pen. Code,
§ 13012.4, subd. (a)(3).)
In sum, section 628.2 and Assembly Bill 2658 underscore that
electronic monitoring is a highly restrictive form of supervision with
significant potential harm to minors, thus warranting strict judicial
oversight, transparency via stringent data reporting, and custody credit for
every day a minor is subjected to it.
As we turn to the question of whether the probation order in this case
was an impermissible delegation of judicial authority and responsibility, we
note that nothing in section 628.2 or its legislative history states or implies
that the imposition of electronic monitoring for under 30 days is permissible
absent a court hearing and order.
B. Impermissible Delegation of Judicial Authority
The probation condition before us fails to ensure that the juvenile court
be the one to determine whether C.M. is subject to electronic monitoring.
(See Victor L., supra, 182 Cal.App.4th at p. 919.) Instead, it vests full
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decision making authority in the probation department, subject only to
providing counsel with 48 hours’ notice. It is therefore impermissible.
People v. Cruz (2011) 197 Cal.App.4th 1306 (Cruz) is informative,
despite arising in the adult probation context. Cruz found Penal Code section
1210.12, granting a county chief probation officer “ ‘sole discretion’ ”
(consistent with the conditions of probation) to decide which persons are
subject to electronic monitoring, violates the separation of powers doctrine.
(Cruz, at pp. 1309–1311.) Cruz emphasized that the power to decide whether
to impose electronic monitoring as a condition of probation rests with the
court. (Id. at p. 1311.) While the probation condition here does not divest the
juvenile court of authority in the same manner as Penal Code section
1210.12, it nonetheless gives the probation department full discretion to
determine whether C.M. is subject to electronic monitoring for up to 30 days
at a time, based on whatever criteria the probation department deems
appropriate.
Contrary to the Attorney General’s contention, D.N. does not support a
finding that the condition in this case is permissible despite the authority
being vested in probation. In D.N., the California Supreme Court upheld a
juvenile court order that authorized the probation department, in the event of
an alleged violation of probation, to offer a minor the option, which the minor
was free to reject, to perform up to 50 hours of community service in lieu of
the department pursuing a formal court proceeding. (D.N., supra, 14 Cal.5th
at pp. 210–215.) The order also gave the probation department very limited
discretionary power to set the details of the community service, which the
minor could decline and instead return to court if he believed they were
inappropriate for the alleged violation or wished to contest the allegation
itself. (Id. at pp. 213–214.) Thus, the Supreme Court found the condition did
10
not deprive the minor of due process because the minor could opt to perform
community service or to return to court, where he would be entitled to the
formal notice and hearing process required by section 777 or 778. (D.N., at
p. 214.)
The order before us does not offer C.M. any choice. This critical
difference is not negated by the commentary in D.N., in dicta, that it was
unclear whether the court “intended to authorize probation to offer additional
[electronic] monitoring, as well as community service, as an option to clear an
alleged violation” but “[t]o the extent it did, . . . there is no indication that the
terms of that provision were any different from the community service
provision—that is, an offer that the minor could accept or reject.” (D.N.,
supra, 14 Cal.5th at p. 215.)
Moreover, the condition does not provide C.M. any guarantee of judicial
review of the probation officer’s decision to impose electronic monitoring for
up to 30 days. As C.M. correctly points out, this runs afoul of the statutory
requirements in sections 777 and 778 requiring the probation department to
petition the court and providing for notice and a hearing before implementing
any change to a minor’s probation terms. (§§ 777, subds. (a) & (c), 778,
subd. (a); see D.N., supra, 14 Cal.5th at p. 214 [“A juvenile court order that
permitted the probation officer to make a finding of a probation violation and
impose a sanction for the violation without providing the minor notice or an
opportunity to be heard, and without a requirement that the People prove the
violation by a preponderance of the evidence would, at the least, raise serious
due process questions.”].)
The Attorney General asserts that providing 48 hours’ notice to counsel
affords sufficient safeguards by giving C.M. “the opportunity to seek judicial
intervention,” noting that C.M. himself could file a petition to modify the
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terms of probation. This argument flips the statutory scheme in sections 777
and 778 on its head; instead of requiring the probation department to file a
petition for modification, it would put the onus on C.M. to request a
hearing—and hope that he could be heard in the limited hours between the
filing of a request and 48 hours after notice to counsel was provided. We will
not endorse a condition that flies in the face of the statutory requirements
and the due process they afford.
As stated by our Supreme Court in D.N., an order permitting “the
probation officer to find a violation of probation and impose a sanction
without minor having notice, an opportunity to be heard, or any form of
judicial process” raises constitutional concerns as to impermissibly delegating
judicial power without sufficient due process. (D.N., supra, 14 Cal.5th at
p. 210.) That is precisely the type of order before us in this case. Deciding
whether to impose electronic monitoring is a significant aspect of the court’s
legal control of the minor. And a probation condition that gives complete
discretion to the probation department to make that determination without
judicial oversight or the due process protections imbued in sections 777 and
778—even for a period of up to 30 days—is an impermissible delegation of
judicial authority. (See D.N., supra, 14 Cal.5th at p. 209.)
Compounding the impropriety of delegating the decision of whether to
impose or remove electronic monitoring, the probation condition is devoid of
guardrails. It does not specify what triggering conduct by C.M. would qualify
for electronic monitoring—whether it must be a significant violation of
probation, a mere technical one, or, for that matter, whether it must be a
violation of probation at all. For example, the condition would permit the
probation department to set some arbitrary standard for requiring electronic
monitoring—in effect creating a new condition of probation, such as getting
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certain grades in school. Therefore, the condition is also impermissibly vague
as it does not provide fair warning to C.M. as to what is required of him to
avoid being subject to electronic monitoring. (See In re Sheena K., supra, 40
Cal.4th at p. 890.)2
DISPOSITION
The December 16, 2025 disposition order is reversed. The case is
remanded with instructions for the juvenile court to amend or remove the
electronic monitoring condition consistent with this opinion.
PETROU, J.
WE CONCUR:
TUCHER, P. J.
RODRÍGUEZ, J.
A175119 / In re C.M.
2 We do not reach the question of whether the probation condition
would be permissible if it contained specific criteria for placing electronic
monitoring on C.M. and/or some degree of judicial oversight. However, we
note that the condition’s primary shortcoming is the failure to provide due
process or judicial oversight over a judicial function delegated to a nonjudicial
party, which is only amplified by its vagueness.
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Trial Court: City and County of San Francisco Superior Court
Trial Judge: Hon. Anne Costin
Counsel:
Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Katie L.
Stowe, Deputy Attorney General, and Alisha M. Carlile, Deputy Attorney
General, for Plaintiff and Respondent.
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