In re Carlos G.
Filed 5/13/13 In re Carlos G. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re CARLOS G., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS G.,
Defendant and Appellant.
D062787
(Super. Ct.
No. J232117)
APPEAL from
a judgment of the Superior Court
of
County, Carlos O. Armour, Judge. Affirmed as modified.
Law Office
of Alissa L. Bjerkhoel and Alissa L. Bjerkhoel, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia and Elizabeth M. Carino,
Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to
a plea agreement, Carlos G. (Minor)
admitted count 1 in a juvenile court petition, which alleged he imported a
controlled substance in violation of Health and Safety Code section 11379,
subdivision (a). Thereafter the court
dismissed the remaining counts and allegations with a
waiver.
At the
disposition hearing, the court placed the Minor on probation subject to a 60 to
90-day commitment to the short term offender program (STOP) and a number of
other conditions. The Minor, who is a U.S.
citizen, was placed with his mother in Tijuana,
Mexico.
The Minor
appeals contending the juvenile court erred in failing to calculate the Minor's
predisposition custody credits and that one of the probation conditions is
unconstitutionally vague and overbroad.
We agree the court was required to calculate the Minor's predisposition
custody credits, although such credits would not serve as a deduction from the
time required to participate in the STOP program. Otherwise, we will reject the Minor's
remaining contention and affirm.
STATEMENT
OF FACTS
Since the
Minor does not challenge the factual basis for his admission, we will only
summarize the facts of the offense in order to provide context for the
discussion which follows.
On August 24, 2012, the Minor attempted
to enter the United States
from Mexico. He was contacted by U.S.
agents who discovered the Minor had 3.2 pounds of methamphetamine in various
packages taped to his legs.
The Minor
waived his Miranda
rights and admitted he was intentionally bringing an illegal substance into the
country. He said he was going to be paid
$700 for his work.
DISCUSSION
I
At the
disposition hearing the juvenile court did not calculate the time the Minor
spent in custody prior to that hearing.
The parties agree that the Minor spent 32 days in custody prior to the
The Minor
contends he is entitled to have 32 days calculated as a credit against his
maximum term of confinement. (
Cal.App.4th 1058, 1067; In re
Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079.)
In the
respondent's brief, the People first contend the Minor is not entitled to a
credit calculation because he was not ordered to serve the maximum
custody. We think the respondent
misunderstood the Minor's contention. As
the Minor makes clear in his reply brief, he is not arguing for a credit
against the time he was ordered to spend in the STOP program. Rather, he simply asks that the actual
credits be calculated so that if he ever violates probation, his time in
predisposition custody will have been established.
We agree
the Minor is entitled to the calculation of custody credits, indeed it is the
juvenile court's duty to make such calculation.
(In re Emilio C.,
Since the
parties are in agreement that the Minor is entitled to 32 days of
pre-disposition credits, we order the juvenile court to modify its
dispositional order to reflect the Minor is entitled to 32 days of
predisposition credits against the maximum term for which he may be liable
based on the true finding. (
Cal.App.4th 756, 764.)
II
The Minor
contends, for the first time on appeal, that one of his probation conditions is
vague and overbroad. Specifically, he
challenges the condition imposed by the juvenile court that when he crosses the
international border, he must notify "the agents at the border that he is
on probation in the United States
for smuggling methamphetamine across the border." The Minor did not object to the condition and
told the court he understood the requirements of the condition.
The Minor
now contends he was not required to object to the condition and that the
condition is vague because he might not know which, or how many agents "at
the border" he must inform of his probation condition. He further argues that so informing agents
will likely subject him to searches and delays in crossing the border, which is
a de facto banishment.
First, we
find the issue forfeited for failure to object.
Second, we are satisfied the condition is not vague and that the
condition is directly related to his rehabilitation from the current offense. Finally, we reject the argument that he will
be effectively banished from the country if he is subjected to possible
searches when he crosses the border.
A. Standard of Review
Juvenile
courts exercise wide discretion in structuring conditions of probation for
minors. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) We review the juvenile court's decision to
impose probation conditions under the abuse of discretion standard. (In re
Antonio R. (2000) 78
Cal.App.4th 937, 941.) A condition
that might be unconstitutional as to an adult may be appropriate for a minor
under the supervision of the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
B. Legal Principles
As an
ordinary proposition, a person may not challenge a condition of probation for
the first time on appeal. Ordinarily, an
objection in the trial court is necessary to preserve the issue for appellate
review. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) There are circumstances, however, where a
probation condition may be challenged on appeal without having objected in the
trial court. (In re Sheena K., supra, 40 Cal.4th at p. 888.) However, the exception carved out in
essentially legal in nature, akin to a facial challenge for vagueness or for
overbroad intrusions into otherwise lawful activities. (Id.
at p. 890.) The court in
should object to such conditions in order to allow the trial court to correct
any problem that may exist. (
A condition
of probation is not overbroad if it is narrowly tailored and reasonably related
to the minor's underlying crime and his rehabilitation. (Alex
O. v Superior Court (2009) 174 Cal.App.4th 1176, 1183.) In order for a condition to be constitutionally
overbroad it must impose some concrete impairment on constitutionally protected
conduct. (People v. Rubalcava (2000) 23 Cal.4th 322, 333.)
The right
to travel is a protected interest, and unnecessary restrictions on that right,
including effective banishment from a state or the country, can be
unlawful. (In re James C.
(2008) 165 Cal.App.4th 1198, 1203.)
On the other hand, a minor's right to travel can be reasonably
restricted to the extent necessary to aid in the minor's rehabilitation. Thus, in Alex
O. v Superior Court, supra, 194 Cal.App.4th 1176, the court approved a
condition requiring the minor to notify his probation officer before entering
the United States. (Id. at p. 1183.)
Finally, as
to vagueness, the term of probation must be sufficiently precise for the minor
to know what is required, and for the court to know when such condition has
been violated. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
C. Analysis
Starting
first with forfeiture, we are satisfied this case does not fall within the
exceptions to the requirement for objection in the trial court. The questions raised here are not really
issues of law, which can be resolved without reference to the facts of the
case. The condition is plainly directed
to preventing the very criminal activity which brought the Minor into the
juvenile justice system. He clearly
needs to be deterred from such conduct.
The court had also imposed a search and seizure condition on him before
requiring the Minor to also notify border agents about his probation condition.
The
arguments the Minor makes here include the claim he might get searched at the
border and that might work a banishment.
He also argues he might not know how many agents to notify. Yet he told the court he understood the
condition, and without challenge has agreed to subject himself to search
without warrant or probable cause.
So, to try
to discern vagueness or alleged over breadth of the condition we have to look
at the facts of the offense, and the relationship of this condition to the
offense and whether the Minor was informed of what he must do. Contemporaneous objection would have allowed
the court and counsel to address any uncertainty or to make such modifications
as would have allowed the court to more narrowly tailor its action if
appropriate. In re Sheena K, supra, 40 Cal.4th 875, does not overrule the
requirements of People v. Welch, supra,
5 Cal.4th 228. Accordingly we find
the challenge to this condition was forfeited by failure to raise the issue in
the juvenile court. However, out of an
abundance of caution we will consider the challenges to the condition on the
merits.
Dealing
first with vagueness, the Minor argues the condition is vague because he might
not know which or how many agents "at the border" he must
inform. Of course, the Minor, who
regularly crosses the border, did not express any doubts. The obvious import of the requirement of
notification is so that government agents working at the border with whom the
Minor has contact know he is on probation for smuggling. While it is always possible to speculate as
to hypothetical circumstances, we think a common sense reading of the condition
clearly directs the Minor to alert the agents at the border, with whom he comes
into contact about being on probation for smuggling.
Will such
disclosures prompt searches and delays?
Probably so. But then, the
potential for such searches should keep the Minor aware that future smuggling
efforts are likely to lead to discovery and arrest. That, of course, is the point of the
requirement.
Finally,
the Minor argues the delays in crossing the border will be de facto
banishment. There is no support in this
record for the assertion.
Ironically,
the Minor recognizes courts have upheld requirements for notification of a
minor's probation officer before crossing the border. Why such a condition? The answer would be so the probation officer
could notify border officials who could, in turn, conduct such searches as
might be warranted. What would be the
effect of notification by the probation officer? Such notification would likely result in
searches and delays. The burdens of
those searches and delays are the unfortunate result, particularly in this
case, of criminal conduct which needs to be deterred if the court is to attempt
to keep a minor away from future, and perhaps more serious criminal activity.
The current
condition is not a banishment and is a reasonable limitation on crossing the
border, where the Minor has already been drawn into serious criminal smuggling
activity. The condition of probation at
issue here is valid.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER,
J.
AARON,
J.
name="_ftn1" title="">[1] People v. Harvey
(1979) 25 Cal.3d 754, 758.
name="_ftn2" title="">[2] Miranda
