In re C.R.
Filed 3/5/13 In re C.R. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
In re C.R., a Person Coming
Under the Juvenile Court Law.
H038235
(Santa Clara
County
Super. Ct.
No. JV38601)
THE PEOPLE,
Plaintiff and
Respondent,
v.
C.R.,
Defendant and
Appellant.
After a
contested jurisdictional hearing, the
juvenile court sustained a petition accusing appellant C.R. of misdemeanor
(a)). The court declared appellant to be
a ward of the court and placed her on probation for six months. On appeal, she challenges several of the
probation conditions as vague and overbroad, along with a search condition she
regards as unreasonable. We find
appellant's points to be well taken and therefore will modify the
Background
The
petition filed under Welfare and Institutions Code section 602
confrontation between appellant and another girl at her high school, with whom
there had been a previous "problem" relationship. After exchanging "angry words and
stares," the other girl, Priscilla L., retreated. Appellant found Priscilla in a classroom,
pushed her, and then began slapping her.
The court
found appellant to be a minor described by section 602 and imposed multiple
conditions, including the following ones that are challenged on appeal:
"5. That said
minor not be on or adjacent to any school campus unless enrolled or with prior
administrative approval; . . .
"7. That said
minor not use, possess, or be under the influence of alcohol or any form of
controlled or illegal substance without the legal right to do so and submit to
drug and substance abuse testing as directed by the Probation Officer;
"8. That said
minor not be in possession of any drug paraphernalia;
"9. That said
minor submit his [sic] person,
property, residence, or any vehicle owned by said minor or under said minor's
control to search and seizure at any time of the day or night by any peace
officer with or without a [w]arrant; . . .
"17. That said
minor have no contact of any type with Priscilla L. . . .
"
From the
court's dispositional order on April
23, 2012, appellant filed a timely notice of appeal.
Discussion
Appellant
challenges conditions 5, 7, 8, and 17 as being unconstitutionally vague and
overbroad. All of those, she points out,
lack an express requirement that she knowingly
engage in conduct that would violate probation.
In addition, condition 5 does not specify how far from a school
qualifies as "adjacent," and the word "contact" in
condition 17 could describe any conduct that she might engage in without
realizing that Priscilla is in the vicinity.
The overbreadth in the word "contact" is also inherent in
condition 17, appellant argues, because an interpretation of
"contact" could "encroach on appellant's
loiter for innocent purposes."
Appellant is concerned that she might avoid legitimate activities to
"reduce her risk of coming into coincidental 'contact' with
Priscilla."
title="">[2]
As to these
conditions, the People do not object to the modifications proposed by
appellant, which will insert a knowledge element into each condition and
clarify the distances that would violate conditions 5 and 17. (Cf. People
v. Barajas (2011) 198 Cal.App.4th 748, 762-763; People v. Kim (2011) 193 Cal.App.4th 836, 844-846.) We agree that a knowledge requirement
should be inserted and that the words "adjacent" and
"contact" can be clarified to specify the required distance from
schools and the victim. We will
therefore modify the identified probation conditions accordingly.
Appellant
further contends that condition 9 is improper because it permits warrantless
searches of her residence, which is not reasonably related to her misdemeanor
battery offense or to any anticipated future criminality. Her offense, she points out, was an isolated
fight at school; no weapons were involved, she had no documented history of
drug or alcohol possession or use, and this was her first referral to the
probation department.
Section
730, subdivision (b), allows the juvenile court to "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." This provision accords
the court broad discretion among "a variety of dispositional
options." (In re Tyrell J. (1994) 8 Cal.4th 68, 81.) The court's "discretion to fashion
appropriate conditions of probation is distinguishable from that exercised by
an adult court when sentencing an adult offender to probation. Although the
goal of both types of probation is the rehabilitation of the offender,
'[j]uvenile probation is not, as with an adult, an act of leniency in lieu of
statutory punishment; it is an ingredient of a final order for the minor's
reformation and rehabilitation.'
[Citation]. . . .
[¶] In light of this difference,
a condition of probation that would be unconstitutional or otherwise improper
for an adult probationer may be permissible for a minor under the supervision
of the juvenile court." (
Sheena K. (2007) 40 Cal.4th 875, 889.)
"This is because juveniles are deemed to be more in need of
guidance and supervision than adults, and because a minor's constitutional
rights are more circumscribed. The state, when it asserts jurisdiction over a
minor, stands in the shoes of the parents. And a parent may 'curtail a child's
exercise of the constitutional rights . . . [because a] parent's own
constitutionally protected "liberty" includes the right to
"bring up children" [citation,] and to "direct the upbringing
and education of children." [Citation.]' " (In re
Antonio R. (2000) 78 Cal.App.4th 937, 941; accord, In re D.G. (2010) 187 Cal.App.4th 47, 52.)
Notwithstanding
the broader scope of the juvenile court's discretion compared to that of the
court in adult criminal cases, the juvenile court must still consider "not
only the circumstances of the crime, but also the minor's entire social
history." (In re Todd L. (1980) 113 Cal.App.3d 14, 20; accord,
"Despite the differences between the two types of probation, it is
consistently held that juvenile probation conditions must be judged by the same
three-part standard applied to adult probation conditions under [
486]: 'A condition of probation will not
be held invalid unless it "(1) has no relationship to the crime of which
the offender was convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not reasonably related
to future criminality . . . ." [Citation.] Conversely, a condition of probation which
requires or forbids conduct which is not itself criminal is valid if that
conduct is reasonably related to the crime of which the defendant was convicted
or to future criminality.' " (
The parties
debate the application of the principles set forth in People v. Lent, supra, and
applied in In re D.G. We agree with appellant that the search of
her residence was not justified by either the circumstances of her offense or
her social history. The People attempt
to defend the search condition by pointing out that appellant's attendance at
school had been spotty, and her grades had fallen. They suggest that although appellant did not
use a weapon in hitting Priscilla, she might "be tempted to do so in the
future." In the People's view,
appellant "was obviously a minor in trouble and heading in the wrong
direction. Given these behaviors which
reflected a possible risk of escalating delinquency, the trial court did not
abuse its discretion in retaining the residential search condition."
The problem
with the People's position is that none of their perceived rationale is
supported by the record. In the court
below the prosecutor merely posited, without pointing to any specific factors
in appellant's conduct or social history, that "[i]f there is some reason
that [probation officers and the police] want to have access, they should have
that because we're dealing with a minor."
The juvenile court likewise did not cite any circumstances in
appellant's history or the prospect of her future criminality that would
justify a warrantless search of appellant's home at any time during her
probation. Instead, the court merely
deferred the question to a future hypothetical scenario in which such a search
did take place and was challenged by the minor under the Fourth Amendment.
As in
any evidence in the record to support the residential search condition in this
case. There is no relationship between
appellant's conduct at home and her attack at
school on a former friend with whom she now had a hostile
relationship. She had no record of
delinquent behavior. Nor is there any
indication that she might have weapons or drugs at home; thus, "there is
no reason to believe the current restriction will serve the rehabilitative
function of precluding appellant from any future criminal acts." (187 Cal.App.4th at p. 53.) Appellant was still subject to search of her
person, property, and any vehicle she was operating, whether at school or
anywhere else in public.
As we noted
in In re Binh L., supra, 5
Cal.App.4th at page 203, "every juvenile probation condition must be made
to fit the circumstances and the minor."
"Of necessity, a probation condition that can be justified only on
grounds that can be applied equally to every juvenile probationer is hardly
tailored to the needs of appellant."
(In re D.G., supra, 187
Cal.App.4th at p. 56.) We cannot find
the specific circumstances here to fit the condition permitting warrantless
searches of appellant's residence.
Disposition
The
dispositional order is modified to amend probation conditions 5, 7, 8, 9, and
17, as follows: 5. You must not
knowingly be on or within 50 feet of any school campus unless enrolled there or
with prior administrative approval; 7. You must not knowingly possess, or be
under the influence of, alcohol or any form of substance you know to be
controlled or illegal without the legal right to do so, and you must submit to
drug and substance abuse testing as directed by the probation officer; 8. You
must not knowingly possess any unlawful drug paraphernalia; 9. You must submit
your person, personal property, or any vehicle owned by you or under your
control to search and seizure at any time of the day or night by any peace
officer with or without a warrant; 17. You must not knowingly come within 50
feet of Priscilla L. or attempt to communicate with her.
As so
modified, the order is affirmed.
_________________________________
ELIA,
J.
____________________________
RUSHING, P. J.
____________________________
PREMO, J.
name="_ftn1" title="">[1]
All further statutory references are to
the Welfare and Institutions Code.
name="_ftn2" title="">[2]
It has not escaped our notice that appellant's concerns are now academic, as
her six-month probationary period should have expired.
