In re D.H.
Filed 7/13/12 In re D.H. CA6
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
IN RE D.H., a Person Coming
Under the Juvenile Court Law.
H037485
(Santa Cruz
County
Super. Ct.
No. J22375)
THE PEOPLE,
Plaintiff and
Respondent,
v.
D.H.,
Defendant and
Appellant.
1. introduction
On appeal,
minor D.H. challenges a probation condition requiring him to stay away from his
next-door neighbor and her house, which he burglarized.
court’s oral statement of the condition at the
property at [a street address], Watsonville.†He contends that this condition is
unconstitutionally vague and overbroad, as it should include a knowledge
requirement and specify a certain distance that he must stay away.
The
Attorney General contends that both of these problems are solved by the written
terms and conditions of minor’s probation filed with the
Cedelia Gonzalez [street address,] Watsonville.
. . . Do not knowingly come within 100
yards of this person(s)/place(s).†While
arguing that the written condition is generally constitutional, the Attorney
General proposes that the 100 yard distance should be modified to account for
the minor living next door to the victim.
For the
reasons stated below, we will reverse the order after concluding that it
requires an express knowledge condition and another modification that the
record does not allow us to make.
2. the juvenile court proceedings
On January 7, 2011, an amended
Inst. Code, § 602, subd. (a)) was filed charging the minor, born in April
1995, with the felonies of carrying a concealed dirk or dagger (former Pen.
Code, § 12020, subd. (a)(4)) on November
5, 2010 and burglary of his neighbor’s house (Pen. Code, § 459) on December 20, 2010.
At minor’s
initial appearance in juvenile court on January
10, 2011, he was ordered to attend school and stay away from an
address that is his next door neighbor’s house.
After a
contested jurisdictional hearing on September
2, 2011, the knife charge was not sustained, but the juvenile court
found minor within the court’s jurisdiction after sustaining the felony
burglary charge. There was evidence at
the hearing that minor and other young males had taken several items from the Watsonville
house of minor’s next door neighbor Gonzales on the morning of December 20, 2010. She had returned home that morning to find
minor in her garage carrying a box. He
jumped the fence and went inside his house, leaving the box with one of her
saws on the fence. She told him she
would call the police and did so. She
saw three other young males, two in a truck and one in minor’s yard. Minor was immediately arrested and the police
recovered some of Gonzales’s property from minor’s back yard and the back seat
of a vehicle parked in his garage. Minor
admitted to the police that he, with friends, had taken a bottle of
tequila. He denied taking anything else.
On
September 9, 2011, a second juvenile wardship petition was filed charging minor
with three offenses on August 22, 2011, the misdemeanors of driving without a
license (Veh. Code, § 12500, subd. (a)), and evading a police officer (Veh.
Code, § 2800.1, subd. (a)), and the infraction of driving with a blood
alcohol level of at least 0.05 percent (Veh. Code, § 23140, subd. (a)).
At a
hearing on September 26, 2011, the minor admitted evading a police officer on
the condition that the other charges would be dismissed but could be considered
for disposition.
At the
dispositional hearing on both petitions on October 12, 2011, the juvenile court
announced that it had read and considered the probation report dated October 5,
2011. The clerk’s transcript reveals
that the court initialed that report.
The probation report contained 21 separately numbered recommendations,
including 18 that qualify as conditions of probation. Recommendation No. 11 stated (as later
corrected by handwriting): “The minor
shall stay away from victim Cedelia Gonzalez and her property on [a street
address] in Watsonville.â€
At the
hearing, minor’s counsel objected to several conditions by the recommendation
number provided in the probation report.
Before ruling on these objections, the juvenile court had an extended
discussion with the minor’s parents about his school attendance, the impact of
juvenile felony charges, and the nature of the services offered by the Wrap
Program.
After this
discussion, the juvenile court declared minor to be a ward of the court and
placed him in his parents’ custody subject to a number of terms and conditions
of probation, generally tracking the recommendations of the probation
report. The court omitted provisions to
which minor had objected. The court for
the most part did not give the numbers in the probation report, but regarding
the stay away order, the court asked for the victim’s real last name. After receiving it, the court stated: “Correct Number 11. Stay away from the victim Ms. Gonzales, her
property at [street address], Watsonville.â€
The clerk’s
transcript contains a Judicial Council of California form Disposition –
Juvenile Delinquency order and a Santa Cruz County Superior Court Terms and
Conditions form on which various boxes are checked to reflect the court’s
orders of October 12, 2011. Among the
written conditions in the Terms and Conditions form is a checked box
stating: “Do not knowingly contact or approach,â€
followed by six lines, followed by “Do not knowingly come within 100 yards of
this person(s)/place(s).†Handwritten on
the lines are several names, including Gonzalez and her street address in
Watsonville. The form provides lines for
the date and the signature of the “Judge of the Juvenile.†In place of a signature appear two
handwritten backslashes, but not the juvenile judge’s signature or
initials. At the hearing, the juvenile
court made no reference to this form or this wording of the probation
condition.
3. scope of review
The
conflict between the oral and written probation conditions raises the question
of which part of the record is controlling:
what the trial court stated orally or what was written in the court’s
order. In People v. Gabriel (2010) 189 Cal.App.4th 1070, this court stated,
“When there is a discrepancy between the minute
order and the oral pronouncement of judgment, the oral pronouncement
controls.†(Id. at p. 1073.) In
747, in the absence of argument on the point, the appellate court elected to
review “the more inclusive oral pronouncement,†rather than the written
probation order signed by the judge. (
explained that the older rule gave preference to the reporter’s transcript in
the case of a conflict, but the modern rule is that when the clerk’s and
reporter’s transcripts cannot be harmonized, the part of the record will prevail
that is entitled to greater credence in the circumstances of the case. (Id.
at p. 599; People v. Harrison
(2005) 35 Cal.4th 208, 226; People v.
Freitas, supra, 179 Cal.App.4th
at p. 750, fn. 2.)
We agree
with the observations in People v. Thrash
(1978) 80 Cal.App.3d 898 that probation “conditions need not be spelled out in
great detail in court as long as the defendant knows what they are; to require
recital in court is unnecessary in view of the fact the probation conditions
are spelled out in detail on the probation order.†(Id.
at pp. 901-902.)
The
Attorney General recognizes this authority and argues that we should treat the
written form condition as controlling because probation and law enforcement
officers charged with enforcing probation conditions will refer to the written
form and not the reporter’s transcript of the court’s oral order.
In this
case, we are unable to treat the written condition as controlling in light of
the following circumstances. The
juvenile judge signed and dated the probation report, but not the form
conditions. At the hearing the juvenile
judge referred to and ordered modified the stay away condition in the probation
report and imposed the condition in the words of the probation report, not the
form conditions. Unlike the probation
report, the judge did not acknowledge having read and reviewed the form
conditions or otherwise mention them at the hearing. We cannot regard this unsigned form as
reflecting a judicial intent to modify or clarify the court’s oral order.
Having
established the terms of the order under review, we will apply the scope of
review this court summarized in People v.
Barajas (2011) 198 Cal.App.4th 748, 753 (Barajas): “An appellate court generally will not find that
a trial court has abused its broad discretion to impose probation conditions so
long as a challenged condition relates either generally to criminal conduct or
future criminality or specifically to the probationer’s crime. (People
v. Lent (1975) 15 Cal.3d 481, 486; People
v. Olguin (2008) 45 Cal.4th 375, 379-380.)
A Court of Appeal will review the reasonableness of a probation
condition only if the probationer has questioned it in the trial court. (People
v. Welch (1993) 5 Cal.4th 228, 237; see In re Sheena K. (2007) 40 Cal.4th 875, 882 (Sheena K.).)
“A Court of Appeal may also review the
constitutionality of a probation condition, even when it has not been
challenged in the trial court, if the question can be resolved as a matter of
law without reference to the sentencing record. (Sheena
K., supra, 40 Cal.4th at pp.
888-889.)
“ ‘Inherent in the very nature of probation is that probationers “do not
enjoy ‘the absolute liberty to which every citizen is entitled.’ †[Citations.] Just as other punishments for
offender’s freedoms, a court granting probation may impose reasonable
conditions that deprive the offender of some freedoms enjoyed by law-abiding
citizens.’ (United States v. Knights (2001) 534 U.S. 112, 119.) Nevertheless, probationers are not divested
of all constitutional rights. ‘A
probation condition “must be sufficiently precise for the probationer 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.] A probation 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
constitutionally overbroad.’ (
4. the validity of the probation condition
probationer’s right to travel with particular emphasis on gang probation
conditions. “Probationers have been
recognized as still enjoying a constitutional
right to intrastate travel (In re
White (1979) 97 Cal.App.3d 141, 148), but courts have allowed some
restrictions of that right through gang probation conditions.†(Barajas,
supra, at p. 755.) Probation conditions that include express
knowledge conditions as to specified areas have been upheld. (Id.
at pp. 755-756.) However, “[w]hen a gang area restriction has
lacked an explicit knowledge requirement, appellate courts have required
modifications.†(Id. at p. 756, and cases there cited.)
The
jurisprudential trend is toward requiring that a term or condition of probation
explicitly require knowledge on the part of the probationer that he is in
violation of the term in order for it to withstand a challenge for
unconstitutional vagueness. “[P]robation
conditions that implicate constitutional rights must be narrowly drawn†and the
knowledge requirement in these circumstances “should not be left to
implication.†(People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Absent modification of the condition, minor
remains vulnerable to arrest and punishment for unwittingly violating the
probation term. (People v. Lopez (1998) 66 Cal.App.4th 615, 634.) While naming the neighbor’s home address
provides minor with the specific knowledge of one location to avoid, how can
minor be expected to know all the locations to which his neighbor will
travel? We conclude that a stay away
probation condition centered on a mobile individual must include an express
knowledge requirement to give minor fair warning of what locations he must
avoid.
Though it
helps to achieve clarity to name a specific address to avoid, we do not believe
that it goes far enough to cure the constitutional defects in an order to “stay
away†from a specified address. The
problem is essentially the same one this court described in considering an
order requiring a probationer to “ ‘not
to be adjacent to any school campus.’ †(Barajas,
supra, 198 Cal.App.4th at p.
760.) After considering dictionary
definitions of “adjacent,†this court stated:
‘adjacent’ and ‘adjacent to’ are clear enough as an abstract concept. They describe when two objects are relatively
close to each other. The difficulty with
this phrase in a probation condition is that it is a general concept that is
sometimes difficult to apply. At a
sufficient distance, most reasonable people would agree that items are no
longer adjacent, but where to draw the line in the continuum from adjacent to
distant is subject to the interpretation of every individual probation officer
charged with enforcing this condition. While
a person on the sidewalk outside a school is undeniably adjacent to the school,
a person on the sidewalk across the street, or a person in a residence across
the street, or two blocks away could also be said to be adjacent. To avoid inviting arbitrary enforcement and
to provide fair warning of what locations should be avoided, we conclude that
the probation condition requires modification.
How far
away is “away†is also in the eye of the beholder and, as the Attorney General
acknowledges, any distance specification in this case should take into account
that minor and his victim are next door neighbors. The form order identifies 100 yards as an
all-purpose avoidance distance, but this may be not only unreasonable but
unconstitutional as applied to circumstances such as these. Minor may need to travel on the street
directly outside his neighbor’s house to come home. Minor’s front yard may not be 100 yards or
even 50 feet from the neighbor’s house.
The appellate record provides no information as to the distances between
the neighboring houses, garages, driveways, or yards, or minor’s customary
routes of travel. Under these
circumstances, identifying an appropriate distance that is not overly
restrictive of minor’s right to travel is not a question that we may resolve as
a matter of constitutional law. While a
distance such as 50 feet may be an appropriate accommodation of minor’s rights
and law enforcement concerns, this type of question is properly answered based
on the kind of specific facts absent in our record and is more a question of
reasonableness than constitutionality.
Accordingly, we will remand this case to allow the juvenile court an
opportunity to tailor this condition to minor’s individual circumstances.
5. Disposition
The
judgment is reversed and the case is remanded for the juvenile court to tailor
a stay away order to the circumstances of this case. Any such order must also include a specific
knowledge requirement.
Bamattre-Manoukian, ACTING P. J.
WE CONCUR:
MIHARA,
J.
DUFFY,
J.
name="_ftn1" title="">[1] To protect
the neighbor’s privacy, our opinion will not give her street address. We will spell her last name as both Gonzales
and Gonzalez as it appears in the record we are quoting. She was asked to spell her first name, not
her last, when she testified.
name="_ftn2" title="">*Retired Associate Justice of the Court of Appeal,
Sixth Appellate District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
