In re D.O.
Filed 3/26/13 In re D.O. CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
In re D.O.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.O.,
Defendant and Appellant.
A135768
(Del Norte County
Super. Ct.
No. JDSQ12-6068)
The
juvenile court sustained two charges of battery
against defendant and appellant D.O. and placed D.O. on probation, subject to
several conditions. On appeal, the minor
challenges two of these conditions, one requiring him to avoid places that
chiefly sell alcoholic beverages, and another prohibiting him from possessing
items whose chief purpose is to promote use of drugs or alcohol. He contends these conditions are not
sufficiently related to his criminal
conduct and are overbroad and vague.
We affirm the dispositional order.
Factual and Procedural Background
On February 24, 2012,
the minor, his brother, and a friend walked into the gym at their high
school. The minor approached a fellow
student, stated he had picked the “ ‘[w]rong person to snitch on,’ â€
and hit the student in the jaw.
On April 4, 2012,
the Del
Norte County Probation Department filed a wardship petition under Welfare and
Institutions Code section 602
name="_ftnref1" title="">[1]
witness (Pen. Code, § 136.1), assault (Pen. Code, § 245, subd.
(a)(4)), battery (Pen. Code, § 243, subd. (d)), and battery on school
property (Pen. Code, § 243.2).
At the May 15, 2012,
teacher testified to the attack, and the district attorney introduced
corroborating video evidence from a school surveillance camera and a student’s
digital video recorder. At the close of
the hearing, the court found true the two battery counts (counts 3 and 4) but
dismissed the other two counts.
At the
dispositional hearing on June
7, 2012, the juvenile court declared the minor a ward and placed
him on home probation. The court imposed
several conditions of probation, but only two bear on this appeal. Condition 7 states the minor must “[s]tay out
of places where alcohol is the chief item of sale[].†Condition 13 states the minor may not
“possess any paraphernalia, pictures, clothing or other miscellaneous items the
chief purpose of which is to promote drug or alcohol use.â€
The minor
did not specifically object to conditions 7 or 13 during the hearing, but did
object to a drug testing condition (not challenged on appeal) because there was
no evidence the minor had a current or recent drug problem and, argued the
minor, drug use was unrelated to the battery offenses. The probation department’s disposition
report, however, noted the “snitch†who provoked the attack was the victim, who
came forward and reported the minor’s stepbrother was selling methamphetamines
at school. An amended dispositional
report also noted the minor’s “personal history sheet and his Facebook†postings
online indicate he has “consumed alcohol and marijuana in the past†and recited
the probation department’s belief that the minor “has used drugs and alcohol.â€
The minor
filed a notice of appeal on June
15, 2012.
Once a
minor is adjudged a ward of the court under section 602, the court may place
the minor on probation and, under section 730, subdivision (b) “ ‘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.’ â€
(In re P.A. (2012) 211 Cal.App.4th 23, 33.) “[T]his language grants courts broad
discretion in establishing conditions of probation in juvenile cases . . . [and
s]uch ‘discretion will not be disturbed in the absence of manifest abuse.’
†(Ibid.) Objections to probation conditions should be
made in the trial court, but an appellate court nonetheless may address
challenges to conditions involving “ ‘pure questions of law that can be
resolved without regard to the sentencing record in the trial court.’ †(In re Sheena K. (2007) 40 Cal.4th
875, 884.)
Both
juvenile courts and adult criminal courts
have “ ‘broad discretion’ in formulating conditions of probation,†but the
legal framework applicable to minors and adults “are not identical.†(In re D.G. (2010) 187 Cal.App.4th 47,
52.) “Because wards are thought to be
more in need of guidance and supervision than adults and have more
circumscribed constitutional rights, and because the juvenile court stands in
the shoes of a parent when it asserts jurisdiction over a minor, juvenile
conditions ‘may be broader than those pertaining to adult offenders.’ †(Ibid.) Further, while “ ‘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
. . . [¶] 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.
[Citations.] “ ‘Even conditions
which infringe on constitutional rights may not be invalid if tailored
specifically to meet the needs of the juvenile . . . .’ †’ †(Ibid.,
quoting In re Tyrell J. (1994) 8
Cal.4th 68, 81, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 139.)
“While
broader than that of an adult criminal court, the juvenile court’s discretion
in formulating probation conditions is not unlimited. [Citation.]
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 [
Proposition 8 as stated in People v.
Wheeler (1992) 4 Cal.4th 284, 290–295]:
‘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.’ [Citations.]â€
(In re D.G.,
In juvenile
cases implicating Lent, when
determining whether a sufficient relationship exists between crime and
condition, or condition and future criminality, the juvenile court must not
“focus[] narrowly upon†the crime, but must also consider the facts surrounding
the crime and “the minor’s entire social history.†(In re
Todd L. (1980) 113 Cal.App.3d 14, 19; In re Tyrell J.,
re Walter P. (2009) 170 Cal.App.4th 95, 100 [“In fashioning the conditions
of probation, the juvenile court should consider the minor’s entire social
history in addition to the circumstances of the crime.â€].)
Thus,
appellate courts have affirmed a variety of probation conditions based upon the
broader facts of a case and a minor’s particular situation, which may only
fully come to light after trial when a probation report
is prepared. (In re Todd L., supra,
113 Cal.App.3d at pp. 16–20 [minor convicted of petty theft of purse, but
conditions prohibited minor from using drugs or alcohol (or being present
during others’ use) because minor had two arrests for drug-related offenses,
there was evidence of “a dispute over money ‘to buy pot,’ †and “the court could
reasonably infer that a juvenile experimenting with drug abuse might also
engage in alcohol abuseâ€]; In re Laylah K. (1991) 229 Cal.App.3d 1496,
1502, disapproved on other
grounds in In re Sade C. (1996) 13
Cal.4th 952, 962, fn. 2, 983, fn. 13 [“Where a court entertains
genuine concerns that the minor is in danger of falling under the influence of
a street gang†but there is no evidence of current gang membership “an order
directing a minor to refrain from gang association is a reasonable preventive
measure in avoiding future criminality . . . .â€]; In re Michael D.
(1989) 214 Cal.App.3d 1610, 1612, 1617 [minor convicted of assault and battery
“admitted to the probation officer that he had experimented with drugs and used
alcohol, hence the condition that he eschew the company of persons using or in
possession of those substances was properâ€]; In re Frankie J. (1988) 198
Cal.App.3d 1149, 1152–1154 [a condition prohibiting weapons possession is
valid: “Although no weapon was seen by or used upon the victim, there is
substantial evidence the use of a weapon was contemplatedâ€]; In re Jose R.
(1982) 137 Cal.App.3d 269, 279 [considering minor’s exposure to brother’s
heroin addiction in upholding no-drug-use condition for non-drug crimes].)
The
contested drug and alcohol conditions in this case are, under the precedents
just cited, sufficiently related to the minor’s crime and risk of future
criminality, and therefore do not run afoul of Lent as the minor asserts.
The minor attacked the victim because the victim interfered with the
minor’s brother’s selling of drugs.
Thus, not only did the minor’s crime relate to drugs, the juvenile court
could presume the minor’s stepbrother had problems with drugs from which the
minor needed protection. (See In re
Jose R., supra, 137 Cal.App.3d at
p. 279.) Furthermore, the amended
dispositional report noted the minor had “consumed alcohol and marijuana in the
past.â€
We also
reject the minor’s assertion that conditions 7 and 13 are unconstitutionally
overbroad. “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
unconstitutionally overbroad.†(
The restrictions of the minor’s freedom resulting from the probation
conditions serve the legitimate purpose of reducing his exposure to and
prohibiting the glorification of alcohol and drugs, both illegal for minors to
use. Even adults may be prevented from visiting
stores chiefly selling alcohol. (People
v. Patel (2011) 196 Cal.App.4th 956, 959.)
As to condition 13, its prohibition on possessing promotional items is
not an unreasonable restraint on the minor’s freedom of speech. The minor is a teenager who has used alcohol
and drugs and whose violence was connected with drugs. For a juvenile probationer with defendant’s
history, the probation order is an appropriate tool to help the juvenile court
fulfill its rehabilitative purpose to encourage defendant to lead a healthy,
law abiding life respectful of self and others, tailored to meet the
defendant's individual needs. In sum,
evaluating the minor’s offense in its entirety, these conditions were closely
tailored to promote his rehabilitation.
The minor also
contends condition 13, prohibiting possession of items whose chief purpose is
promotion of drug or alcohol use, is impermissibly vague because it is unclear
what the minor can or cannot possess. A
condition suffers from unconstitutional vagueness if not “sufficiently precise
for the probationer to know what is required of him, and for the court to
determine whether the condition has been violated.†(People v. Reinertson (1986) 178
Cal.App.3d 320, 324–325; see In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Probation conditions are interpreted with
common sense and in context. (In re
Ramon M. (2009) 178 Cal.App.4th 665, 677-678.) The ultimate question is whether ordinary
people can understand what behavior is prohibited by the condition. (In re Byron B. (2004) 119 Cal.App.4th
1013, 1018.) The words of the condition
13, such as “chief purpose,†“items,†and “promote†are of plain and ordinary
meaning. An ordinary person would understand
that items bearing marijuana leaves or the logos of beer companies would have
as their “chief purpose†the promotion of drug and alcohol use.
Although we
reject the over breadth and vagueness arguments the minor raises in his briefs,
we nonetheless modify condition 7 to include a knowledge requirement. This condition, which requires the minor to
“stay out of places where alcohol is the chief item of sale,†should include
express scienter requirement—that is, that he stay out of places which he knows
chiefly sell alcohol. (See In re
Victor L. (2010) 182 Cal.App.4th 902, 911–912; People v. Freitas (2009)
179 Cal.App.4th 747, 751–752; People v. Garcia (1993) 19
Cal.App.4th 97, 102 [the knowledge factor in probation conditions “should not
be left to implicationâ€].)
Probation condition 7 is ordered
modified to read: “stay out of places
where you know alcohol is the chief item of sale, including clubs, bars and
liquor stores.†As modified, the
dispositional order is affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
juvenile court may consider, at the disposition hearing, “ ‘ “the social
study of the minor made by the probation officer and [any] other relevant and
material evidence [that] may be offered, [including any written or oral
statement offered by the victim, the parent or guardian of the victim if the
victim is a minor, or if the victim has died or is incapacitated, the victim’s
next of kin, as authorized by subdivision (b) of
Section 656.2.]†’ †(
238, 244, italics omitted [also holding the juvenile court may consider
hearsay].)
