In re D.P.

 

 

 

 

 

 

 

 

 

Filed 9/14/12  In re D.P. CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

 

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opinion has not been certified for publication or ordered published for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>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

In re D.P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,               Plaintiff and Respondent,   v.   D.P.,               Defendant and Appellant.	E054890               (Super.Ct.No. J240068)               OPINION

 

            APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County. 
William Jefferson Powell, IV, Judge. 
Affirmed as modified.

            Meldie
M. Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Kevin Vienna and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and
Respondent.

            The San Bernardino County District Attorney’s Office
filed an amended Welfare and Institutions Code section 602 petition alleging that
defendant and appellant D.P. (minor) committed href="http://www.mcmillanlaw.com/">second degree commercial burglary (Pen.
Code, § 459, count 1), petty theft (Pen. Code, § 484, subd. (a),
count 2), and three counts of assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1), counts 3-5).  The juvenile
court dismissed counts 1 and 2 outright, minor admitted the allegation in count
4, and the court dismissed the remaining counts pursuant to the parties’
agreement.  The court subsequently declared
minor a ward and placed him on probation, under specified conditions, in the
custody of his parents.

            On
appeal, minor contends that a few of the probation conditions requiring him to
stay away from the victims are unconstitutionally
vague and overbroad and should be modified to include a knowledge
requirement.  He further claims that one
of the conditions is “confusing, vague and conflicting.”  We agree that the terms at issue should be
modified to include a knowledge requirement. 
Otherwise, we affirm the judgment.

FACTUAL BACKGROUND

            On July 30, 2011, ABC Channel 7 News reporter Leanne S. and her
photographer, Richard K., were doing a “live feed” for the news program, when
Leanne S. heard a “plinking” sound. 
Minor and his friends were shooting BB guns across the street.  They saw the news van and started shooting at
it.  Minor admitted that he shot at the
news van once.  The van was reportedly
hit four or five times, and one of the pellets hit Leanne S.’s thumb, causing a
small puncture wound.  She and the
photographer jumped inside the van to take cover.  Minor also shot at one of his friends who was
with him and decided to leave the scene. 
As he started walking away, minor shot at him and missed.

The Probation Conditions
Should Be Modified to Include a Knowledge Requirement

            Upon
the recommendation of the probation officer, the court placed minor on
probation in the custody of his parents. 
Minor now contends that condition Nos. 20-23 are overbroad and vague,
and should be modified to include a “knowledge” requirement.  He also argues that condition No. 22 should
be rewritten to make it clearer.  The
People merely respond that the court’s statements and the record support the
dispositional order, but fail to address minor’s specific arguments.  We agree that condition Nos. 20-23 should
include a knowledge requirement, but conclude that the court adequately
clarified condition No. 22 below.

            At
the outset, we note that minor objected to condition No. 22 below, but did not
object to condition Nos. 20, 21, and 23. 
Although he did not object to these conditions when they were imposed,
we do not deem the issue forfeited on appeal, since the
failure to object on the ground that a probation condition is unconstitutionally
vague or overbroad is not forfeited on appeal. 
(In re Shaun R. (2010) 188
Cal.App.4th 1129, 1143; In re Sheena K.
(2007) 40 Cal.4th 875, 889 (Sheena K.).) 

            The
juvenile court “has wide discretion to select appropriate conditions and may
impose ‘“any reasonable condition that is ‘fitting and proper to the end that
justice may be done and the reformation and rehabilitation of the ward
enhanced.’”’  [Citations.]”  (Sheena
K., supra, 40 Cal.4th at p.
889.)  “The juvenile court’s broad
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]  ‘[J]uvenile probation is not an act of
leniency, but is a final order made in the minor’s best interest.’  [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.  [Citations.]”  (In re Tyrell J. (1994) 8 Cal.4th 68,
81-82, disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th
128, 130.)

            Furthermore,
“[t]rial courts have broad discretion to set conditions of probation in order
to ‘foster rehabilitation and to protect public safety pursuant to Penal Code
section 1203.1.’  [Citations.]  . . .  [¶]  However,
the trial court’s discretion in setting the conditions of probation is not
unbounded.”  (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)  A term of probation is invalid if 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.’”  (People
v. Lent (1975) 15 Cal.3d 481, 486 (Lent),
italics added.) 

            A.  Probation
Condition Nos. 20-23 Should Be Modified to Include a “Knowledge” Requirement

            Minor
first argues that the following four conditions are vague and overbroad and
must be rewritten to only prohibit a knowing
violation:

            “20.  Not associate or communicate with the victim,
Richard [] K., or be within one hundred (100) feet of his property”;

            “21.  Not associate or communicate with the victim,
Leanne [] S., or be within one hundred (100) feet of her property”;

            “22.  Not associate or communicate with the victim,
ABC Channel 7 News, or be within one hundred (100) feet of the property”;href="#_ftn1" name="_ftnref1" title="">^[1]

            “23.  Not associate or communicate with the victim,
Ryan D., or be within one hundred (100) feet of his property.”

            Minor
specifically asserts that these conditions should be modified to require that
he must either know or reasonably should know that he is within 100 feet of any
of the victims’ property.  We
agree.  A person may reasonably not know whether he is within 100 feet of
a person’s property, if he does not know where the person’s property is
located.  (See People v. Turner (2007) 155 Cal.App.4th 1432, 1436.)  The appropriate remedy is to modify these
conditions to add a knowledge requirement, that minor not knowingly be within 100 feet of the victims’ property.

            B.  Condition
No. 22 is Not Confusing or
Conflicting

            Minor
argues that condition No. 22 is confusing since the minute order conflicts with
the court’s verbal order regarding the words of the term.  He contends that the term should be rewritten
for clarification.  We disagree.

            Condition
No. 22 states that minor shall “[n]ot associate or communicate with the victim,
ABC Channel 7 News, or be within one hundred (100) feet of the property.”  Defense counsel objected below to the
condition as unconstitutional, claiming that it was saying that “he [could] not
communicate with the news.”  The court
overruled the objection, stating that “[t]here [were] hundreds of different
news sources originating in Southern California . . . that term
number 22 would not unconstitutionally limit his speech but merely limit his
conduct with the employer and one of the named victims.”  The court noted that the van that was shot
was owned by ABC Channel 7 (ABC) and ABC was, therefore, a named victim.  Defense
counsel asked the court to strike “or be within 100 feet of the property,”
and then stated that the condition needed to define what ABC’s property
was.  The court acknowledged that the
news van traveled around, and noted that the only property it knew of that
belonged to ABC was in the Burbank area. 
The prosecutor interjected that the term would not pose any problems,
since it was obvious that if minor saw a Channel 7 news van, he would know to
stay away from it, and he would also just need to avoid ABC’s actual
headquarters.  The court concluded the
discussion as follows:  “Why don’t we do
this.  Let me define it as stay 100 feet
away from any ABC Channel 7 news van and corporate headquarters in Burbank,
California.”

            As
minor now points out, the minute order states that term No. 22 was modified “to
specify the property as news van and property location in Buena Park.”  He claims that, as such, it is unclear
whether he is ordered to stay away from the news van that was the subject of
the assault, or from any ABC Channel 7 news van, and whether he is ordered to
stay away from the ABC Channel 7 News property in Buena Park or the corporate
headquarters in Burbank.  However, it
appears that a clerical error was made in the minute order.  The court clearly ordered that minor was to
stay away “from any ABC Channel 7 news van and [the] corporate headquarters in
Burbank, California.”  In other words,
contrary to minor’s claim, there is no need for the term to be rewritten since
the minute order was simply erroneous. 
Ordinarily, we would correct the clerical error to make the record
reflect the court’s actual order.  (>People v. Mitchell (2001) 26 Cal.4th
181, 185.)  However, such correction is
not essential here, since we are ordering the condition to be modified to add a
knowledge requirement, as discussed ante.  The court’s true order will be reflected in
the modification.

DISPOSITION

            Minor’s
probation terms are modified as followed:

            Probation condition No. 20 is
modified to read:  “Not associate or
communicate with the victim, Richard [] K., or knowingly be within one hundred
(100) feet of his property.”

            Probation
condition No. 21 is modified to read: 
“Not associate or communicate with the victim, Leanne [] S., or
knowingly be within one hundred (100) feet of her property.”

            Probation
condition No. 22. is modified to read: 
“Not knowingly be within one hundred (100) feet from any ABC Channel 7
News van or ABC Channel 7’s corporate headquarters in Burbank, California.”

            Probation
condition No. 23 is modified to read: 
“Not associate or communicate with the victim, Ryan D., or knowingly be
within one hundred (100) feet of his property.” 


            In
all other respects, the judgment is affirmed.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

HOLLENHORST                 

                                                Acting P. J.

 

 

We concur:

 

 

KING                                     

                                             J.

 

 

MILLER                                

                                             J.