Filed 5/11/17 In re Harold E. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
In Re HAROLD E., a Person Coming
Under the Juvenile Court Law.
H044085
(Monterey County
Super. Ct. No. 16JV000420)
THE PEOPLE,
Plaintiff and Respondent,
v.
HAROLD E.,
Defendant and Appellant.
Minor Harold E. was placed on probation after the juvenile court found that he
came within its jurisdiction by committing second degree robbery. The sole issue
presented in this appeal is whether a probation condition prohibiting minor from
associating with persons his probation officer deems as a threat to the successful
completion of his probation is facially vague or overbroad. For the reasons explained
here, we will affirm the judgment.
I. BACKGROUND
Minor was charged in a juvenile wardship petition with second degree robbery
(Pen. Code, § 211; count 1), criminal threats (Pen. Code, § 422, subd. (a); count 2), and
battery (Pen. Code, § 242; count 3). After a contested hearing, the juvenile court found
the robbery allegation true. The evidence showed that minor, then 14 years old, bullied a
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12-year-old schoolmate in the school’s computer lab, using physical force and threats to
obtain some of the victim’s lunch money. The robbery was deemed a felony, minor was
declared a ward of the court, and he was placed on probation for 12 months in the
continued custody of his mother. Among other conditions of probation, minor was
ordered to “not knowingly associate/communicate with any individuals identified to you
by your Probation Officer as a threat to your successful completion of probation.”
II. DISCUSSION
A juvenile court has wide discretion to impose on a probationer “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.” (Welf. & Inst.
Code, § 730, subd. (b); In re Sheena K. (2007) 40 Cal.4th 875, 889.) Juvenile probation
conditions may be broader than those pertaining to adult probationers “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.” (In re Antonio R. (2000)
78 Cal.App.4th 937, 941.) When the state asserts jurisdiction over a minor, it acts as
parens patriae—standing in the shoes of the parents. (In re Frank V. (1991)
233 Cal.App.3d 1232, 1242.) “ ‘ “[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.” ’ ” (In re Sheena K., at p. 889.)
Indeed, “[a] condition of probation which is impermissible for an adult criminal
defendant is not necessarily unreasonable for a juvenile receiving guidance and
supervision form the juvenile court.” (In re Frank V., at p. 1242.)
A. VAGUENESS
The vagueness doctrine is grounded in the due process concept of fair warning—
both to provide adequate notice to the potential offender and to guard against arbitrary
enforcement. (In re Sheena K., supra, 40 Cal.4th at p. 890.) The vagueness doctrine bars
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enforcement of a law proscribing conduct “ ‘ “in terms so vague that [persons] of
common intelligence must necessarily guess at its meaning and differ as to its
application.” ’ ” (Ibid.) To that end, 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.’ ” (Ibid.) The language used must have
“ ‘reasonable specificity.’ ” A vagueness challenge will fail “ ‘if any reasonable and
practical construction can be given’ ” to the challenged language. (People ex rel. Gallo v.
Acuna (1997) 14 Cal.4th 1090, 1117 (Acuna).)
Minor argues that the probation condition is constitutionally infirm because the
word “threat” is vague, thereby giving the probation officer unlimited discretion to define
and enforce the condition. Minor acknowledges that certain persons may pose “obvious
threat[s]” to the successful completion of probation, but that others who pose only
“practical obstacles” to minor’s adherence to his probation conditions, such as a friend
who drives him to school and frequently arrives late, could also be deemed a threat.
Leaving the discretion to the probation officer to determine the magnitude of a threat, in
minor’s view, provides for arbitrary probation restrictions.
We reject minor’s argument that the word “threat” is facially vague. The Oxford
English dictionary provides a reasonable and practical definition of threat as a “danger”
or “peril” (OED Online. March 2017. Oxford University Press.
www.oed.com/view/Entry/2011...1152?rskey=rWnM0U&result=1), and our Supreme
Court has recognized that similar words such as “confront,” “annoy,” “provoke,”
“challenge,” “harass,” “intimidating,” “shoving,” “crowding,” and “assaulting” are
sufficiently definite to withstand constitutional challenge. (Acuna, supra, 14 Cal.4th at
p. 1118.) The word provides reasonable specificity and is not vague for lack of
definiteness.
A contextual examination of the probation condition shows it is not facially
standardless. (Acuna, supra, 14 Cal.4th at pp. 1116–1117.) Acting as parens patriae, the
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juvenile probation officer is tasked with promoting and nurturing minor’s rehabilitation.
(In re Frank V., supra, 233 Cal.App.3d at p. 1243.) As the In re Frank V. court
recognized, the juvenile court cannot reasonably be expected at the outset of the
probationary period to identify specific persons who may jeopardize a minor’s successful
completion of probation. (Id. at p. 1243.) It may reasonably rely on the juvenile
probation officer to assess a minor’s performance on probation, and to determine whether
his ability to succeed at any point is being jeopardized by other people. (Ibid.)
Understood in the appropriate context of juvenile probation, the delegation of discretion
to the probation officer to determine whether a person threatens the successful
completion of minor’s probation is not a vague directive subject to arbitrary enforcement.
B. OVERBREADTH
A probation condition is unconstitutionally overbroad if it “imposes limitations on
a person’s constitutional rights” that are not “closely tailor[ed] … to the purpose of the
condition.” (In re Sheena K., supra, 40 Cal.4th at p. 890.) A condition impinging on a
constitutional right (here minor’s First Amendment right to association) “must be tailored
carefully and reasonably related to the compelling state interest in reformation and
rehabilitation.” (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) In our view, the
condition is reasonably related to minor’s reformation and rehabilitation, as its purpose is
to remove impediments to minor’s successful completion of probation. And the
condition is narrowly tailored because it limits minor’s rights only by proscribing
association with persons deemed a threat by a court officer charged with caring for and
supervising minor. (Ibid.)
Minor’s authorities are distinguishable. In People v. O’Neil (2008)
165 Cal.App.4th 1351, the court struck as overbroad an adult probation condition stating:
“You shall not associate socially, nor be present at any time, at any place, public or
private, with any person, as designated by your probation officer,” because “[a]s written,
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there are no limits on those persons whom the probation officer may prohibit defendant
from associating with.” (Id. at pp. 1355, 1357.) Here, the condition applies to a ward of
the juvenile court, whose probation officer is acting in parens patriae. Further, the
condition is not unbounded. The proscribed association must be a threat to the successful
completion of juvenile probation.
This court in In re E.O. (2010) 188 Cal.App.4th 1149 held that a condition
prohibiting a juvenile from knowingly coming within 25 feet of a courthouse with some
exceptions was not narrowly tailored to its objective of preventing witness intimidation
by gang members and was too vague to effectively limit the restriction. (Id. at pp. 1155–
1156, & fn. 3.) However, the purpose of the condition here—minor’s successful
reformation and rehabilitation—is markedly different than the narrow objective of
preventing witness intimidation. And, as we have explained, the means to that legitimate
end is not overreaching, as the restriction on minor’s association is limited to persons
jeopardizing his successful completion of probation.
We reject minor’s argument that the probation condition is overbroad “because the
probation officer has diminished authority in determining the appropriate course of
minor’s rehabilitation, as compared to minor’s parents.” Minor points to the In re
Frank V. court’s observation that parents “have powers greater than that of the state to
curtail a child’s exercise of [] constitutional rights,” given the parent’s liberty interest in
raising the child. (In re Frank V., supra, 233 Cal.App.3d at p. 1243.) The court’s
recognition of the liberty interest of a minor’s parent does not advance minor’s
overbreadth claim. As relevant here, the In re Frank V. court rejected the overbreadth
challenge to a juvenile probation condition prohibiting association with people identified
by the parents or the probation officer, recognizing the discretion of the probation
department, “acting as parent, to promote and nurture [the minor’s] rehabilitation” by
restricting his associations. (Id. at p. 1243.)
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C. FORFEITURE
Minor argues that the probation condition is overbroad for the additional reason
that the sentencing record shows his association with others is not a risk to the successful
completion of his probation. That claim is forfeited for failing to raise it in the trial court.
Responding to the Attorney General’s forfeiture argument, minor presses in his reply
brief that the forfeiture rule does not apply because his challenges are facial, citing In re
Sheena K. The Supreme Court in In re Sheena K., however, made clear that only
constitutional claims presenting “ ‘ “pure questions of law that can be resolved without
reference to the particular sentencing record developed in the trial court” ’ ” are not
subject to forfeiture, and that the forfeiture doctrine continues to apply to reasonableness
challenges under People v. Lent (1975) 15 Cal.3d 481. (In re Sheena K., supra,
40 Cal.4th at pp. 884–889.) Adhering to the forfeiture rule as articulated in In re Sheena
K., we will not review the sentencing record here to resolve what may be viewed as either
a reasonableness or an as-applied challenge to the probation condition.
III. DISPOSITION
The judgment is affirmed.
____________________________________
Grover, J.
WE CONCUR:
____________________________
Rushing, P. J.
____________________________
Premo, J.
H044085 – In re Harold E.; People v Harold E.