In re Johnny C.
Filed 4/22/13 In re Johnny C. 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opinion has not been certified for publication or ordered published for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 JOHNNY C., a Person
Coming Under the Juvenile Court Law.
H038023
(Monterey
County
Super. Ct.
No. JV46135)
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOHNNY C.,
Defendant and Appellant.
In December 2011, a petition was
filed alleging that Johnny C., a minor (17 years old at the time of the
petition’s filing), came within the provisions of Welfare and Institutions Code
section 602. The petition charged the
minor with four counts, namely, carrying a
concealed firearm in a vehicle, possession of a firearm, removal of identifying
marks on a firearm, and operating a motor vehicle without a license. The minor filed a motion to suppress evidence
under Welfare and Institutions Code section 700.1, which was denied. Pursuant to the People’s motion, the court
dismissed one count and amended another count.
After the minor admitted count 4—operation of a motor vehicle without a
license—the court sustained the petition as to that count, dismissed the two
remaining counts, declared the minor to be a ward of the court, and placed him
on probation for 24 months under various terms and conditions.
The minor claims on appeal that the
court erred in denying the suppression
motion. He argues that the officer
did not have sufficient objective facts to support a reasonable suspicion
justifying the minor’s detention. He
also asserts a series of challenges to seven of the probation conditions
imposed by the court, including claims that some conditions are vague and
overly broad in violation of due process under the Fourteenth Amendment of the
States Constitution. We conclude that
the court did not err in denying the suppression motion. We agree that some of the probation
conditions should be modified. We will
therefore order the conditions modified as indicated below and will affirm the
dispositional order as so modified.
FACTS
Jessi Beteran is a campus monitor
at Marina High School,
whose regular duties consist of observing students coming into and leaving the
campus; ensuring that students are attending classes; and reporting the arrival
of anyone who does not appear to belong at the school. The high school is a closed campus, meaning
that enrolled students do not leave for lunch or at any other time during
school hours and that anyone arriving on campus must report to the office.
On December 22, 2011, at
approximately 12:30 p.m., Beteran, located at the rarely-used second entrance
to the campus, observed a gold sports utility vehicle (SUV) driving very slowly
down the road; it was coming from an area consisting of abandoned housing.
thought it was “suspicious†because of how slowly the vehicle was traveling and
because she had never seen it before.
Beteran contacted the campus liaison, Judy Luckerd, by radio to report
the SUV because Luckerd was stationed near the main entrance of the school
where the SUV was approaching.
During the time period relevant to
this incident, Andres Rosas of the Marina Police Department was assigned as a
school resources officer responsible for handling criminal matters occurring at
any Marina school campuses,
including Marina High
School.
Included among those responsibilities is truancy enforcement. At approximately 12:30 p.m. on December
22, 2011, Officer Rosas was standing with Luckerd at the gate to
the student parking lot on the northwest side of the Marina
High School campus. He overheard Beteran’s radio call to Luckerd
in which Beteran described a “suspicious†gold SUV travelling toward them. Officer Rosas then saw the SUV containing
three juveniles travel by Luckerd and him, and he went to his patrol car. His intent was “to go follow the vehicle and
find out if they were students of ours and what they were, basically, doing on
campus.†By the time Officer Rosas reached
his patrol vehicle to follow the SUV, it was gone; he thought it was moving
fast to elude him.
Officer Rosas continued driving
toward a middle school/skate park/teen center complex; as he was driving
westbound on Hillcrest Avenue, he spotted the SUV travelling eastbound toward
him.
passenger in the rear seat “duck[ed] down.â€
He felt that the juvenile was attempting to conceal his identity from
the officer; he thought the juvenile might be a truant. Officer Rosas explained that there was also
“an officer safety concern [about] why[] an individual [would be] hiding in a
vehicle.†He then made a U-turn and
pursued the SUV, making a traffic stop.
Approaching the driver’s side of
the SUV, Officer Rosas made contact with the minor, who was the driver. He asked the minor and the two passengers
their ages. The minor said “he was about
to turn 18.†The front passenger said he
was 16, and the rear passenger said he was 17.
Officer Rosas then asked the minor for his driver’s license. The minor responded that he did not have
one. The officer then asked for
identification from all three juveniles and each gave verbal
identifications. The minor gave the
officer a September 1994 birth date.
Officer Rosas then asked the minor to turn off the ignition and hand him
the key. The officer ran a check through
CLETS
and determined that the minor had a prior adjudication of driving while
unlicensed. Officer Rosas prepared a
citation, charging the minor with a violation of Vehicle Code section 12500. He told the minor to step out of the SUV, took
him behind the vehicle, and explained that the SUV would be impounded for 30
days.
Before impounding the SUV, Officer
Rosas and another officer conducted an inventory search in accordance with
written protocol of the Marina Police Department. In the rear cargo area, they found a
disassembled Harrington and Richardson 410-gauge shotgun, wrapped in a
sweatshirt.
PROCEDURAL
BACKGROUND
On December 27, 2011, the Monterey
County District Attorney filed a petition under Welfare and Institutions Code
section 602, subdivision (a), with the juvenile court below. In the petition, the People alleged that the
minor had committed four offenses that if committed by an adult would be
crimes, namely, unlawfully carrying a concealed firearm in a vehicle, a felony
(Pen. Code § 12025, subd. (a)(1); count 1);
possession by a minor of a firearm capable of being concealed upon the person,
a misdemeanor (§ 12101, subd. (a)(1); count 2); changing, altering,
removing, or obliterating the maker’s name, model, manufacturer’s number or
other mark or identification on a firearm, a misdemeanor (§ 12090; count
3); and unlicensed operation of a motor vehicle, a misdemeanor (Veh. Code,
§ 12500, subd. (a); count 4).
The minor thereafter filed a motion
to suppress evidence pursuant to Welfare and Institutions Code section 700.1,
arguing that property seized and statements obtained from the minor should be
suppressed because they were products of an unlawful search and seizure. The motion was opposed orally by the People.
argument, the court denied the minor’s suppression motion. In so ruling, the court found that “there was
reasonable suspicion to believe that there was criminal activity afoot, being
either the . . . inappropriate and illegal entry into the campus and or the . .
. truancy[] issue, where people would leave school early without
permission.â€
Following the denial of the
suppression motion, the court, over the minor’s objection, granted the People’s
motion to amend the petition to strike count 1 and to amend count 2 to charge
the offense as a felony. After the
commencement of a jurisdictional hearing but prior to its completion, the
People moved to dismiss the allegations of counts 2 and 3, and the minor
admitted the allegations of count 4. The
court granted the People’s motion to dismiss counts 2 and 3, adjudged the minor
to be a ward of the court to remain in the custody of his guardian, and granted
probation for a term of 24 months.
The minor filed a timely
DISCUSSION
I. Motion to Suppress
A. Standard of Review
“An appellate court’s review of a
trial court’s ruling on a motion to suppress is governed by well-settled
principles. [Citations.] [¶] In ruling on such a motion, the trial
court (1) finds the historical facts, (2) selects the applicable rule of law,
and (3) applies the latter to the former to determine whether the rule of law
as applied to the established facts is or is not violated. [Citations.]
‘The [trial] court’s resolution of each of these inquiries is, of
course, subject to appellate review.’
[Citations.] [¶] The court’s
resolution of the first inquiry, which involves questions of fact, is reviewed
under the deferential substantial-evidence standard. [Citations.]
Its decision on the second, which is a pure question of law, is
scrutinized under the standard of independent review. [Citations.]
Finally, its ruling on the third, which is a mixed fact-law question
that is however predominantly one of law, . . . is also subject to independent
review.†(People v. Williams (1988) 45 Cal.3d 1268, 1301; see also
Cal.4th 225, 255.)
All presumptions favor the trial
court’s exercise of its power to judge the credibility of the witnesses,
resolve any conflicts in the testimony, weigh the evidence, and draw factual
inferences, “ ‘and the trial court’s findings on such matters, whether express
or implied, must be upheld if they are supported by substantial evidence.’ †(People
v. Leyba (1981) 29 Cal.3d 591, 596-597, quoting People v. Lawler (1973) 9 Cal.3d 156, 160; see also
Cal.App.4th 1232, 1236.) And where
there is no controversy concerning the underlying facts, our task is
simplified: The only issue is whether
that rule of law, as applied to the undisputed historical facts, was or was not
violated. This is an issue for our
independent review. (See
811, 818.)
B. Parties’ Contentions
The minor contends that his
detention by Officer Rosas—i.e., the traffic stop—cannot be justified as a
follow through with the particularized truancy detention and arrest
requirements. He argues that “truancy
was a pretext because Officer Rosas did not conduct a truancy
investigation.†That being the case, the
minor argues, his detention must be analyzed under the more general standard of
determining whether the officer has sufficient objective facts that would
create a reasonable suspicion in the officer’s mind that the minor was engaging
in, or had engaged in criminal activity that justified detaining him. The minor argues further that under this
standard, the detention was unlawful because there were no facts supporting a
reasonable suspicion of criminal activity on the part of the minor.
The Attorney General responds that
Officer Rosas acted properly in detaining and arresting the minor for
truancy. She contends further that the
officer had a reasonable suspicion that the minor “and his companions had
planned criminal activity and, having been thwarted, were attempting to flee.â€
alternative argument under People v.
Brendlin (2008) 45 Cal.4th 262 that, even assuming the minor was
unlawfully detained, “any connection between an antecedent illegality and the
discovery of evidence was attenuated.â€
C. Applicable
Law
1. Detentions
under the Fourth Amendment
The legal basis upon which a peace
officer may detain a citizen has been explained as follows: “[I]n order to justify an investigative stop
or detention the circumstances known or apparent to the officer must include
specific and articulable facts causing him to suspect that (1) some activity
relating to crime has taken place or is occurring or about to occur, and
(2) the person he intends to stop or detain is involved in that
activity.†(In re Tony C. (1978) 21 Cal.3d 888, 893, superseded on other
grounds by Cal. Const., art. I, § 28.)
that an investigative stop or detention predicated on mere curiosity, rumor, or
hunch is unlawful, even though the officer may be acting in complete good
faith. [Citation.]†(In re
Tony C., supra, at p. 893, citing
Terry v. Ohio (1968) 392 U.S. 1,
22.)
In determining the lawfulness of a
temporary detention, courts look at the “ ‘totality of the circumstances’
of each case to see whether the detaining officer has a ‘particularized and
objective basis’ for suspecting legal wrongdoing.†(United
States v. Arvizu (2002) 534 U.S. 266, 273, quoting United States v. Cortez (1981) 449 U.S. 411, 417; see also
Cal.4th 224, 239.) This standard of
“ ‘reasonable suspicion’ . . . [is one] less demanding than probable cause ‘not
only in the sense that reasonable suspicion can be established with information
that is different in quantity or content than that required to establish
probable cause, but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show probable cause.’
†(People
v. Souza, at pp. 230-231, quoting Alabama
v. White (1990) 496 U.S. 325, 330.)
And as the United States Supreme Court has noted, “The concept of
reasonable suspicion, like probable cause, is not ‘readily, or even usefully,
reduced to a neat set of legal rules.’ [Citation.]†(United
States v. Sokolow (1989) 490 U.S. 1, 7-8, quoting Illinois v. Gates (1983) 462 U.S. 213, 232.) A person is deemed to have “ ‘been “seizedâ€
within the meaning of the Fourth Amendment’ [citation] . . . ‘only if, in view of all of the
circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave.’ †(
567, 573, fn. omitted, quoting United
States v. Mendenhall (1980) 446 U.S. 544, 554; see also
Cal.3d 777, 790-791.)
2. Truancy
Arrests
All children between the ages of
six and 18 years old are, unless exempted, “subject to compulsory full-time
education.†(Educ. Code, § 48200;
see In re Humberto O. (2000) 80
Cal.App.4th 237, 241.) Pursuant to
Education Code section 48264, “. . . a peace officer . . . may arrest or assume
temporary custody, during school hours, of any minor subject to compulsory
full-time education or to compulsory continuation education found away from his
or her home and who is absent from school without valid excuse within the
county, city, or city and county, or school district.†And one arresting a minor for truancy “. . .
shall forthwith deliver the minor either to the parent, guardian, or other
person having control, or charge of the minor, or to the school from which the
minor is absent, . . .†(Educ. Code, § 48265.)
The California Supreme Court addressed the
question of truancy arrests in the context of detentions under the Fourth
Amendment generally in In re James D. (1987)
43 Cal.3d 903. There, the minor,
who appeared to be 15 to 16 years old, was stopped by a police officer for
suspected truancy at 10:30 a.m. while the minor was walking on a sidewalk
carrying a book bag. (
shoved his hand beneath his jacket,†resulting in the officer performing a pat
search for weapons which ultimately resulted in the discovery of LSD. (Ibid.) After
his arrest for possession of a controlled substance, the minor moved to
suppress the evidence as being the product of an unlawful detention. (Ibid.)
After reviewing California’s
truancy statutes and detentions under the Fourth Amendment (
detentions based upon a reasonable suspicion of truancy were appropriate in
light of the important state interest of enforcing the state’s compulsory
education statutes and the minimal intrusion created by such detentions. (Id.
at p. 915.) Adapting the reasonable
suspicion standard generally applied for detentions under the
the court held that “[a] detention to investigate whether a person is a truant
is justified when there are specific and articulable facts causing an officer
to suspect, reasonably, that a truancy
violation is occurring, and that the person he intends to detain is a
truant.†(In re James D., at p. 916, fn. omitted; see also
officer are sufficient, the court concluded that “[y]outhful appearance . . .
is a highly relevant and objectively verifiable factor in determining the propriety of a truancy detention.†(In re
James D., at p. 917.) The high
court cautioned that such detentions may not be used as a ruse for a
generalized criminal investigation:
“Questioning must, of course, be strictly limited to the purpose of the
stop. [Citation. . . . T]he sole purpose
of a truancy ‘arrest’ is to return the absent student to school as
expeditiously as possible. Therefore,
‘[t]he “arrest†that takes place under [Education Code] section 48264 is a
severely limited type of arrest and may not be used as a pretext for
investigating criminal matters.’
[Citations.] Likewise, the sole
purpose of a truancy detention is to investigate whether a particular person is
a truant, and if he is in fact a truant, to place him under a[n Education Code]
section 48264 ‘arrest’ in order to return him to school.†(Id.
at pp. 915-916.)
D. Analysis
of Claim of Error
As we have noted, a court decides
whether a temporary detention is lawful by evaluating “the totality of the
circumstances.†(United States v. Cortez,
Cal.3d at p. 918 [validity of stop to question suspected truant depends on
evaluation of whether “under the circumstances†reasonable grounds existed for
truancy detention].) Here, the facts are
not in dispute, and the court specifically found the two prosecution witnesses,
Beteran and Officer Rosas, to be credible, a finding to which we give
deference. (See People v. Leyba, supra,
29 Cal.3d at pp. 596-597.) The record
here demonstrates that Officer Rosas was aware of the following circumstances
prior to conducting a traffic stop of the SUV driven by the minor: (1) a vehicle that a school employee thought
“suspicious†was traveling slowly down a road near campus, coming from an area
consisting of abandoned housing; (2) the SUV was observed by a campus monitor
located at a seldom-used school entrance; (3) Marina High School was a closed
campus in which students were not supposed to leave for lunch or at any other
time during school hours; (4) the SUV contained three persons whom the officer
believed to be juveniles; (5) Officer Rosas thought that the SUV was being
driven fast to prevent him from following it; and (6) after spotting the SUV
several minutes later on city streets away from the high school, the rear
passenger “duck[ed] down†as the SUV passed the patrol car. Under In
re James D., supra, 43
Cal.3d at page 916, these circumstances constituted “specific and
articulable facts causing an officer to suspect, reasonably, that a
that the person he intend[ed] to detain [was] a truant.†(See id.
at p. 917 [truancy detention may be justified given youthful appearance of
person carrying book bag and his presence three miles from nearest school while
school was in session]; In re Humberto O,
supra, 80 Cal.App.4th at p. 242
[same].)
The minor argues that the
truancy detentions does not apply here because once Officer Rosas effected the
traffic stop, he did not pursue whether the minor and his companions were in
fact truants. We disagree.
The first questions Officer Rosas
directed to the three juveniles concerned their ages—a critical aspect of
determining whether any or all of them might be truants. He then asked the minor for his driver’s
license. Given, as we have concluded
above, that Officer Rosas had already lawfully stopped the SUV for purposes of
investigating the possible truancy of its driver and passengers, the officer
was entitled to demand that the minor present his driver’s license. (Veh. Code, § 12951, subd. (b) [motor
vehicle driver required to present driver’s license upon officer’s demand]; see
People v. Saunders (2006) 38
Cal.4th 1129, 1137 [after “pickup had lawfully been stopped, the police
were entitled to demand the driver’s license and registrationâ€].) Moreover, while the minor discounts the
relevance of a driver’s license to a truancy investigation and argues that it
demonstrates the officer’s claim of a truancy detention was pretextual, a
driver’s license includes identifying matter such as the individual’s name, age
and mailing address, which would be highly relevant in verifying whether the
minor was a truant. (See Veh. Code,
§ 12811, subd. (a)(1)(A).) And
after the minor responded that he did not have a driver’s license, Officer
Rosas’s next questions to the juveniles, asking them to identify themselves,
were also reasonably related to determining whether they might be truants.
Moreover, the fact that the officer
did not ask where the juveniles went to school or ask other questions directly
pertinent to whether they were truants—contrary to the minor’s contention—does
not invalidate the truancy detention.
The Supreme Court in In re James
D. rejected a similar argument: “Our
review of the record discloses the officers’ conduct and questions were within
the strictly limited purposes of the detention, i.e., to determine whether
defendant was a truant. [Citation.] The officers first asked for defendant’s
identification; being told he had none, they asked his destination and from
whence he had come. All of these
questions reasonably were designed to determine whether defendant was a truant,
and we would not conclude the questioning exceeded the permissible scope of the
stop merely because we might be able to fashion more direct and piercing
questions that may have gone to the root of the matter a bit sooner.†(In re
James D., supra, 43
Cal.3d at p. 918, fn. 8.)
Lastly, we reject the minor’s claim
that the truancy detention was unlawful because “truancy was a pretext.†This suggests that the traffic stop violated
the Fourth Amendment because Officer Rosas was motivated not by a desire to
investigate the juveniles’ possible truancy; rather, the officer wanted to use
truancy as a ruse to conduct a criminal investigation. While we find little support for this
position in the record, the claim has no merit, because the subjective
motivations of Officer Rosas are not relevant to whether there were sufficient
articulable facts forming the basis for a reasonable suspicion of truancy. (See Whren
v. United States (1996) 517 U.S. 806, 813 [“constitutional reasonableness
of traffic stops†is not dependent upon “the actual motivations of the
individual officers involvedâ€].) As we
have noted, there were sufficient articulable facts here to support the truancy
detention. And the questioning by
Officer Rosas was, as we have observed, “strictly limited to the purpose of the
[truancy] stop.†(In re James D., supra, 43
Cal.3d at p. 915.)
There was substantial evidence
supporting the court’s finding that Officer Rosas was justified in detaining
the minor and his two companions to investigate their possible truancy. (In re
James D., supra, 43
Cal.3d at p. 916.) Upon learning
soon after the traffic stop that the minor was driving the SUV without a valid
license, the officer was legally justified in impounding the vehicle and
performing an inventory search incident to that impound. (See Veh. Code, § 22651, subd. (p);
Cal.App.4th 367, 373.) Therefore,
the court did not err in denying the minor’s motion to suppress.
II. Probation Conditions
The minor challenges seven
probation conditions (numbers 10, 11, 12, 16, 17, 19, and 21) imposed by the
court. Each challenged probation
condition is discussed below.
Law
A juvenile court is empowered to
impose upon a ward placed on probation “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).) “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.]â€
(In re Sheena K. (2007) 40
Cal.4th 875, 889.) This discretion
is in fact broader with respect to the imposition of probation conditions for
juveniles than it is for adult offenders.
(In re E.O. (2010) 188
Cal.App.4th 1149, 1152; see also In re
Sheena K., at p. 889 [probation condition that may be unconstitutional for
adult offender may be permissible for minor under juvenile court’s
supervision].)
Both adult offenders and juveniles
may challenge a probation condition on the grounds that it is
unconstitutionally vague or overly broad.
(See Sheena K.,
mentioned in the same breath, they are conceptually quite distinct. A restriction is unconstitutionally vague if
it is 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.†’ [Citation.] A restriction failing this test does not give
adequate notice—“fair warningâ€â€”of the conduct proscribed. [Citations.]
A restriction is unconstitutionally overbroad, on the other hand, if it
(1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully
and reasonably related to the compelling state interest in reformation and
rehabilitation.’ [Citations.] The essential question in an overbreadth
challenge is the closeness of the fit between the legitimate purpose of the
restriction and the burden it imposes on the defendant’s constitutional
rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.†(In re
E.O., supra, 188 Cal.App.4th at
p. 1153; see also In re Victor L. (2010)
182 Cal.App.4th 902, 910.)
Any objection to the reasonableness
of a probation condition is forfeited if not raised at the time of
imposition. (See In re Justin S. (2001) 93 Cal.App.4th 811, 814; see also
conditions on their face, however, may be raised on appeal without objection in
the court below. (Sheena K., at pp. 887-889.)
B. School
Attendance Condition (No. 10)
The minor challenges the last
sentence of Condition Number 10, concerning school attendance, which
reads: “If you are not in school that
day for any reason, including illness or suspension, you are not to leave your
home unless it is for a doctor’s appointment.â€
overbroad, arbitrary and capricious.â€
(Initial capitalization omitted.)
The minor contends further that the condition is unduly restrictive and
infringes upon his right to travel. He
also asserts that “[a] doctor’s appointment is one of a number of legitimate
reasons why a student might be physically absent from school and required to leave
his home. Appellant could be required to
get medicine from a pharmacy, complete community service or attend a
funeral.†The minor does not suggest an
appropriate modification to the condition.
We agree with the Attorney General
that the condition is not vague, arbitrary, or capricious as claimed by the
minor. In general, a probation condition
which requires a ward to attend school is valid and enforceable. (In re
Gerald B. (1980) 105 Cal.App.3d 119, 124-125.) Here there was no ambiguity with respect to
the condition, and the minor points to nothing in the record to suggest that
requiring school attendance is an “arbitrary†or “capricious†condition in this
instance. We do agree with the minor,
however, that the condition is overly broad in that it recognizes only one
reason for not staying home on school days (attendance at a doctor’s
appointment). There may be special
circumstances other than illness requiring attendance at a doctor’s
appointment, such as family emergencies or funerals, in which a student might
be legitimately absent from school and not at home. Accordingly, we will order the last sentence
of condition number 10 modified to read:
“If you are not in school that day for any reason, including illness or
suspension, you are not to leave your home unless it is for a doctor’s
appointment, or, with advance approval from your Probation Officer, for some
other necessary and appropriate reason.â€
C. Association/Gang
Conditions (Nos. 11 and 12)
Both condition number 11
and condition number 12
name="_ftnref13" title="">[13]
concern association with gangs and visiting any locations known to be
frequented by gang members. The minor
challenges the conditions, contending that the term “gang†“is overbroad
because [it] is not defined.†He also
argues that language in condition number 11 requiring the approval of his
associates by his “parents/guardians is overbroad, vague, arbitrary, and
capricious†because there is no requirement that he be advised in advance of
the persons he should avoid, and the term “associates†contains no definition.
The Attorney General responds that,
insofar as the minor argues that the term “gang†is not defined, the problem
may be easily cured by referencing the statutorily defined term,
subdivisions (e) and (f). We concur that
any defect with respect to this aspect of these two conditions may be remedied
in this fashion. Following a 1998
decision of the Fifth District Court of Appeal (People v. Lopez (1998) 66 Cal.App.4th 615, 632-634, 638) and
subsequent cases congruent with Lopez (see,
e.g., In re H. C. (2009) 175
Cal.App.4th 1067, 1072; In re
Vincent G. (2008) 162 Cal.App.4th 238, 247), we will order the
probation conditions modified to define the term “gang†as a “criminal street
gang†pursuant to section 186.22, subdivision (f).
Additionally, the Attorney General
does not object to the inclusion of language in condition number 11 that the
minor have advance knowledge of the approval or disapproval by his parents or
guardians of any proposed associates. We
believe such a modification is appropriate.
(See, e.g., In re H. C.,
[modifying probation condition to prohibit minor’s association with
probationer, parolees, or gang members to require minor’s knowledge of that
status]; People v. Lopez,
[modifying probation condition prohibiting association with gang members to
include probationer’s knowledge that person is gang member];
Cal.App.4th 97, 102 [modifying probation condition prohibiting association
with felons, ex-felons, and users and sellers of narcotics to require
probationer’s knowledge of that status].)
The minor cites
1351 (O’Neil) in support of his
challenge to the portion of condition number 11 indicating that his “associates
are to be approved by your parents/guardians . . .†There, the trial court imposed the following
condition: “ ‘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.’ †(Id.
at p. 1354.) The reviewing court
observed that, “[a]s written, there are no limits on those persons whom the
probation officer may prohibit defendant from associating with.†(Id.
at p. 1357.) It noted that the condition
failed to “identify the class of persons with whom defendant may not associateâ€
or “provide any guideline as to those with whom the probation department may
forbid association.†(
court explained that while a trial court “may leave to the discretion of the
probation officer the specification of the many details that invariably are
necessary to implement the terms of probation,†“the court’s order cannot be
entirely open-ended.†(
standard, the order is too broad and it is not saved by permitting the
probation department to provide the necessary specificity.†(Id.
at p. 1358, fn. omitted.) As a
caveat, the court noted that it was dealing with conditions of adult probation
and “[c]onditions of juvenile probation may confer broader authority on the
juvenile probation officer than is true in the case of adults [citations].†(Id.
at p. 1358, fn. 4.)
O’Neil
is not dispositive. It concerned a
probation condition giving a probation officer, not a parent or guardian, broad
discretion in determining the persons with whom the probationer could
associate. And it involved an adult
offender, not a juvenile, a distinction specifically noted by the
supra, 165 Cal.App.4th at
p. 1358, fn. 4.)
In In re Frank V. (1991) 233 Cal.App.3d 1232 (Frank V.), the minor “challenge[d] as overbroad the condition
limiting his right of association to those approved by his probation officer or
parents.†(Id. at p. 1243.) The
juvenile court told the ward that, if his mother, father, or probation officer
instructed him to not associate with certain persons, he could not “hang
around†or “hang out†with them. (
juvenile court acts in parens patriae,
upheld the probation condition: “The
juvenile court could not reasonably be expected to define with precision all
classes of persons which might influence [the minor] to commit further bad
acts. It may instead rely on the
discretion of his parents, and the probation department acting as parent, to
promote and nurture his rehabilitation.â€
(Id. at p. 1243.)
Similarly, the court in
1013 (Byron B.), rejected the minor’s
challenge to a probation condition prohibiting contact with any person
disapproved by a parent or probation officer.
It held that the condition was not overly broad (id. at p. 1017), and concluded that “[t]he juvenile court,
acting in parens patriae, could limit
appellant’s right of association in ways that it arguably could not limit an
adult’s.†(Id. at p. 1018.) In
rejecting the claim that the probation condition was overly broad, the court in
Byron B. distinguished another case,
(Kacy S.), relied on by the minor
here. (Byron B., at pp. 1017-1018.)
In Kacy S., a probation
condition required a minor to “ ‘not associate with any persons not
approved by his probation officer.’ †(
condition “literally requires the probation officer to approve [the minor’s]
‘associat[ion]’ with ‘persons’ such as grocery clerks, mailmen and health care
providers.†(Id. at p. 713.) The
language “not approved†there was not present in the probation conditions
challenged in the case before it or in Frank
V., supra, 233 Cal.App.3d 1232.
(Byron B., at p. 1017.)
Although the “not approvedâ€
language in Kacy S. is not found in
the probation condition before us, we nonetheless conclude that the parental
approval language in condition number 11 is overly broad. In stating that the minor’s “associates are
to be approved by [his] parents or guardians,†the condition is similar to the
overly broad condition in Kacy S.,
prohibiting any association by the minor (both casual day-to-day contact, as
well as acquaintanceship and friendship) with all persons not approved by his
parents or guardians. It is a sweeping
provision which would be likely to include many unintended persons posing no
harm to the minor’s reformation and rehabilitation. We will therefore order this portion of
condition number 11 modified to prohibit the minor from knowingly associating
with any person of whom he knows his parents disapprove; this condition, as
revised, will accomplish the salutary objective of preventing harmful
associations but avoid unnecessary governmental interference with associational
rights.
In summary, we agree with some of
the challenges asserted by the minor to condition numbers 11 and 12. We will accordingly order that condition
number 11 be modified to read as follows:
“You shall not associate with any person when that person is known to
you to be someone of whom your parents/guardians disapprove, and you shall not
associate/communicate with Miguel [] and Alejandro [], or any individuals
identified by your Probation Officer as a threat to your successful completion
of Probation. You are not to associate
with anyone known to you to be a member of any gang as directed by your
Probation Officer. You are not to
associate with any individuals known by you to be on Probation or Parole (adult
or juvenile). As used here, ‘gang’ means
a criminal street gang as defined in Penal Code section 186.22, subdivision
(f).†We will modify condition number 12
to insert the following sentence at the end of the condition: “As used here, ‘gang’ means a criminal street
gang as defined in Penal Code section 186.22, subdivision (f).â€
D. Substance Abuse Condition
(No. 16)
Condition number 16 concerns the
use and possession of alcohol, narcotics, other controlled substances, and
narcotics paraphernalia.
name="_ftnref16" title="">[16] The minor challenges a portion of the
condition reading as follows: “Do not
inhale or attempt to inhale or consume any substance of any type or nature,
used as paint, glue, plant material, or any aerosol product.†He argues that the provision is “vague and
overbroad.†He asserts that “[i]t is
virtually impossible to use the substances listed without inhaling them. Appellant could be found in violation for
using any aerosol, which is easily inhaled with use. Also, these substances could be inhaled by
being in the same room where they are being used.†The minor also argues that because of its breadth,
the condition improperly restricts his right to travel.
The Attorney General responds that
the minor’s position lacks merit. She
argues that the minor’s reading of the challenged portion of condition number
16 is incorrect, and that because of the phrase “attempt to inhale,†the sentence
prohibits only intentional inhalation of the enumerated substances.
It seems clear from the context of
the entirety of condition number 16 that the challenged sentence is directed
simply toward the intentional inhalation of certain products for the express
purpose of causing intoxication. In this
respect, the minor’s challenge seems to be a forced reading of the sentence
prohibiting inhalation or attempted inhalation of the enumerated products. We believe that any deficiency can be readily
cured by modifying the sentence to read:
“Do not intentionally inhale or attempt to inhale or consume any
substance of any type or nature, used as paint, glue, plant material, or any
aerosol product for the purpose of becoming intoxicated.â€
E. Prescription Medicine
Condition (No. 17)
The minor objects to condition 17
concerning the use of prescription medications.
language: “You must notify any treating
physician of your substance abuse problems before accepting any medication.†He contends that there is no evidence in the
record indicating the he has a substance abuse problem and therefore the
condition should be stricken or modified.
We agree with the Attorney General
that this claim is not cognizable on appeal.
The minor’s claim raises no constitutional issue and he failed to assert
it below. It is therefore
forfeited. (See Sheena K., supra, 40
Cal.4th at p. 883, fn. 4; In re Justin S.,
supra, 93 Cal.App.4th at p. 814.)
F. Weapons Condition (No.
19)
Condition number 19 reads: “You shall not possess any weapons or any
type of ammunition.†The minor asserts
that this condition is vague because the term “weapons†is not defined. He argues:
“Virtually anything can be used as a weapon, among other things, a
[broken] bottle . . . a rope . . . [or] a candlestick can be used as a
weapon.â€
The Attorney General seemingly
concedes that the term “weapons†should be defined in some way and does not
object to some modification of the probation condition. She takes no position, however, on whether
the modification should include a specification of particular forbidden weapons
or a requirement that the minor intend to use the object as a weapon.
We agree that the term “weaponsâ€
requires some clarification. We will
therefore order the probation condition modified to read as follows: “You shall not possess any firearms, knives,
or other dangerous or deadly weapons, or any type of ammunition.†(See In
re R.P. (2009) 176 Cal.App.4th 562, 568 [rejecting challenge to probation
condition prohibiting possession of dangerous or deadly weapons].)
G. Curfew Condition (No. 21)
Lastly, the minor challenges
certain aspects of probation condition number 21 concerning curfew. The condition reads: “You are not to be out of your home between
8:00 p.m. and 6:00 a.m. without approval of your Probation Officer.†The minor argues that the condition is
invalid because under Welfare and Institutions Code section 729.2, subdivision
(c), curfew does not begin until 10:00 p.m.
commencement of curfew from 8:00 p.m. to 10:00 p.m., the minor argues that,
consistently with the same statute, the condition should be modified to include
an exception in the event the minor is accompanied by a parent or legal
guardian.
We agree with the Attorney General
that this claim is not cognizable on appeal.
The challenge raised by the minor is not of constitutional dimension,
and is therefore forfeited. (See
93 Cal.App.4th at p. 814.)
name="_ftnref19" title="">[19]
DISPOSITION
The dispositional order is modified
as follows: (1) As to probation
condition number 10, strike the last sentence and replace it with the
following: “If you are not in school that
day for any reason, including illness or suspension, you are not to leave your
home unless it is for a doctor’s appointment, or, with advance approval from
your Probation Officer, for some other necessary and appropriate reason.†(2) As to probation condition number 11,
strike it in its entirety and replace it with the following: “You shall not associate with any person when
that person is known to you to be someone of whom your parents/guardians
disapprove, and you shall not associate/communicate with Miguel [] and
Alejandro [], or any individuals identified by your Probation Officer as a
threat to your successful completion of Probation. You are not to associate with anyone known to
you to be a member of any gang as directed by your Probation Officer. You are not to associate with any individuals
known by you to be on Probation or Parole (adult or juvenile). As used here, ‘gang’ means a criminal street
gang as defined in Penal Code section 186.22, subdivision (f).†(3) As to probation condition number 12,
insert the following sentence at the end of the condition: “As used here, ‘gang’ means a criminal street
gang as defined in Penal Code section 186.22, subdivision (f).†(4) As to condition number 16, strike the
third sentence, and replace it with the following: “Do not intentionally inhale or attempt to
inhale or consume any substance of any type or nature, used as paint, glue,
plant material, or any aerosol product for the purpose of becoming
intoxicated.†(5) As to condition number
19, strike it in its entirety, and replace it with the following: “You shall not possess any firearms, knives,
or other dangerous or deadly weapons, or any type of ammunition.â€
As so modified, the dispositional
order is affirmed.
Márquez,
J.
WE CONCUR:
Premo, Acting P.J.
Mihara, J.
The facts are taken from the testimony provided at the hearing on the minor’s motion
to suppress.
Because the area from which the SUV came was an area of abandoned housing,
Beteran testified that “there’s nobody that comes [from there] . . . during
lunch time.â€
