In re Julio H.

















Filed 6/28/12 In re Julio H. CA1/2

>

>

>

>

>

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO




>

In re JULIO H., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. JULIO H., Defendant and Appellant.	A132657 (Alameda County Super. Ct. No. SJ11016784)

Julio H.
appeals from orders declaring him a ward of the juvenile court and placing him
on probation in the home of his parents after his admission of a count of
unlawful intercourse with a minor. He
challenges the court’s dispositional order as an abuse of discretion and denial
of due process in that it was based on
unsupported and inaccurate understanding of the facts. He further argues that the court abused its
discretion in setting his offense as a felony and in imposing certain
conditions of probation, and that the minute
order from the June 6, 2011
hearing must be corrected to properly reflect the court’s oral
pronouncements. Appellant’s fundamental
claim is that the juvenile court improperly viewed him as a sexual predator
rather than a normal teenage boy.

We will
modify the conditions of probation in certain respects and affirm.

>STATEMENT OF THE CASE AND FACTS

On April 15, 2011, a petition was filed
alleging that appellant, then 15 years eight months old and in ninth grade,
came within the provisions of Welfare and Institutions Code section 602,
subdivision (a), in that he committed a lewd and lascivious act upon a child
under 14 years of age (Pen. Code, § 288, subd. (a)) and engaged in sexual
intercourse with a minor more than three years younger than himself (Pen. Code,
§ 261.5, subd. (c)). On May 5, at
the request of the prosecution, the second count of the petition was amended to
allege unlawful intercourse with a minor
(Pen. Code, § 261.5, subd. (a)).
Appellant admitted the amended count and the first count was dismissed,
“with facts and restitution open.”

According
to police reports and the dispositional report, on January 25, 2011, 12-year-old Jane Doe told her
mother that she had been sexually assaulted by an unknown person and thought
she was pregnant. Jane was initially
evasive with the police officer who spoke with her, then admitted there had
been no assault and she had had consensual sexual intercourse with a
friend. Jane told the officer that she
met appellant on Facebook and that he was a high school student who frequented
her school. At about 3:45 p.m. on January 10, she
unexpectedly came upon appellant in front of her school. They chatted for a few minutes, then
appellant invited her to his house to study.
She agreed and they went to his house, where Jane discovered no one else
was home. She and appellant studied in
his bedroom, and when they were finished, they began kissing each other consensually
on his bed. Jane stated that as the
kissing “got heated,” appellant asked if she “ ‘wanted to do
it.’ ” She understood “it” to mean
sexual intercourse and said, “ ‘Sure.’ ” They disrobed themselves and appellant lay on
top of her and attempted to insert his penis into her vagina. Jane said that because she had never had any
kind of sexual activity, appellant was only able to insert his penis half way
into her vagina. They were having so
much difficulty with the sexual intercourse that after about a minute they both
decided to stop. She got dressed and
went home. Jane stated that she and
appellant are still friends. She lied to
her mother about having been sexually assaulted because she feared her mother
would be angry at her for having consensual sex and getting pregnant. Jane’s mother later told the police officer
that earlier in the year Jane had admitted having a “ ‘crush’ ” on
appellant.

When
interviewed on February 1, 2011,
appellant said he knew Jane was a middle school student, knew she was in either
sixth or seventh grade, and did not know how old she was. They had started “talking” on Facebook within
the past month and he ran into her in front of her school as he was walking
home from his. Jane came to his house
twice at his invitation and his mother was home both times. On both occasions, Jane orally copulated him
in his bedroom; on the second, they had sexual intercourse. In response to his question, she said she was
a virgin. He asked if she wanted to
“ ‘do it’ ” and she first said no, then when he asked again said she
did. She lay on her back on the bed, he
lay on top of her and inserted his penis into her vagina, and after about three
or four minutes she asked him to stop and he did. She got dressed and left and he had not seen
her since.

Appellant’s
mother described him as a quiet and friendly kid who had never been in trouble,
did what he was supposed to do at home, and was a good student. She told the probation officer that she was
at home at the time of the incident, but thought appellant and Jane were just
studying. She said she would be more
aware who appellant brings home in the future.

Appellant
was polite during his interview with the probation officer, and described
himself as a good kid. He said he liked
school and had never been in trouble, that he needed to improve some of his
grades and do things his mother tells him to do without complaining, that he
had never used drugs or alcohol, and that he liked to hang out with friends and
play basketball and soccer. He said that
he and Jane had consensual sexual intercourse and that he had learned he was
too young to have sexual intercourse and should get to know the person better
if he decides to have sexual intercourse.

The
probation officer stated that appellant appeared to be a “good kid,” a good
student with no problems at home, who realized how serious his offense was,
acknowledged his mistake, and was willing to cooperate with probation and “do
anything that will help prevent him from making the same mistake.” The probation officer viewed the incident as
a misdemeanor level offense, noting that the victim was not afraid of
appellant, there was no violence, the conduct was consensual, and “the only
inappropriate thing is their age.” The
probation department recommended that the court declare appellant a ward, with
care, custody, control and conduct under the supervision of the probation
officer, to reside in his parents’ home.
Among the recommended conditions of probation were that appellant be at
home by 6:00 p.m. every day unless with a parent or legal guardian or with
prior permission from the probation officer; not be on the campus or grounds of
any school “unless enrolled, accompanied by a parent or legal guardian or
responsible adult, or authorized by the prior permission of school
authorities”; have no contact or association with Jane; and participate in a
sex offender program.

At the
disposition hearing on June 6, 2011, the prosecutor asked the court to set the
level of offense as a felony, stating that she was disturbed by the tenor of
the probation report and recommendation that the level be set at
misdemeanor. The prosecutor noted that
the victim had turned 12 five days before the event and described appellant as
having gone to her middle school “to make contact with her, invited her to his
house, quote unquote, to do homework, after being [sic] he brought her directly into his bedroom, sat on the bed with
her, and after five minutes of being there with her, begins kissing with her
and then begins to engage in a sexual contact with her all the way up to sexual
intercourse.” Stating that the
difference in age made it inappropriate for appellant and the victim to have
any sexual contact, the prosecutor commented, “[t]he officer who writes the
probation report says that it was consensual, except at her age, she can’t
consent.” In response to the court’s
question, the prosecutor confirmed that Jane Doe was a sixth grader.

Defense
counsel emphasized the “unfortunate reality in this day and age” that “sex
among people of [the victim’s age] is quite regular.” Acknowledging that appellant’s conduct was
criminal, and that appellant needed education, rehabilitation and guidance to
“develop his sexuality as he enters adulthood,” defense counsel stressed that the
offense was a “nonforcible statutory rape,” and argued that the prosecutor’s
portrayal of appellant as “some kind of predator” was not appropriate. Counsel urged that a misdemeanor level and a
“4C” was appropriate. Appellant’s brief
represents that “4C” is a term used by the Alameda County Juvenile Court to
describe an order placing a minor on formal probation, as contrasted with a
“3C” order for out-of-home placement.

The
probation officer (not the one who authored the report) recommended that the level
of the offense be set at felony with the understanding that it would be reduced
to a misdemeanor upon successful completion of probation.

The court
stated, “I do believe that [appellant] did act as a predator from the day he
met her, the way he brought her to his house.
She is—she was just barely 12 years old. She just had turned 12. In other words, he had contact, a ninth
grader, with an 11-year-old sixth grader and has sex with her just upon her
turning 12. The facts, probably despite
what [defense counsel] indicated about how prevalent sex is among minors, this
is a child who probably wasn’t physically developed enough to have consensual
sex, to have appropriate sex, and that’s why the Minor could only get his penis
halfway into her vagina. Physically, she
was probably incapable of having completed sex.

“There’s a
reason why Penal Code Section 26 makes children under the age of 14 unable to
legally even commit a crime. They cannot
possibly know. Of course there are
extenuating circumstances, being able to give a legal and even logical and
reasonable consent, not only at that age but with such a great difference in
ages, and at that age having a difference of almost four years and three full
grades is a huge difference.

“This is a
predatory act, it’s an extremely serious act, and it’s clearly a felonious
act. The court sets this as a felony.”

Turning to
disposition, the court stated that the probation report was “quite lacking in
information. For instance, the
difference in the grades. It shows the
age, but it doesn’t have a logical discussion about the difference in the
ages. I find that the report in the
reasoning that the victim was not afraid of the Minor, there was no violence,
and it was consensual completely ignores the age difference and, also, ignores
the age of the victim. ‘In concluding,
however, the only inappropriate thing is their age,’ that completely misses the
difference or the significance of the difference in their ages.

“As a
result, I find the recommendation based upon that kind of reasoning
is—I don’t believe is something that in any way can sway the Court. I looked at this as a 3C case.”

The court
set the level of appellant’s offense as felony; adjudged him a ward of the
court; made findings that his welfare required custody to be taken from his
parents, continuance in his parents’ home was contrary to his welfare and
reasonable efforts had been made to prevent or eliminate the need for removal
and committed him to the care, custody and control of the probation officer to
be placed in a suitable foster home, institution or facility. The court then referred appellant to the
Family Preservation Unit (FPU) for screening, set a placement review hearing
for June 20, and found it unnecessary to place appellant on GPS monitoring
pending the FPU screening because his parents would monitor his behavior. It imposed orders including that appellant
“be at his place of residence by the hours of 6:00 p.m. every day unless
he’s with a parent or legal guardian or has prior permission of the Probation
Officer”; that he not be “on the campus of any school unless he’s enrolled and
accompanied by parent, guardian, or authorized by the prior permission of
school authorities” and not “come within 100 yards of any lower school or
middle school”; that he not “come within 100 yards or have any contact with the
victim Jane Doe personally, by telephone, by mail, by electronic means, or by
any third party”; and that he submit to “search of his person, any containers
he may have or own, day or night at the request of a Probation Officer or peace
officer.”

The court
told appellant that it was assuming he was in all other areas of his life “a
good and responsible student and son,” but that he needed to “understand and
appreciate the seriousness of the nature of your activities given the age of
the minor” and that the court found “you engaged in a predatory act with
someone far younger than you, and it is a sexual predatory act.” The court noted that it could “certainly
contemplate” reducing the offense to a misdemeanor if appellant did well, and
that if appellant committed this act as an adult, “you’d be going to State
Prison for a very, very long period of time.”

On June 29,
the probation officer filed a status report relating that the family was willing
to participate in all services recommended by the probation officer and eager
to meet the terms of probation. His
mother wanted to inform the court that she babysits two children, a
nine-year-old and a one-year-old, and sought the court’s approval to
continue. The probation officer asked
the court to order a guidance clinic evaluation that would determine whether
appellant was eligible for the Adolescent Sex Offender Treatment Program at
Juvenile Hall.

At the July
5, 2011 hearing, the prosecutor requested orders that appellant not have
contact with the two young children his mother babysits and not be alone with
any child under 14 years of age without a responsible adult present. The court ordered that appellant not be
present when children are in his mother’s home and not have contact with the
children in the home, stating, “[i]t’s better he stay away from the home while
the children are there.” It further
ordered appellant “not to have any contact with any child that’s under the age
of 14 and especially not in the household or anywhere else as far as that
matter.” The court stated that appellant
had been accepted into family preservation.
The existing order was continued, with the additional probation
conditions, and the court ordered a guidance clinic evaluation.

Appellant
filed a timely notice of appeal on
July 14, 2011.

>DISCUSSION

>I.

Appellant
contends the juvenile court based its dispositional order on unsupported and
inaccurate assumptions that appellant was a sexual predator, that Jane was too
young to know about sexual intercourse and therefore could not agree to engage
in it, and that Jane was too young to physically be able to have sex. According to appellant, the court thus
violated the requirement that its disposition be based on individualized
consideration of the case.

At the
outset, it is necessary to clarify what the trial court actually ordered. According to appellant’s characterization,
the trial court removed him from his parents’ custody and ordered out-of-home
placement, then stayed the order, so that if appellant violates a condition of
probation he immediately will be subjected to out-of-home placement without
benefit of any further hearing.
Appellant’s arguments on appeal, therefore, challenge the imposition of
an order for out-of-home placement.
Respondent states that the court “stayed” its order for out-of-home
placement, but then argues that the court’s “disposition to supervised home
probation” was not an abuse of discretion.

As
described above, the probation report recommended that appellant be placed on
probation in his parents’ home.
Appellant sought a “4C” placement, which he describes on appeal as being
an order for formal probation. The court
viewed the case as a “3C,” which appellant describes as an out-of-home
placement such as a group home or camp.
The court made the findings necessary to remove custody from the parents
and order out-of-home placement, then referred appellant to FPU for
screening. Meanwhile, the court left
appellant in his parents’ home and found GPS monitoring unnecessary. Appellant was subsequently accepted into
family preservation and remained placed in his parents’ home.

Appellant
provides no citation to the record for his assertion that the court stayed an
order for out-of-home placement with the expectation that a probation violation
would automatically result in removal from his parents’ home. The record contains no reference to a
“stayed” or “suspended” placement order, nor did the court warn appellant of a
particular consequence that would follow a violation of probation, such as
occurred in In re Ronnie P. (1992)
10 Cal.App.4th 1079. >Ronnie P. reversed a commitment order
that was based on the court having previously imposed a “ ‘suspended’
Youth Authority commitment under which [the minor] would go to the Youth
Authority if he ‘screw[ed] up’ or got in ‘any further trouble.’ ” (Id.
at pp. 1086-1087.) Here, while the trial court initially ordered
out-of-home placement, it simultaneously ordered an evaluation for FPU, which
ultimately accepted appellant. Appellant
was never, in fact, removed from his parents’ physical custody, and no specific
out-of-home placement was considered, much less ordered.

Moreover, even if the court intended
to impose, but stay, an order for out-of-home placement, a future probation
violation could not result in an automatic
out-of-home placement: While a stay of
commitment can be used by the juvenile court as a “warning tool aimed at
rehabilitation,” it “cannot be automatic or self-executing” and appropriate
findings must be made before the stay is lifted. (In re
Chad S. (1994) 30 Cal.App.4th 607, 614;
In re Jose T. (2010) 191 Cal.App.4th
1142, 1147-1148.) “ ‘[T]he court is
required to examine the entire dispositional picture whenever the minor comes
before the court for disposition. It
cannot treat an earlier order as “self-executing” or “automatic.” ’ (In re
Ronnie P., supra, 10 Cal.App.4th at p. 1088; accord, In re Chad S., supra, 30 Cal.App.4th at p. 613; >In re Kazuo G. [(1994)] 22 Cal.App.4th
[1,] 10-11.)” (In re Jorge Q. (1997) 54 Cal.App.4th 223, 238.)

We conclude the disposition before
us for review is to supervised home probation.
We review a juvenile court’s order for abuse of discretion. (In re
Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) Appellant does not argue that the trial court
abused its discretion in ordering supervised home probation (although, as we
will discuss, he challenges some of the conditions of probation), only that it
abused its discretion in ordering out-of-home placement instead of probation. It is
clear that the order for supervised home probation was well within the court’s
discretion.

Appellant’s fundamental contention
is that the trial court failed to conduct an individualized assessment of his
needs and instead improperly focused on an unsupported view of him as a sexual
predator due to the age difference between appellant and Jane. According to appellant, he is a normal
teenage boy who made friends with a girl on Facebook, invited her to his house
to study, engaged in consensual sexual activity with her, and stopped when she
asked him to. He maintains his behavior
was “a mistake” but “not aberrant, unhealthy or predatory.”

The record supports the trial court’s
contrary view. At the time of the
offense, appellant was 15 years five months old, in ninth grade; Jane was only
days past her 12th birthday, a sixth grader.
Although a high school student, appellant frequented Jane’s middle
school; despite their three-plus year age and three-grade difference, he
invited her to his home, took her to his bedroom and had sex with her. Even the probation report that viewed
appellant’s offense as a misdemeanor (because it was “consensual,” the victim
was not afraid and there was no violence) recognized the inappropriateness of
the age difference. The trial court’s
view that the age difference, at this stage of life, was “huge” and of great
significance did not exceed “the bounds of reason.” (People
v. Giminez (1975) 14 Cal.3d 68, 72.)

Appellant argues the court erred in
viewing him as a sexual predator because he did not engage in predatory conduct
as defined by the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,
§ 6600 et. seq.) or fit the Penal Code’s definition of a “preferential
child molester” (Pen. Code, § 13885.15, subd. (b)). The SVPA defines “predatory” as an act
“directed toward a stranger, a person of casual acquaintance with whom no
substantial relationship exists, or an individual with whom a relationship has
been established or promoted for the primary purpose of victimization.” (Welf. & Inst. Code, § 6600, subd.
(e).) “ ‘[P]referential child
molester’ means a person whose primary sex drive is directed toward
children.” (Pen. Code, § 13885.15, subd. (b).)

Appellant was not charged as or
found to be a sexually violent predator or a preferential child molester. In describing him as a predator, and his
conduct as predatory, we presume the juvenile court was not applying a
statutory definition unrelated to the alleged offense, but rather using the
terms in their colloquial sense to describe exploitative behavior.href="#_ftn1" name="_ftnref1" title="">[1] In viewing appellant’s conduct as predatory,
the court properly focused on Jane’s very young age and inherent vulnerability
to a boy several years older, and appellant’s conduct in seeking out a girl so
much younger than himself for sexual activity, taking her to a place where he
could have sex with her, repeating his request for sex after her initial
refusal, and then taking advantage of her apparent willingness to engage in
sexual intercourse.href="#_ftn2" name="_ftnref2"
title="">[2]

Appellant urges that the court
implicitly acknowledged he was not “the typical sex offender raising concerns
about public safety and of recidivism” because it did not order “sex offender
terms of probation.” But the court did
order appellant to participate in counseling as directed by the probation
officer, including the Adolescent Sex Offender Program, and ordered an
evaluation to determine appellant’s suitability for the Adolescent Sex Offender
Treatment Program.

We cannot accept appellant’s
contention that statutes prohibiting sexual acts against children were designed
solely to prevent exploitation of “very young” children from “substantially
older” molesters. The Legislature has
specifically determined that one who engages in unlawful sexual intercourse
with a minor more than three years younger than the perpetrator is more
culpable than one who engages in such conduct with a minor less than three
years older or younger than the perpetrator.
(Pen. Code, §§ 261.5, subds. (b) and (c).) That more egregious cases exist does not
exempt appellant from this legislative determination.

Appellant
also contests the juvenile court’s stated assumption that Jane was unable to
consent to sexual intercourse because of her young age. As indicated above, in finding Jane could not
have consented, the court referred to Penal Code section 26’s presumption that
children under age 14 are incapable of committing crimes “in the absence of clear proof
that at the time of committing the act charged against them, they knew its
wrongfulness.” Appellant argues the
court’s assumption cannot stand in the face of judicial recognition that the
Legislature’s creation of the crime of unlawful sexual intercourse with a
minor, and corresponding removal of sex with a minor from the definition of
rape, reflected an implicit acknowledgement “that, in some cases at least, a
minor may be capable of giving legal consent to sexual relations” (>People v. Tobias (2001) 25 Cal.4th 327,
333-334), and that minors do willingly engage in sexual intercourse with each
other (see In re T.A.J. (1998) 62
Cal.App.4th 1350, 1361 [rejecting claim of minor’s right to privacy in
consensual sexual intercourse with another minor]). We need not resolve whether Jane was capable
of agreeing to have sex with appellant.
As appellant recognizes, her consent or lack thereof was irrelevant to
the allegations he admitted; the offense of unlawful sexual intercourse with a
minor does not require lack of consent by the victim. In
any case, as we have said, the court did not remove appellant from his parents’
physical custody. Appellant’s challenge to the court’s reliance upon Jane’s
legal or factual inability to consent as the basis for ordering out-of-home
placement has no bearing on the actual disposition to supervised home
probation.

>II.

Under Welfare and
Institutions Code section 702, when a minor is found to have committed an
offense, which in the case of an adult would be punishable as either a felony
or a misdemeanor, the juvenile court must explicitly declare the offense to be
a misdemeanor or a felony. (>In re Manzy W. (1997) 14 Cal.4th
1199, 1204.) Appellant further contends the juvenile court abused its discretion in
setting his offense as a felony.

As noted above, the probation report
viewed the incident as a misdemeanor level offense because the victim
was not afraid of appellant, there was no violence, the conduct was consensual
and “the only inappropriate thing is their age.” The prosecutor, disturbed by the probation
department’s apparent minimizing of the offense, emphasized Jane’s young age
and the difference between the minors’ ages, and the trial court found these
factors to be of great significance.
Rejecting defense counsel’s attempt to portray the incident as typical
sexual activity among minors, the court viewed appellant as having engaged in
predatory conduct and deemed the offense a felony. For the reasons we have discussed,
considering Jane’s age, the more than three years’ difference between her age
and appellant’s, and appellant’s conduct in taking her to his home and having
sexual intercourse with her, the court did not abuse its discretion in viewing
appellant’s conduct as sufficiently egregious to warrant classification as a
felony.

>III.

Appellant
challenges several of the conditions of probation imposed by the court: that he “not have any contact with any child
that’s under the age of 14 and especially not in the household or anywhere else
as far as that matter”; that he not “be on the campus of any school unless he’s
enrolled and accompanied by parent, guardian, or authorized by the prior
permission of school authorities” and not “come within 100 yards of any lower
school or middle school”; and that he submit to “search of his person, any
containers he may have or own, day or night at the request of a probation
officer or peace officer.”

“ ‘The state, when
it asserts jurisdiction over a minor, stands in the shoes of the parents’ (>In re Antonio R. (2000) 78 Cal.App.4th
937, 941 (Antonio R.)), thereby
occupying a ‘unique role . . . in caring for the minor’s
well-being.’ (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500 (>Laylah K.).) In keeping with this role, [Welfare and
Institutions Code] section 730, subdivision (b), provides that the court may
impose ‘any and all reasonable [probation] 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.’

“The permissible scope of
discretion in formulating terms of juvenile probation is even greater than that
allowed for adults. ‘[E]ven where there
is an invasion of protected freedoms “the power of the state to control the
conduct of children reaches beyond the scope of its authority over
adults . . . .” ’
(Ginsberg v. New York (1968)
390 U.S. 629, 638.) This is
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.’ (Antonio R., supra, 78 Cal.App.4th at p. 941.) Thus, ‘ “ ‘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. [(2007)] 40
Cal.4th 875, 889 (Sheena K.); see
also In re R.V. (2009)
171 Cal.App.4th 239, 247; In re
Frank V. (1991) 233 Cal.App.3d 1232, 1242-1243 [rule derives from court’s
role as parens patriae].)” (In re
Victor L. (2010) 182 Cal.App.4th 902, 909-910.)

Nevertheless, “the juvenile court’s discretion in
formulating probation conditions is not unlimited.” (In re
D.G. (2010) 187 Cal.App.4th 47, 52.)
Under the void for
vagueness doctrine, based on the due process concept of fair warning, an order
“ ‘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.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) The doctrine invalidates a condition of
probation ‘ “ ‘so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application.’ ” ’ (>Ibid.)
By failing to clearly define the prohibited conduct, a vague condition
of probation allows law enforcement and the courts to apply the restriction on
an ‘ “ ‘ad hoc and
subjective basis, with the attendant dangers of arbitrary and discriminatory
application.’ [Citation.]” ’ (Ibid.)

“In addition, the overbreadth
doctrine requires that conditions of probation that impinge on href="http://www.fearnotlaw.com/">constitutional rights must be tailored
carefully and reasonably related to the compelling state interest in
reformation and rehabilitation. (>Sheena K., supra, 40 Cal.4th at
p. 890; In re Luis F. (2009) 177
Cal.App.4th 176, 189.)” (>In re Victor L., supra, 182 Cal.App.4th
at pp. 910-911.)

“[J]uvenile probation conditions must be judged by the same
three-part standard applied to adult probations under [People v.] Lent [(1975)]
15 Cal.3d 481: ‘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. ([People
v. Lent, supra, 15 Cal.3d 481,] 486, fn. omitted; see, e.g., >In re Luis F.[, supra,] 177 Cal.App.4th 176, 188; Alex O. v. Superior Court (2009) 174 Cal.App.4th 1176, 1180; >In re G.V. (2008) 167 Cal.App.4th 1244,
1250; In re Antonio C. (2000) 83
Cal.App.4th 1029, 1034 [all holding the Lent
factors are applicable in evaluating juvenile probation conditions].)” (In re
D.G., supra, 187 Cal.App.4th at p. 52-53.)
Additionally, juvenile probation conditions “are permissible only if
‘ “ ‘tailored specifically to meet the needs of the juvenile.’ ” ’ ” [Citation.]
(In re D.G., supra, 187
Cal.App.4th at p. 53, quoting In re
Tyrell J. (1994) 8 Cal.4th 68, 82.)

Appellant
did not object below to the conditions he now challenges. Ordinarily, challenges to the reasonableness
of a probation condition are forfeited if not raised in the trial court. (People
v. Kim (2011) 193 Cal.App.4th 836, 841-842; In re Justin S. (2001) 93 Cal.App.4th 811, 814;
see In re Sheena K.,> supra, 40 Cal.4th at p. 883, fn.
4.) Constitutional challenges can be
raised for the first time on appeal if they present “ ‘pure questions of
law that can be resolved without reference to the particular sentencing record
developed in the trial court.” ’ (>People v. Welch [(1993)] 5 Cal.4th
[228,] 235.)” (In re Sheena K., supra, 40 Cal.4th at p. 889, quoting >In re Justin S.¸ supra, 93 Cal.App.4th
at p. 815, fn. 2.)

>A.

Appellant
urges his challenge to the prohibition against association with children under
age 14 was not forfeited because his attorney did not have an opportunity to
object. The condition was first raised
at the July 5, 2011 hearing, in response to appellant’s mother’s request,
described in the probation report, for the court to approve her continuing to
babysit for her nine-year-old and one-year old nieces at her house. The prosecutor asked for an order that
appellant not be present when his mother was caring for the children, and also
for a probation condition restricting him from being alone with any child under
age 14 unless a responsible adult is present.
Defense counsel submitted. The
court then stated it would follow the recommendation and order the minor not to
be present when the children were in the home.
The court added that appellant was not to have any contact with any
child under the age of 14, in the house or anywhere else. Defense counsel did not object.

Appellant
likens this situation to that in In re
Khonsavanh S. (1998) 67 Cal.App.4th 532, 537, in which the minor
challenged an order for him to undergo AIDS testing to which he had not
objected in the juvenile court. The >Khonsavanh S. court held the claim had
not been forfeited because involuntary AIDS
testing is “strictly limited by statute” and nothing in the record
suggested any statutory basis for such testing or that such testing had been
recommended, requested or considered. (>Id. at p. 537.) The juvenile court simply added the order at
the end of the disposition hearing, so that defense counsel was “utterly
surprised” and “had little opportunity to react.” (Ibid.) Here, by contrast, the question of
appellant’s contact with children was raised generally by the fact of
appellant’s offense and specifically by the probation report relating
appellant’s mother’s request to continue babysitting her nieces. Counsel had reason to expect some condition
regarding appellant’s contact with children even if not the specific condition
imposed. The question of surprise is not
critical, however, given appellant’s constitutional challenge to this
condition. (In re Sheena K., supra, 40 Cal.4th at p. 889.) Appellant contends that the condition
prohibiting him from having contact with children under the age of 14 is
constitutionally infirm because it infringes upon his constitutional rights to
freedom of association and travel. He
argues the condition is unconstitutionally vague and overbroad because it would
apply even if he was unaware an individual with whom he was associating was
less than 14 years old. We agree that a
knowledge requirement is necessary. (>People v. Turner (2007)
155 Cal.App.4th 1432 [probation condition prohibiting association with
persons under age 18 unless accompanied by unrelated responsible adult
required modification to include knowledge requirement, i.e., no association
with persons the defendant knew or reasonably should have known to be under age
18]; In re Justin S., supra, 93
Cal.App.4th at p. 816 [prohibition against association with gang members vague
and overbroad; condition must be restricted to “known gang members”]; People
v. Garcia (1993) 19 Cal.App.4th 97, 102-103 [prohibition against
association with users and sellers of narcotics, felons and ex-felons
unconstitutionally overbroad; modified to refer to persons defendant “knows to
be users or sellers of narcotics, felons or ex-felons”].) The
probation condition must be modified to prohibit appellant from associating
with children he knows, or reasonably should know, to be under 14 years of age.

Appellant is also correct, and
respondent concedes, that the condition as presently worded is overbroad
because it applies everywhere—at
school, at sporting events, at church, at a bus stop, in a relative’s home—and makes no exception for inadvertent
contact. Respondent suggests modifying
the condition to prohibit contact with children under age 14 “at home or at any
school in which [appellant] is not enrolled, unless he is accompanied by his
parent, guardian or a responsible adult, or unless his presence is authorized
by the prior permission of school authorities, or unless the contact has been
approved by his probation officer.” With
the addition of the knowledge component we have discussed, we agree. As so limited, the restriction does not
impermissibly infringe upon appellant’s constitutional rights to freedom of
association and travel or amount to banishment from his community. As stated above, because of juveniles’
greater need for guidance and supervision, and more circumscribed
constitutional rights, “even conditions infringing on constitutional rights may
not be invalid if they are specifically tailored to fit the needs of the juvenile.” (In re
Christopher M. (2005) 127 Cal.App.4th 684, 693; In re Antonio R., supra, 78 Cal.App.4th at p. 941.) The limitation on appellant’s contact with
children under age 14 at home or at a school in which he is not enrolled
addresses the conduct that brought him under the juvenile court’s supervision
and is therefore tailored to meet his needs.

Appellant argues that the condition
restricting his contact with anyone under age 14—rather than solely with Jane—is similar to conditions imposed upon sex offenders with a history of
or propensity for committing sex offenses against minors (People v. Mills (1978) 81 Cal.App.3d 171, 174-175 [adult convicted
of lewd and lascivious conduct on a seven-year-old child required as condition
of probation not to associate with minors under age 18 or frequent places where
such minors congregate unless in the presence of responsible adults];> People v. Urke (2011) 197 Cal.App.4th
766, 775 [properly worded probation condition prohibiting adult convicted of
lewd and lascivious conduct on a minor from associating with minors would
withstand constitutional scrutiny]), and is inappropriate here because he is
not a pedophile or sexual predator and has no history supporting the need for
the condition. Appellant’s argument on
this point —that the condition
is unreasonable “under the facts of the case”—was forfeited by his failure to raise it below. (In re
Justin S., supra, 93 Cal.App.4th at p. 814; In re Sheena K., supra, 40 Cal.4th at p. 883, fn. 4.)

Anticipating this conclusion, appellant urges that his attorney’s
failure to object to the condition constituted ineffective assistance of
counsel. Under familiar principles, “[e]stablishing a claim of ineffective assistance
of counsel requires the defendant to demonstrate (1) counsel’s performance was
deficient in that it fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient representation
prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for
counsel’s failings, defendant would have obtained a more favorable result. (>Strickland v. Washington (1984) 466 U.S.
668, 687, 694; In re Wilson (1992) 3
Cal.4th 945, 950.) A ‘reasonable
probability’ is one that is enough to undermine confidence in the outcome. (Strickland
v. Washington, supra, 466 U.S. at p. 694; In re Jones (1996) 13 Cal.4th 552, 561.)” (People
v. Dennis (19980 17 Cal.4th 468, 540-541.) We need not determine whether failure to
object to the condition as imposed by the trial court could be viewed as
ineffective assistance of counsel.
Modified as we have discussed to include both a knowledge requirement
and a limitation on scope, the condition reasonably relates to appellant’s
offense. The juvenile court was not
required to limit the restriction to the one child with whom appellant had
already engaged in sexual conduct.

>B.

Appellant next challenges the
conditions that he not come within 100 yards of any lower or middle school and
that he not be on the campus of any school unless he was “enrolled and
accompanied by parent, guardian, or authorized by the prior permission of
school authorities.” He argues the
conditions are unconstitutionally overbroad and vague, and restrict his right
to travel, because they are not limited to any particular time and apply to all
schools except his own.href="#_ftn3"
name="_ftnref3" title="">[3]

Appellant relies upon >In re D.G., supra, 187 Cal.App.4th 47,
which invalidated a probation condition prohibiting the minor from coming
within 150 feet of any school campus other than the one he was attending. Neither the current offense—residential
burglary—nor the minor’s past offenses were committed near a school or involved
other juveniles. Accordingly, the
condition was found unreasonable because it was not related to the minor’s
offenses and did not prohibit otherwise criminal
conduct, and because nothing in the record suggested it would serve a
rehabilitative purpose by preventing future criminality. (Id.
at pp. 50, 53.) Noting that a
probation condition properly may proscribe otherwise criminal conduct, the
court modified the condition in accordance with state law prohibiting persons
other than school students, parents and officials from visiting school grounds
without notifying school authorities. (>Id. at pp. 50, 55-56; Pen. Code,
§§ 627.1, subd. (a), 627.2, 627.7.)
The modified condition stated: “ ‘Do not enter on the
campus or grounds of any school unless enrolled, accompanied by a parent or
guardian or responsible adult, or authorized by the permission of school
authorities.’ ” (>In re D.G., supra, 187 Cal.App.4th at p. 57.)href="#_ftn4" name="_ftnref4" title="">[4]

Appellant’s failure to object below forfeits his claim
that the trial court abused its discretion in imposing the school conditions
and that the conditions violated his constitutional href="http://www.fearnotlaw.com/">right to travel, neither of which claims
can be resolved in the abstract, without reference to the particular facts of
this case. (In re Sheena K., supra, 40 Cal.4th at pp. 883, fn. 4, 889.) Nor can appellant prevail through his claim
of ineffective assistance of counsel. As
we will explain, there is no reasonable probability appellant would have
obtained a more favorable outcome if his attorney had objected because, with
one exception we will correct by modification, both of the school conditions
pass muster under Lent.

Unlike the situation in In re D.G., appellant’s offenses did relate to school property and to other juveniles, as he
contacted Jane outside her middle school, which she said he frequented. The trial court was deeply troubled by Jane’s
youth and the age difference between her and appellant. The order that appellant not come within
100 yards of any middle or lower school was directly related to
appellant’s offense and sufficiently specific to give notice of the areas
appellant is required to avoid. (See >People v. Barajas (2011) 198 Cal.App.4th
748, 760-762 [probation condition prohibiting defendant from being “adjacent”
to school property modified to specify required distance].)

The condition restricting appellant’s presence on school
property, with one exception, was consistent with state law—that is, it prohibited
otherwise criminal conduct. The
exception is that the condition, as worded by the court, prohibited appellant
from being on the campus of any school “unless he’s enrolled and accompanied by parent, guardian, or authorized by the
prior permission of school authorities,” whereas the condition the >In re D.G. court fashioned to comport
with state law used the disjunctive, “unless enrolled, accompanied by a parent
or guardian or responsible adult, or
authorized by the permission of school authorities.’ ” (In re
D.G., supra, 187 Cal.App.4th at
p. 57.) We doubt the juvenile court
intended to require that appellant be accompanied by a parent or legal
guardian, or obtain prior permission from school authorities, before coming on
the campus of the school in which he is currently enrolled, nor would such a
requirement be reasonable. We will modify
the condition to clarify that current enrollment is an alternative basis of
authority for appellant’s presence on campus.

C.

Appellant also argues the juvenile court abused its
discretion in imposing a search condition because the condition was not
reasonably related to his offense or future criminality. This claim does not raise a constitutional
question that can be resolved without reference to the facts of the case and
therefore was forfeited by the failure to object in the juvenile court. (In re
Sheena K., supra, 40 Cal.4th at pp. 883, fn. 4, 889.) Again, appellant seeks review by urging his
attorney’s failure to object to the condition constituted ineffective
assistance of counsel.

Preliminarily, the parties disagree on the terms of the
condition imposed by the court.
Appellant quotes the court’s oral statement of the condition at the
hearing requiring him to submit to a search of “his person, any containers he
may have or own, day or night at the request of a Probation Officer or peace
officer.” Respondent relies upon the
description of the condition in the minute order, which requires appellant to
“[s]ubmit person and any vehicle, room or property under [his] control to
search by Probation Officer or peace office with or without a search warrant at
any time of day or night.” Respondent
concedes that the minute order should be amended to conform to the court’s oral
pronouncement. Respondent indicates such
conformity can be obtained simply by deleting the reference to “vehicle” from
the condition stated in the minute order.
Appellant argues, however, that the minute order also exceeds the terms
of the court’s oral pronouncement in that it refers to search of his “room or
property” and to “warrantless searches.”

“The clerk’s minutes and the reporter’s transcript are to
be harmonized, if possible.” (>In re Byron B. (2004)
119 Cal.App.4th 1013, 1018.) In
requiring appellant to submit to search “at the request of” a probation or
peace officer, it is apparent the court intended to be imposing a warrantless
search condition. The remainder of the
discrepancy between the court’s oral remarks and the language of the minute
order, however, cannot be reconciled:
Just as the court made no reference to “vehicle,” it made no mention of
“room” in its oral statement of the condition.
The court only ordered appellant to submit his “person” and “containers
he may have or own” to search. As
respondent recognizes, the minute order cannot add to the terms of the
probation condition stated by the court.
(See People v. Gabriel, supra, 189 Cal.App.4th
at p. 1073.)

The question, then, is whether appellant was denied
effective assistance of counsel by his attorney’s failure to object to the
imposition of a probation condition requiring appellant to submit to
warrantless search of his person and any containers he might have or own. The basis for such an objection would have
been the asserted lack of relationship between the condition and appellant’s
offense. Although a warrantless search
condition is common in juvenile cases, “a minor cannot be made subject to an
automatic search condition. . . . [E]very juvenile probation condition must be
made to fit the circumstances and the minor.” (>In re Binh L. (1992) 5 Cal.App.4th
194, 202-203.) Appellant’s offense
involved no weapons, illicit substances or burglary tools that might be
expected to be concealed on his person or in containers in his possession. Nor did the court impose other conditions of
probation such that appellant’s compliance might be monitored by a search of
his person. As indicated above, respondent
justifies the search condition primarily on the basis that a search of
appellant’s home is a reasonable safeguard against him committing further
sexual offenses against children in his home.
This justification would support a general search condition that
included appellant’s home as well as his person: Such a search condition, which would deter
appellant from engaging in similar conduct in the future, would relate to
appellant’s offense and future criminality.
But the court did not impose a general search condition, only the
narrower condition requiring submission to searches of appellant’s person and
containers.

Nevertheless,
respondent’s argument points to the flaw in appellant’s claim of ineffective
assistance of counsel: If the juvenile
court properly could have imposed a more onerous search condition, a tactical
decision not to object would not have been unreasonable, and an objection would
more likely have resulted in an outcome less
favorable to appellant than a more favorable one. “Reviewing courts defer to
counsel’s reasonable tactical decisions in examining a claim of ineffective
assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412),
and there is a ‘strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’
(Strickland v. Washington[,
supra,] 466 U.S. [at p. 689].)
Defendant’s burden is difficult to carry on direct appeal, as we have
observed: ‘ “Reviewing courts will
reverse convictions [on direct appeal] on the ground of inadequate counsel only
if the record on appeal affirmatively discloses that counsel had no rational
tactical purpose for [his or her] act or omission.’ (People v. Zapien (1993) 4 Cal.4th
929, 980.)” (People v. Lucas
(1995) 12 Cal.4th 415, 436-437.) Here, where the trial court clearly wanted to
impose a search condition and properly could have imposed a general one, but
instead worded the condition narrowly, it is impossible to say there could have
been no tactical reason for the failure to object. Moreover, appellant would not be able to
demonstrate prejudice. Had counsel
objected to the condition as worded by the court, it is far more likely the
court would have imposed a standard general search condition than that the
court would have imposed no search condition at all.

>DISPOSITION

The probation
condition concerning appellant’s contact with children under the age of 14,
currently reflected in the court’s July 5, 2011 oral remarks and minute order,
shall be modified to provide: “Do not have contact with any child you
know or reasonably should know to be under the age of 14, at home or at any
school in which you are not enrolled, unless you are accompanied by your
parent, guardian or a responsible adult, or unless your presence is authorized
by the prior permission of school authorities, or unless the contact has been
approved by your probation officer.”

The probation
condition concerning appellant’s presence on school campuses, currently
reflected in the court’s June 6, 2011 oral remarks and minute order, and the
“Conditions of Probation and Court Orders,” shall be modified to provide: “Do not be on the campus of any school unless
you are enrolled or accompanied by a parent or guardian or authorized by
the prior permission of school authorities.”

The probation
search condition, currently reflected in the June 6, 2011 minute order, shall
be modified to conform to the court’s oral remarks as follows: “Submit person and any containers you have or
own, day or night, to search at the request of a Probation Officer or peace officer.”

As
so modified, the orders are affirmed.

Kline,
P.J.



We concur:



Haerle, J.

Lambden, J.