In re Pedro.
Filed 1/8/14 G In re Pedro. CA5
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California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE
DISTRICT
In re PEDRO G.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
PEDRO G.,
Defendant and Appellant.
F066787
(Super. Ct. No. JJD066705)
APPEAL
from a judgment of the Superior Court of Tulare
County. Jennifer Conn Shirk, Judge.
Kendall
Dawson Wasley, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
>
INTRODUCTION
On January 14,
2013, a petition was filed pursuant to Welfare
and Institutions Code section 602, alleging that 15-year-old appellant,
Pedro G., continually abused a child in violation of
appellant was eligible for Deferred Entry of Judgment (DEJ). On January 22, 2013, appellant waived his
constitutional rights and admitted the allegation in the petition contingent on
being granted DEJ. The parties agreed
there was a factual basis for the plea.
At the
disposition hearing on February 11, 2013, the juvenile court indicated it was
not going to follow the probation department’s recommendation that appellant be
placed on DEJ. The court indicated it
would, instead, place appellant into a short-term
abusers and on probation. This was
acceptable to appellant, who reaffirmed his admission of the allegation in the
petition.
The juvenile
court found that appellant’s maximum term of confinement was 16 years and he
had 32 days of custody credits. The
appellant into the youth treatment center unit for 90 to 180 days and placed
him on probation. Appellant was ordered
to attend a short-term sexual abuse program and not to leave his home unless he
was with a parent, in a school activity supervised by an adult, or at work
supervised by an adult. Appellant was not
to have contact with anyone under the age of 18 or have any unsupervised contact
with minors, except in school settings. Of
appellant’s many conditions of probation, the court ordered that he not possess
pornographic material or view pornographic sites on the internet. The court also imposed the following
probation condition: “[M]inor [shall not]
possess any coloring books, comic books, or other material or games targeted
for younger minors’ interests.†Appellant
contends that this condition of probation is too overbroad and vague to be
enforceable. Respondent has not briefed
the issue.
title="">[2] We do not find that the
juvenile court’s condition of probation is improper as applied to appellant.
DISCUSSION
Appellant
initially argued that his challenge to the condition of probation is not
forfeited even though he failed to object to it at the disposition hearing. In In re Sheena K. (2007) 40
Cal.4th 875 (Sheena K.), the
California Supreme Court held that a probationer does not forfeit her claim
that a term of her probation is unconstitutionally vague or overbroad even
though she failed to object in the juvenile court. (Id.
at p. 878.) Thus, a challenge to a
“facial constitutional defect in the relevant probation condition†that is
“capable of correction without reference to the particular sentencing record
developed in the trial court†can be heard by an appellate court. (Id.
at p. 887.) Thus, we can review
appellant’s constitutional challenge to the facial validity of the probation
condition.
title="">[3]
Juvenile
courts have broader discretion in fashioning conditions of probation than do
courts setting such conditions for adult offenders. (In re
Luis F. (2009) 177 Cal.App.4th 176, 188.)
The juvenile court may impose any reasonable condition that is necessary
to the end that justice is done and the reformation and rehabilitation of the
ward enhanced. (In re Sheena K., supra,
40 Cal.4th at p. 889.) Conditions of
probation that would be impermissible for an adult probationer are not necessarily
unreasonable for a minor. Juveniles are
deemed more in need of supervision and guidance than adults; their
constitutional rights are more circumscribed; and the state, in exercising
jurisdiction over a minor, stands in the shoes of the parents, who may curtail
a child’s exercise of constitutional rights because of the parents’ own
constitutionally protected interests. (
1029, 1033-1034.) “Thus, the juvenile
court may impose probation conditions that infringe on constitutional rights if
the conditions are tailored to meet the needs of the minor.†(Id.
at p. 1034.)
We do not agree with appellant that
the challenged condition of probation suffers from vagueness because it fails
to define who is a younger minor and that it is overbroad because it prevents
appellant, for instance, from reading a comic book by himself. Appellant concedes in his supplemental brief
that the condition would be valid if narrowly drawn to meet the state’s interest
“in limiting appellant’s potential interaction with children similar in age to
appellant.†We note that appellant has
not objected to other conditions of probation, including that he not have
unsupervised contact with any minors under age 18, except under adult
supervision or in a school setting.
Although there is no evidence in the
record that appellant used comic books, games, or other like materials to
commit his offense, Sheena K. held
that he has waived any factual objection to the condition based on insufficient
evidence to support the condition. We
note that although appellant did not use coloring or comic books in conjunction
with his offense, this condition prevents appellant from using such materials to
engage another potential young victim and, in this manner, the condition is
reasonably related to preventing future criminality. (Lent,
supra, 15 Cal.3d at p. 486.)
Appellant’s constitutional challenges to the
condition as being too vague and overbroad focus on his arguments that the
condition is not drawn narrowly enough, the phrase “younger minors’ interestsâ€
is not clearly defined, and the prohibited materials (coloring books, comic
books, and other similar material or games), include items protected under the
First Amendment of the Constitution. As
we noted above, the constitutional rights of a minor can be infringed to meet
the needs of the minor. We do not find
the phrase “younger minors’ interests†to be difficult to understand or unconstitutionally
vague. Appellant is already limited in
his ability to associate with all minors under the age of 18, except under
adult supervision or in a school environment or activity. Appellant does not challenge those conditions
of his probation.
Appellant is not prohibited by this condition
from having access to coloring or artistic supplies, comic books, or other
materials and games appropriate for a minor his own age. To the extent that there is a limitation on
appellant’s exercise of his First Amendment rights, it is narrowly tailored and
circumscribed to materials meant for use by young children. We do not find this condition to be too vague
or difficult to enforce. Appellant
asserts that there may be educational materials he needs in school that he
would be restricted from using. We
reject this interpretation of the condition.
The condition does not restrict appellant or his teachers in a school
setting from using educational textbooks, workbooks, or artistic supplies.
We find the challenged condition of probation
to have a valid rehabilitative purpose and as being tailored to prevent future
criminality. We do not find this
condition unconstitutionally vague or overbroad.
DISPOSITION
The orders and findings of the
juvenile court are affirmed.
name="_ftn1" title="">* Before Levy, Acting
P.J., Kane, J., and Peña, J.
name="_ftn2" title="">[1] The parties agreed appellant’s continuing sexual conduct
occurred on five occasions and involved appellant’s five-year-old relative
while the two were playing “fort.â€
Appellant took the victim into a closet, pulled the victim’s pants down,
and placed his penis in the victim’s buttocks.
Appellant followed this behavior on three of these occasions by placing
his penis in the victim’s mouth. On one
occasion prior to these incidents, appellant went to a pornographic website and
was caught by a parent.
