In re Salma R.

 

 

 

 

 

 

 

 

 

 

Filed 6/17/13  In re Salma R. CA4/3

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re SALMA R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,         Plaintiff and Respondent,               v.   SALMA R.,         Defendant and Appellant.	G047175            (Super. Ct. No. DL042459)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Nick A. Dourbetas, Judge.  Affirmed as modified.

                        Jesse W.J. Male, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin,
Deputy Attorneys General, for Plaintiff and Respondent.

                        Salma
R. appeals from an order after the juvenile court declared her a ward of the
court pursuant to Welfare and Institutions Code section 602, and found true she
possessed controlled substance paraphernalia. 
Salma argues the juvenile court imposed vague and overbroad probation
terms and suggests modifications to those terms.  The Attorney General does not object to the
modifications.  As we explain below, we
modify the probation conditions and affirm the judgment as modified.    

FACTS

                        A school district
security guard responded to an elementary school alarm.  He smelled marijuana and saw six individuals,
including a young woman who was later identified as Salma, with a cloud of
smoke above their heads.  After the guard
walked Salma to his vehicle, Salma consented to a search of her purse where the
guard recovered a methamphetamine pipe.

                        A petition charged Salma
with misdemeanor possession of controlled substance paraphernalia (Health &
Saf. Code, § 11364).  After the
juvenile court denied Salma’s motion to suppress, Salma admitted the allegation
and the court declared her a ward of the court and released her on probation
with probation terms and conditions.

                        Those probation
conditions included the following:

                        “Do not associate with
anyone you know is disapproved of by the court, parent or guardian or probation
officer, or anyone you know is on probation or parole.  Or member of a criminal street gang or
tagging crew.  [¶]  You are also not to associate with anyone who
is using, selling, possessing, or under the influence of alcohol or controlled
substances.”  Salma did not object to the
probation conditions.

DISCUSSION

                        The juvenile court has
wide discretion in establishing appropriate conditions of probation.  (In re
Byron B. (2004) 119 Cal.App.4th 1013, 1015.)  Within this discretion, “[t]he court may
impose and require 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).) 

                        “‘[A] condition of
probation that would be unconstitutional or otherwise improper for an adult
probationer may be permissible for a minor under the supervision of the
juvenile court[.]’  [Citations.]”  (In re
Sheena K. (2007) 40 Cal.4th 875, 889-890 (Sheena K.).)  “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.”  (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)  “‘A probation condition that imposes
limitations on a person’s constitutional rights must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad. 
[Citation.]’  [Citation.]”  (In re
Vincent G. (2008)

162
Cal.App.4th 238, 245.)  Knowledge
requirements are necessary for nonassociation probation conditions to avoid
unconstitutional vagueness.  (>Sheena K., supra, 40 Cal.4th at pp.
890-891.)  Facial constitutional
challenges are preserved where they represent “‘pure questions of law that can
be resolved without regard to the sentencing record in the trial court.’”  (Id. at
p. 884.) 

                        Here, Salma contends the
above-mentioned probation terms are vague or overbroad because they prohibit
association with sellers and users of prescription medications and
alcohol.  Salma recommends the following
modifications:

                        1.  “Not associate with anyone known to the minor
to be disapproved of by the Court, her parents or guardians, or the probation
officer.” 

                        2.  “Not associate with anyone known to the minor
to be a member of a gang as defined in Penal Code section 186.22, or known to
the minor to be on probation or parole, [except with the approval of the
probation officer].”  (Fn. omitted.) 

                        3.  “Not associate with anyone known to the minor
to be illegally possessing or using alcohol, or anyone known to the minor [to]
be under the influence of alcohol.”  

                        4.  “Not associate with anyone known to the minor
to be possessing, selling, or using any illegal or illegally obtained controlled
substances.”

                        The Attorney General
does not object to the modifications generally, or to Salma’s proposed
modifications to Nos. 1 and 2 (Salma’s proposed modifications to

No.
1 are stylistic only).  The Attorney
General additionally agrees with Salma’s proposed modification to No. 2,
indicated in the above-bracketed language, in the interests of justice, i.e.,
to avoid additional judicial involvement in the event Salma has to participate
in a group program where gang members or probationers are present.  The Attorney General does, however, propose
slightly different modifications to Nos. 3 and 4 as indicated in italics below.

                        3.  “Not associate with anyone known to the minor
to be illegally possessing, selling,
or using alcohol, or anyone known to the minor to be under the influence of
alcohol.”  

                        4.  “Not associate with anyone known to the minor
to be possessing, selling, using, or >under the influence of any illegal or
illegally obtained controlled substances.”

                        Salma did not file a
reply brief, but she did file a letter brief acknowledging the Attorney
General’s “slightly different modifications.” 
Salma did not comment further on the Attorney General’s proposed
modifications in her letter brief.   

                        Both the alcohol and the
controlled substance probation conditions are overbroad as imposed.  The alcohol probation condition is overbroad
because alcohol can be legally used by a vast segment of the population and
Salma may have little choice but to associate with individuals who have used
alcohol.  The controlled substance
probation condition is overbroad because it prohibits Salma from possessing or
using prescription medications, or associating with persons selling or using
prescription medications.  Thus, both
probation conditions require the concept of illegality to be included in
them.  We suggest that in the future the
superior court narrowly tailor these probation conditions to include the
concept of illegality.      

                        Thus, with respect to
the probation conditions at issue, they are modified (Sheena K., supra, 40 Cal.4th at p. 892 [court authority to modify
probation condition]) to read as follows: 

                         1.  “Not
associate with anyone known to the minor to be disapproved of by the Court, her
parents or guardian, or the probation officer.” 


                        2.  “Not associate with anyone known to the minor
to be a member of a gang as defined in Penal Code section 186.22, or known to
the minor to be on probation or parole, [except with the approval of the
probation officer].”

                        3.  “Not associate with anyone known to the minor
to be illegally possessing, selling,
or using alcohol, or anyone known to the minor to be under the influence of
alcohol.”  

                        4.  “Not associate with anyone known to the minor
to be possessing, selling, using, or >under the influence of any illegal or
illegally obtained controlled substances.”

DISPOSITION

                        We hereby modify Salma’s
probation terms as follows: 

                        1.  “Not associate with anyone known to the minor
to be disapproved of by the Court, her parents or guardian, or the probation
officer.” 

                        2.  “Not associate with anyone known to the minor
to be a member of a gang as defined in Penal Code section 186.22, or known to
the minor to be on probation or parole, [except with the approval of the
probation officer].”

                        3.  “Not associate with anyone known to the minor
to be illegally possessing, selling,
or using alcohol, or anyone known to the minor to be under the influence of
alcohol.”  

                        4.  “Not associate with anyone known to the minor
to be possessing, selling, using, or >under the influence of any illegal or
illegally obtained controlled substances.”

                        The clerk of the
juvenile court is directed to send the probation department a copy of the
modified probation conditions.  In all
other respects, we affirm the judgment.

 

 

                                                                                   

                                                                                    O’LEARY,
P. J.

 

WE CONCUR:

 

 

 

ARONSON, J.

 

 

 

FYBEL, J.