In re S.Q.

 

 

 

 

 

 

 

 

 

Filed 9/14/12  In re S.Q. CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

 
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In re S.Q., a Person Coming Under the Juvenile Court Law.	H037649      (Santa Clara County       Super. Ct. No. JV38556)
THE PEOPLE,   Plaintiff and Respondent,   v.   S.Q.,   Defendant and Appellant.

S.Q. was declared a ward of the juvenile court
(see Welf. & Inst. Code, § 602) and placed on probation.  One condition of his probation
was that he “not be on or adjacent to
any school campus unless enrolled or with prior administrative approval.”  S.Q. contends that the condition is href="http://www.fearnotlaw.com/">unconstitutionally
vague and overbroad.  We
modify the order to correct the vagueness problem and as modified, affirm.

A.                
Background

name="SDU_1">A juvenile
wardship petition alleged that S.Q. had committed assault with a deadly weapon
in violation of Penal Code section 245, subdivision (a)(1) and that he had been
in possession of a knife on school grounds in violation of Penal Code section
626.10.  According to the police and
probation reports, S.Q. and his friends assaulted the victim as he was walking
from school.  When S.Q. was taken into
custody two days after the incident he had a “four inch blade dagger” in his
pocket.  S.Q. admitted having possession
of the knife on school grounds.  The
juvenile court dismissed the assault allegation.  After declaring S.Q. to be a ward of the
court, the juvenile court placed him on probation with specified conditions,
including the condition that he “not be on or adjacent to any school
campus.”  S.Q. objected to several of the
probation conditions but did not include the “adjacent to” condition among his
objections.

B.                
Standard of Review

name=B22025918500>A
court of appeal may review the constitutionality of a probation condition, even
when it has not been challenged in the trial court, if the question can be
resolved as a matter of law without reference to the sentencing record.  (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) 
Our review of such a question is de novo.  (In re
Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) 

C.                
Vagueness

S.Q. asserts
that the condition that he not be adjacent to any school is unconstitutionally
vague because it does not define the meaning of “adjacent” and does not include
a knowledge requirement.  The Attorney
General effectively concedes that the condition is overly vague.

“ ‘Inherent in
the very nature of probation is that probationers “do not enjoy ‘the absolute
liberty to which every citizen is entitled.’ ” 
[Citation.]  Just as other
punishments for criminal convictions
curtail an offender’s freedoms, a court granting probation may impose
reasonable conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens.’  (United States v.
Knights (2001) 534 U.S. 112, 119.) 
Nevertheless, probationers are not divested of all constitutional
rights.  ‘A probation condition “must be
sufficiently precise for the probationer to know what is required of him, and
for the court to determine whether the condition has been violated,” if it is
to withstand a [constitutional] challenge on the ground of vagueness. . . .’  (Sheena K., supra, 40 Cal.4th at p. 890.)”  (People
v. Barajas (2011) 198 Cal.App.4th
748, 753 (Barajas).) 

Citing this
court’s opinion in Barajas,> supra, 198 Cal.App.4th at pages 761-763, S.Q. asks that we correct the
vagueness problem by modifying the condition to more precisely describe the
prohibited behavior.  In >Barajas, the trial court’s order stated that the defendant was “ ‘not to be
adjacent to any school campus during school hours . . . .’ ”href="#_ftn1" name="_ftnref1" title="">^[1]  (>Id.
at p. 760.)  As Barajas observed:  “[T]he meanings
of ‘adjacent’ and ‘adjacent to’ are
clear enough as an abstract concept. 
They describe when two objects are relatively close to each other.  The difficulty with this phrase in a name="SR;1135">probation condition is that it is a
general concept that is sometimes difficult to apply.  At a sufficient distance, most reasonable
people would agree that items are no longer adjacent, but where to draw the
line in the continuum from adjacent to
distant is subject to the interpretation of every individual probation
officer charged with enforcing this condition.”  (Id.> at p. 761.)  In responding to the vagueness argument in >Barajas, the Attorney General suggested that the court modify the condition
to state, “ ‘Do not knowingly be on or within 50 feet of a school campus during
school hours unless enrolled or with prior administrative permission or prior
permission of the probation officer.’ ”  (Ibid.)  Concluding that the suggestion gave the
probationer sufficient guidance, Barajas adopted
it. 

A modification
like the one adopted by Barajas would
give S.Q. fair notice of what is prohibited and would minimize the potential
for arbitrary enforcement.  The Attorney
General reiterates the recommendation made in Barajas and does not object “to a modification of the condition
that requires appellant to remain some determinate distance from a school
campus.”  Accordingly, we will modify the
condition to require that S.Q. “not knowingly be on or within 50 feet of any
school campus unless enrolled or with prior administrative approval.” 

D.               
Overbreadth

S.Q. further
argues that even if we make the condition more definite it is still
constitutionally infirm because it impinges on his constitutional href="http://www.fearnotlaw.com/">right to travel.  S.Q. suggests that the
condition be that he be restricted from “stopping or loitering” within 50 feet
of a school campus because, as written, the condition prevents him from simply
passing by a school.  The Attorney
General argues that S.Q. has forfeited the argument by failing to object
below.  name="sp_999_3">We agree with the Attorney General.

“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.”  (Sheena K., supra, 40 Cal.4th at p.
890.)  “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. (2010) 188 Cal.App.4th
1149, 1153.)

Although a probation condition may be overbroad
when considered in light of all the facts, only those constitutional challenges
presenting a pure question of law may be raised for the first time on
appeal.  (Sheena K., supra, 40 Cal.4th at pp.
888-889.)  The Supreme Court has made it
clear that not all constitutional defects in conditions of probation may be
raised for the first time on appeal; some questions cannot be resolved without reference to the particular
sentencing record developed in the trial court.  (Id.> at p. 889.)  Such questions are subject to the traditional
objection and forfeiture principles that encourage the parties to develop the
record and allow the lower court to properly exercise its discretion.  S.Q.’s overbreadth argument is such a
question since its resolution requires an assessment of the factual
circumstances, including, among other things, the purposes the condition was
designed to serve and the degree to which it actually restricts his ability to
travel.  Consequently, the forfeiture
rule applies and we do not reach the merits of the challenge.  (Ibid.)

E.                
Disposition

The order of probation is modified to require
S.Q. “not knowingly be on or within 50 feet of any school campus unless
enrolled or with prior administrative approval.”  As modified, the judgment is affirmed.

 

 

 

 

                                                                       

Premo,
J.

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

                                                                       

Rushing, P.J.

 

 

 

 

 

 

 

                                                                       

Elia, J.