In re Bruce M.

Filed 7/28/06 In re Bruce M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Commissioner. Reversed in part and affirmed in part.

At a dispositional hearing on an offense that represented a violation of existing probation orders, the juvenile court ordered appellant Bruce M. into placement and set a number of probation conditions. (Welf. & Inst. Code, § 777, subd. (a).)^[1] Bruce appeals the order of placement for lack of sufficiency of the evidence, and challenges the imposition of certain probation conditions, contending they are unconstitutionally vague and overbroad. We affirm the placement order but reverse the probation conditions order with directions to reconsider the three specified conditions, in order to more narrowly accord with the purposes of probation in this case.

BACKGROUND

Bruce, now age 16, came under the jurisdiction of the juvenile court in June 2003 and has been on probation since September 2003. (§ 602.) He has admitted to two previous violations of probation conditions, in June and December 2004. In the December 2004 proceeding, he agreed to a probation condition that he be placed on house arrest and enter into an electronic monitoring agreement (the EMA).

In March and April 2005, the probation department brought motions to find a probation violation and to revoke the EMA. In May 2005, a violation was admitted (smoking marijuana while subject to the agreement) and the EMA was continued in force.

Another notice of violation of probation hearing was set in June 2005, regarding the wearing of gang clothing. A violation of probation was found June 29, 2005 and Bruce was ordered to attend community school in July 2005.

The current proceedings were brought in September 2005 on charges of possession and sale of marijuana. At the jurisdictional hearing in September 2005, the juvenile court found that Bruce had committed one of the two charged offenses, sale or transportation of marijuana. (Health & Saf. Code, § 11360, subd. (a).) A dispositional hearing was set for September 29, 2005. On that date, the probation officer sought a continuance of the hearing in order to change his recommendation from probation to placement, because the day before, the probation officer had received information from the local police department that Bruce had violated the terms of the EMA. The probation officer submitted a report including the following information he gained from the police department:

"On 9/28/05, Officer Robert Reyes received a telephone call from sentencing alternatives in regards to [Minor] having a Failure to Return [at] 1700 hrs. Numerous attempts were made to call the residence but the phone line was busy. A check in fail was reported [at] 2100 hrs. and you were reported of it, as per your request the Brawley police department was notified and asked to drive by the minor's residence, they stated that minor was at the neighbor's house playing video games, I advised the P.D. to ask this minor to go home and call me when he got there, minor did not return the call and the phone line continued busy."

The probation officer's report also set forth as concerns from the probation committee that Bruce had a documented history of substance abuse, and the committee had concerns about whether Bruce was receiving adequate parental supervision at home in order to be able to function successfully during the EMA monitoring period.

Bruce was represented by counsel at the dispositional hearing, and a continuance was stipulated to so that all pending matters could be dealt with together. Before that occurred, Bruce's mother asked to address the court, and stated that at the relevant time, the telephone had been in use by Bruce's sister, which was a situation that had in the past caused the monitoring device to give a false alarm.

Also at the hearing, the father described his version of the incident on September 28, and contended that the monitoring device should not have gone off that night because Bruce was in front of the next door apartment, which he did not believe was out of bounds. The probation officer responded that the monitor went off whenever Bruce was outside the boundaries that had been set. The father denied that Bruce had been told by the police officer to call juvenile hall, and made a request that the court have the probation department test the device to check on the boundary that was set. The court responded that it currently had to make a decision based on the information received, and the matter would be discussed again next week. Bruce was ordered to be detained based on the probation violation.

At the continued dispositional hearing on October 6, 2005, defense counsel submitted the matter on the reports. Bruce gave a statement that he would like another chance and that he thought the probation officers knew he was going to mess up on the plan, as he had on others. Counsel requested that the court hear from Bruce's parents. The father stated that he had conducted his own investigation which revealed that the boundary was set at 50 yards and not directly in the family house. The father objected that the police officer's statement in the report, about how Bruce was playing video games at the neighbor's that night, was hearsay, because Bruce had only gone next door to get or borrow a video game to come home and play. The court responded that it could appropriately consider reports like probation officers' reports and attachments, and the father responded that he never saw one. After hearing from the mother, and asking if counsel had any further comments, the court made its decision, stating its concern that Bruce had a history of violating probation conditions, in December 2004 and May 2005. The court then said:

"So you were released back on the monitor and, you know, once again there 's an allegation and some evidence to support it, that you violated the rules. And what the probation officer tells me is that this is not an isolated incident, that violating the rules of probation has been a pattern that 's been established by you since almost the very beginning because you have been in and out of court, in and out of juvenile hall on various probation violations. And as I say, that's history that the court cannot simply ignore. [¶] So based on that, I'm going to have to follow the recommendation and order you into placement. And I think it's only obvious because of the record in this case, not just this one incident but because of repeated incidence of violating the rules of probation, I think there's only one reasonable conclusion and that is that you can't be expected in the future to comply with the terms of probation while you're living at home."

The court ordered that Bruce be placed in the custody of the probation department, and then in a treatment facility for rehabilitation. The court further ordered that Bruce be placed on probation until his 18th birthday. Numerous conditions of probation were set, including: No. 24, "The minor shall not associate with any individual on probation;" No. 39, "The minor will not be in a place where drugs or alcohol are being used," and No. 51, which states, "The minor shall not throw gang signs, stare down, or otherwise 'call out' or challenge any person or group of persons for any reason."

Bruce appeals the dispositional orders.

DISCUSSION

Bruce contends (1) insufficient evidence supported the juvenile court's finding that he violated the electronic monitoring agreement; (2) the juvenile court abused its discretion by refusing the father's request to test the monitoring device; and (3) three of his probation conditions are unconstitutionally vague and overbroad. We address the evidentiary issues first and then the probation conditions.

I

SUFFICIENCY OF THE EVIDENCE TO SUPPORT PLACEMENT DECISION

Bruce argues the record contains insufficient evidence to support the juvenile court's finding that placement was indicated because he had violated the EMA, a condition of his probation, by going out of bounds. He argues that there is no clear evidence in the record about the actual boundaries of the electronic monitoring device, and that no finding of violation of it is possible without such evidence. In the alternative, Bruce argues the juvenile court abused its discretion by denying the father's request that the boundaries of the monitoring device be tested. In either case, he contends this factor in reaching the disposition is not supported by the evidence.

The standard of proof now applicable in juvenile probation violation proceedings is preponderance of the evidence. (§ 777, subd. (c); John L. v. Superior Court (2004) 33 Cal.4th 158, 166.) Such proceedings are different from criminal prosecutions or sentencing, and require that new misconduct by a juvenile probationer be treated as a probation violation. (§ 777, subd. (a)(2).) The Supreme Court explains this procedure as follows:

"If a violation is found, the violator may, at most, receive a more restrictive juvenile placement within the original maximum term. [¶] Consistent with section 777's changed role, and in an effort to streamline proceedings under this statute, Proposition 21 reduced the standard of proof in such proceedings from beyond a reasonable doubt to a preponderance of the evidence. [§ 777, subd. (c).] Certain evidentiary changes also were made. For example, Proposition 21 allows the use of reliable hearsay evidence in section 777(a)(2) proceedings, insofar as such evidence is admissible in adult probation revocation proceedings, to prove juvenile probation violations. [Citations.]" (John L., supra, 33 Cal.4th 158, 165.)

Based on this approach, the question becomes whether the juvenile court had an adequate basis in the reports, in the parents' statements, and in the record as a whole to order this placement. At the dispositional hearing and the continued hearing, Bruce had the assistance of counsel, a public defender, who did not challenge the sufficiency of the reports. However, counsel requested that the court hear from the parents regarding the EMA violation allegations. It is unclear whether counsel intended that this request be considered to be a challenge to the sufficiency of the evidence to define the boundaries applicable to the EMA. In any case, there is no allegation of ineffective assistance of counsel, nor of any inadequacy of the EMA. Neither party has supplied a copy of the EMA for our consideration of its coverage. We review Bruce's contentions regarding the sufficiency of the evidence according to case law discussing dispositional decisions, which are in the nature of sentencing issues.

Ordinarily, when a defendant or minor fails to object to the sufficiency of the evidence to support a sentencing decision, the point will be considered forfeited. (People v. Scott (1994) 9 Cal.4th 331, 354). However, certain sentencing choices are not subject to this forfeiture doctrine, i.e., those choices that "could not lawfully be imposed under any circumstance in the particular case." (Scott, supra, 9 Cal.4th at p. 354). In People v. Smith (2001) 24 Cal.4th 849, 852, the court said a failure to object does not waive such claims on appeal where "the errors presented 'pure questions of law' [citation], and were ' "clear and correctable" independent of any factual issues presented by the record at sentencing." ' [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (Ibid.)

Bruce contends his challenges should not be considered to have been waived at the juvenile court hearing, because these same issues were discussed by his parents, to argue that he had not gone out of bounds, and also that the police report was unreliable because it included hearsay and unidentified sources. Bruce appears to argue that because his parents were allowed to address the court, the juvenile court came under a sua sponte duty to warn the parents if it would not consider their unsworn statements to have the same weight as testimony. This argument would require us to construe counsel's request that the parents be allowed to speak as an evidentiary challenge, or as an offer of proof of the scope of the EMA, even though counsel was otherwise submitting the matter on the reports. This would represent an unusual approach to this record, since the usual rule is to allow parents to be present and to give input at dispositional hearings to assist the court in reaching the correct resolution of the matter. (Cal. Rules of Court, rules 1410(b)(2), 1412, 1492; see 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, §§ 587, 589, 626, pp. 713-716, 756-757.) In any case, we will give Bruce the benefit of the doubt and will treat these sufficiency of the evidence claims as properly before us.

The court in In re Romeo C. (1995) 33 Cal.App.4th 1838, 1847 analyzed the reliability of reports or social studies prepared by probation officers in the course of their duties. In dispositional proceedings, minors have the right to challenge factual statements in the reports and to present their own witnesses, subject to the provisions of Evidence Code section 352 (allowing limitations on the presentation of evidence if, even though relevant, it is cumulative, time wasting, or likely to confuse the issues). (In re Romeo C., supra, at p. 1843; § 706.) Subject to that limitation, due process requires a minor in a dispositional proceeding to have the opportunity to attempt to show substantial inaccuracies or other defects in a social study or probation report, such as by calling witnesses relied on in the report. (In re Romeo C., supra, at pp. 1848-1849; In re Kentron D. (2002) 101 Cal.App.4th 1381, 1393.)

Turning to the sufficiency of the current report, we acknowledge that it is very cursory in nature and includes several layers of hearsay from the probation officer, who said a police desk officer had received a telephone call from the sentencing alternatives office, in regards to Bruce not checking in on time. Four hours later, after numerous unsuccessful attempts were made to call the residence (the phone line was busy), a check-in failure was reported to the probation officer. He requested that local police be notified and asked to drive by the minor's residence. That patrol officer stated that Bruce, the minor, was "at the neighbor's house playing video games," and the desk police officer advised the patrol officer "to ask this minor to go home and call me when he got there, minor did not return the call and the phone line continued busy."

Despite the thin showing provided by the report, the record as a whole shows a number of factors supporting the reliability of the juvenile court's decision. First, this juvenile court commissioner had participated in most of the relevant hearings in the past three years and had a clear understanding of the case. Second, the record is clear that Bruce had been subject to the EMA for about nine months, and had already admitted to violating it in several ways. At the subject hearing, the court inquired of the father twice whether Bruce knew he was not supposed to be at the neighbor's house, and the father did not directly respond. Bruce's personal statement was merely "I would like a second chance, your Honor, because it seems like every time I get released they call me back to put me on something different that they know I'm going to mess up on." The trial court could have reasonably inferred from all the evidence that Bruce was aware of the boundaries, which extended beyond the walls of the home for which house arrest had been ordered, at least 50 yards, as the father stated. The evidence could reasonably be interpreted to show at least that Bruce was visiting the neighbor's apartment in order to obtain the video game that he was seen holding, and that this was not in compliance with the house arrest and EMA to which he was subject.

Notwithstanding the above, we disagree with the Attorney General's argument that "there was no allegation below, nor does appellant allege herein, that the device malfunctioned." The record may reasonably be read as containing a request by the father to have the device tested, to confirm its accuracy, in light of the previously claimed problems with telephone signal interference, and the apparent confusion about whether Bruce's standing in front of the next door neighbor's apartment was also out of allowable bounds, as would be his actually going within that apartment. However, this does not mean that Bruce has succeeded in demonstrating on this record that the device was not functioning properly. His father reported to the court that based on his own investigation, the boundary was set at 50 yards, but he continued to maintain that Bruce had stayed within that boundary, or alternatively, that the police officer did not actually see Bruce playing video games inside the neighbor's apartment. The focus at the hearing was not clearly upon the accuracy of the device, but rather on conflicting evidence about Bruce's activity that night, as viewed by several people.

In evaluating the evidence, the juvenile court had the discretionary power to admit or exclude evidence offered for different purposes, such as impeachment. The trial court's comments showed it was aware of the proper treatment of hearsay material in probation reports. On appeal, its exercise of discretion in the evidentiary rulings is reviewed for abuse, and will not be disturbed unless shown to be arbitrary, capricious, or patently absurd. (People v. Brown (2003) 31 Cal.4th 518, 534, citing People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

In making its ruling, the juvenile court referred to its concern that Bruce had a history of violating probation conditions, in December 2004 and May 2005. The probation report included concerns from the probation committee that Bruce was not receiving adequate parental supervision at home, with respect to the EMA. The court inquired of the father about whether Bruce knew he was not supposed to be at the neighbor's house, but received no satisfactory explanation. The probation report, containing the police report, was offered for the truth of the violation of probation, without any effective objection by minor or counsel. There was no clear request by the defense for additional information from Bruce or his parents about the scope of the EMA boundaries, in terms of whether the neighbor's doorway or apartment was outside of them. Taken together, all these factors could reasonably have been interpreted by the trier of fact as supporting a finding that the terms of probation were violated in the manner alleged.

We accordingly conclude that even assuming the parents' statements to the juvenile court amounted to cognizable challenges to the sufficiency of the evidence to support the dispositional decision, these challenges fail in light of the facts disclosed by the entire record. Bruce has failed to show that the preponderance of the evidence standard was not met regarding the decision to place him for treatment in an appropriate rehabilitation facility, based on the demonstrated failure to comply with the conditions of probation.

II

PROBATION CONDITIONS

Bruce contends that the juvenile court imposed three unconstitutionally overbroad and vague conditions, lacking a "knowledge" requirement and/or a sufficiently narrow focus on the legitimate purposes to be served by probation.

Preliminarily, we note Bruce did not object at the dispositional hearing to the imposition of the conditions about which he now complains. Ordinarily, "[t]o preserve for appeal the issue of the reasonableness of a condition of probation, a juvenile offender must object to it in the juvenile court, unless some exception applies to excuse the failure to object." (In re Justin S. (2001) 93 Cal.App.4th 811, 814.) Our Supreme Court currently has before it (In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980) the issue of whether a challenge to a condition of juvenile probation as unconstitutionally vague or overbroad is waived or forfeited by the failure to object to the condition at the time of the dispositional hearing in juvenile court.

At this time, while we await direction by the Supreme Court, we believe that review of these conditions is authorized, because they present pure questions of law about whether the stated probation conditions are unconstitutionally vague and overbroad. Those issues can be resolved without reference to the sentencing record, and accordingly, as in In re Justin S., supra, 93 Cal.App.4th 811, Bruce need not have objected to the condition in the juvenile court. (Id. at p. 815.)

When setting probation conditions, the juvenile court exercises broad discretion. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1015.) The court 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 juvenile enhanced. (§ 730, subd. (b).)

While probation conditions which implicate constitutional rights must be narrowly drawn (People v. Garcia (1993) 19 Cal.App.4th 97, 102), in juvenile cases " ' "[e]ven conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation]." ' [Citations.]" (In re Tyrell (1994) 8 Cal.4th 68, 82.) In other words, " ' "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 Byron B., supra, 119 Cal.App.4th at p. 1016.)

We address the three challenged conditions in light of this authority. First, regarding probation condition No. 24, stating: "The minor shall not associate with any individual on probation," Bruce objects that it is unconstitutionally overbroad and vague because it lacks a "knowledge" requirement. He seeks to have this condition "removed or modified to only prohibit the minor's association with people known to the minor to be on probation and outside of schools and programs required as part of minor's probation."

The reviewing court in In re Justin S., supra, 93 Cal.App.4th 811 considered the basic constitutional issue raised here. In Justin S., the reviewing court, considering the minor's contention that a probation condition restricting gang involvement without a knowledge requirement "is unconstitutionally overbroad," stated the contention was "well taken. Prohibiting association with gang members without restricting the prohibition to known gang members is ' "a classic case of vagueness." ' [Citation.] Such a condition of probation 'suffers from constitutionally fatal overbreadth.' [Citation.]" (Id. at p. 816.)

Likewise, a condition of probation prohibiting association with certain individuals is proper as long as the juvenile has prior knowledge of the condition. In other words, "[r]equiring advance disapproval makes the probation condition workable and saves it from overbreadth." (In re Byron B., supra, 119 Cal.App.4th at p. 1017.) These cases are persuasive and we follow them here. The reality is that Bruce may be required in the community school or in a treatment facility to associate with his peers, some of whom are more than likely to be on probation. We leave it to the juvenile court on remand to amend or modify the probation condition "to narrow its reference to persons known to the probationer to be" on probation, and outside of required school/program locations. (See In re Justin S., supra, 93 Cal.App.4th at p. 816.)

Similarly, probation condition No. 51 states, "The minor shall not throw gang signs, stare down, or otherwise 'call out' or challenge any person or group of persons for any reason." Bruce contends this is constitutionally overbroad and vague, because "call out" or challenge could legitimately refer to appropriate social events and locales, such as ball games, shopping, or other desirable activities. The same analysis applies here as above, in that this probation condition does not currently and specifically promote the purposes properly to be served by probation conditions, which must be tailored specifically to meet the needs of the juvenile. (In re Tyrell, supra, 8 Cal.4th 68, 82.) Those conditions which are reasonable will address the reformation and rehabilitation of the minor, with regard to his or her individual circumstances. (§ 730, subd. (b).) This condition must also be more narrowly drawn by the juvenile court on remand.

Finally, with respect to probation condition No. 39, it states, "The minor will not be in a place where drugs or alcohol are being used." Bruce objects that this condition is also unconstitutionally overbroad and vague, as it would conceivably prevent him from being in many legitimate places, such as his home, while alcohol was served to adults, or other similarly age-appropriate locations, where people of age are allowed to drink. Bruce suggests that we order amendments to the condition, e.g., "The minor is prohibited from being at any bar and at any private event where the minor knows illegal drugs or alcohol are being used and where the minor does not have parental supervision."

We agree with the Attorney General that Bruce's proposed amendment is defective, in that it fails to distinguish between the minor's concerns regarding his being in the presence of legitimate alcohol usage by adults, as opposed to being exposed to illegitimate drug usage by anyone. We are well aware that the probation officer reported concerns from the probation committee about Bruce's documented history of substance abuse, and concerns about whether Bruce was receiving adequate parental supervision at home. Nevertheless, Bruce's point is well taken, that the current condition is overbroad with respect to functioning in our society, where alcohol is commonly legally consumed in various public places, albeit by persons of drinking age. Bruce will eventually be released from the current restrictive placement and will be expected to function in society. Accordingly, as with the above conditions, the matter must be returned to the juvenile court to reconsider the three challenged probation conditions and to enter a new order that more specifically addresses the reformation and rehabilitation of the minor, with regard to his or her individual circumstances. (§ 730, subd. (b); In re Tyrell, supra, 8 Cal.4th 68, 82.)

DISPOSITION

The juvenile court order regarding placement is affirmed; the order regarding probation conditions is reversed with directions to narrow the challenged references to those that will most specifically address the reformation and rehabilitation of the minor, with regard to his individual circumstances.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Real Estate Lawyers.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.