In re P.V.
Filed 2/13/13 In re P.V. CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
APPELLATE DISTRICT
TWO
In
re P.V., a Person Coming Under the Juvenile Court Law.
THE
PEOPLE,
Plaintiff and Respondent,
v.
P.V.,
Defendant and Appellant.
E055066
(Super.Ct.No. J235967)
OPINION
APPEAL from the Superior Court of
Bernardino County. William Jefferson
Powell IV, Judge. Affirmed as modified.
Brendan M. Hickey, 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 Stephanie H. Chow, Deputy Attorneys
General, for Plaintiff and Respondent.
P.V. (hereafter, the minor) was
adjudicated a ward of the court for possession of marijuana with intent to
sell, in violation of Health and Safety Code section 11359. She was placed on formal probation in the
custody of her mother. The minor
appeals, alleging that a number of the conditions of her probation are
improper. We agree with the minor, and
we shall order some conditions of probation modified, and another provision
partially stricken. With these
modifications, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In October 2010, police officers
conducted a traffic stop of a vehicle the minor’s mother was driving. As a result of the stop, police discovered
two large jars of harvested marijuana, bearing the minor’s name. The minor told police that she grew the
marijuana at a friend’s house; one of the residents there had a medical
marijuana card. The minor said that she
had sold marijuana a number of times, and that many of her friends liked to
smoke marijuana.
The San Bernardino County District
Attorney filed a juvenile petition under Welfare and Institutions Code section
602, alleging that the minor had violated Health and Safety Code section 11359,
by possessing marijuana for sale. The
minor was initially placed on informal probation, but she did not perform
successfully, so probation was revoked.
The court conducted a contested hearing and found the allegation of the
petition to be true. The court declared
the minor a ward of the juvenile court, and placed her on
her parents.
Among the terms and conditions of
the minor’s probation were provisions that the minor must:
“5.
Not leave the [S]tate of California without first obtaining prior
approval and a valid travel permit from the Probation Officer. [¶] . . . [¶]
“10.
Not use or possess any controlled substance or toluene-based substance
without medical prescriptions and shall notify the probation officer of
prescription medication.
“11.
Neither use nor possess any drug paraphernalia as described in Health
and Safety Code section 11014.5 or Health and Safety Code section 11364.5(d).
“12.
Neither possess nor consume any alcoholic beverages. [¶] . . . [¶]
“14.
Not possess any dangerous or deadly weapons, including but not limited
to any knife, gun, or any part thereof, ammunition, blackjack, bicycle chain,
dagger or any weapon or explosive substance or device as defined in Penal Code
section 12020 and/or Penal Code section 626.10.â€
The minor filed a timely
objections to the conditions of probation listed above.
ANALYSIS
I. Knowledge or Scienter Requirements Must Be
Added to Probation Terms Requiring a Probationer’s “Presence, Possession,
Association, or Similar Actionsâ€
The minor contends that the five
conditions of probation identified, above, must be modified to include a
scienter, or knowledge, requirement. As
the minor correctly observes, conditions of probation must generally include a
requirement of knowledge, in order to avoid unconstitutional overbreadth. (See People
v. Patel (2011) 196 Cal.App.4th 956, 960.)
Thus, the minor proposes that the
challenged probation conditions be modified as indicated in bold below:
“5.
Not [knowingly] leave the
[S]tate of California without first obtaining prior approval and a valid travel
permit from the Probation Officer. [¶] .
. . [¶]
“10.
Not [knowingly] use or
possess any controlled substance or toluene-based substance without medical
prescriptions and shall notify the probation officer of prescription
medication.
“11.
Neither [knowingly] use nor
possess any drug paraphernalia as described in Health and Safety Code section
11014.5 or Health and Safety Code section 11364.5(d).
“12.
Neither [knowingly] possess
nor consume any alcoholic beverages.
[¶] . . . [¶]
“14.
Not [knowingly] possess any
dangerous or deadly weapons, including but not limited to any knife, gun, or
any part thereof, ammunition, blackjack, bicycle chain, dagger or any weapon or
explosive substance or device as defined in Penal Code section 12020 and/or
Penal Code section 626.10.â€
In People v. Patel, supra,
196 Cal.App.4th 956, the Third District Court of Appeal adverted to a long line
of cases, stretching back nearly 20 years, which had consistently held that a
knowledge requirement must be included in certain kinds of probation conditions
to avoid unconstitutional overbreadth.
Despite the regular repetition of the Courts of Appeal that a scienter
element was required, the trial courts continued to impose probation conditions
without any scienter requirements, thus compelling the reviewing courts to
expend precious resources on repetitive issues.
“[W]ith dismaying regularity, we still must revisit the issue in orders
of probation, either at the request of counsel or on our own initiative. The latter in particular is a drain on the
public fisc that could be avoided if the probation departments at fault would
take greater care in drafting proposed probation orders.†(Id.
at p. 960.) The court held that a
substantial body of law established that a probationer could not be punished
without knowledge as a requirement with respect to the salient types of
probation conditions, and determined that it no longer would address the issue. The Third District court thus gave “notice of
our intent to henceforth no longer entertain this issue on appeal, whether at
the request of counsel or on our own initiative. We construe every probation condition
proscribing a probationer’s presence, possession, association, or similar
action to require the action be undertaken knowingly. It will no longer be necessary to seek a
modification of a probation order that fails to expressly include such a
scienter requirement.†(
Other courts have declined to follow
the Third District’s lead, however, in simply implying a knowledge requirement
in terms of probation. Division Three of
this court, in People v. Moses (2011)
199 Cal.App.4th 374, noted that, “All of the challenged probation conditions
were drawn directly from a four-page form entitled ‘Superior Court of
California, County of Orange Sex Offender Terms and Conditions of
Probation-Addendum’; the footer on the form identifies it as a ‘Mandatory Local
Form’ and states it was revised ‘6/5/03,’ more than eight years ago. The Superior Court of the State of California
for the County of Orange should modify the standard probation condition form to
comply with constitutional mandates.
Particularly with respect to terms and conditions that require a
knowledge element, it has unfortunately become routine for us to address the
need for modification of the probation conditions on appeal.†The court determined that, although it
“could†simply “declare that a knowledge requirement shall be read into all
probation conditions,†it instead opted to “modify and strike certain
challenged probation conditions in this case and by this opinion state that the
superior court should revise its standard probation conditions form to meet constitutional
requirements.†(Id. at p. 381.) In other
words, it chose to require the trial court to conform its practice to
prevailing legal standards, rather than to excuse the lower court’s failure to
bring its probation orders into compliance with established legal norms. The minor urges this court to adopt the
latter approach, rather than the Patel
court’s approach, of implying a scienter requirement into the relevant
probation conditions.
In the interest of clarity, we
conclude that the approach of the Moses
court is preferable, and we therefore order the probation conditions modified
as requested, to include an express requirement of knowledge.
II. The Probation Condition Requiring the Minor
to Notify the Probation Officer of All Prescription Medications Is Overbroad
The minor contends that probation
condition No. 10 is unconstitutionally overbroad in an additional way: Requiring her to inform the probation officer
of all medicines she is prescribed by her physician unduly invades her right to
medical privacy.
As noted, probation condition No. 10
required the minor to “Not [knowingly] use or possess any controlled substance
or toluene-based substance without medical prescriptions and shall notify the probation officer of prescription medication.†(Italics added.)
The minor objected below to the
imposition of the requirement that she inform the probation officer of all her
prescription medications. The trial
court overruled the objection, stating, “It does appear to me that number 10 is
appropriate given the underlying facts of the case. The facts are that the minor was actively
selling marijuana. If my memory is
correct, she was doing it in order to buy her mother a birthday present. [¶]
The indication from the probation officer’s report here is that the
minor’s mother knows of at least the marijuana use that [the minor] has. She is basically self-medicating for
depression. And her mother has told her
to stop; it’s not good for her. Given
all of those circumstances I think it’s appropriate that the probation officer
keep tabs on not only which controlled substances she is using, but perhaps
which substances she is using based on prescription. [¶] I
will note that in my experience there are quite a few people who think that
they could buy a medical marijuana card from some person off the street and
that would justify their use of marijuana.
I have yet to actually have seen a case, a legitimate case, of a
prescription for smoking marijuana. . . .â€
The minor contends, first, that she
has a clearly established right to privacy under the Fourteenth Amendment of
the United States Constitution (see Griswold
v. Connecticut (1965) 381 U.S. 479, 485), which extends to the preservation
of privacy concerning one’s body and health, including maintaining
confidentialness of medical records and prescriptions. (See, e.g., Doe v. Delie (3d Cir. 2001) 257 F.3d 309, 315 [“The right to
privacy in one’s medical information extends to prescription records.â€].) The California Constitution expressly provides
for a right to privacy. (Cal. Const.,
art. 1, § 1.) The right to medical
privacy is supported most familiarly through statutory recognition in the
Evidence Code of a privilege between patients and their doctors and
psychotherapists. (Evid. Code, §§ 990-1006,
1010-1028.)
The minor argues that these
principles support the conclusion that she has a reasonable expectation of
privacy in her medical information, including medical prescriptions, and that
any intrusion into that privacy must therefore be justified by a compelling
interest, under a strict scrutiny standard of review. The minor contends that the state’s interest
in disclosure of her medical prescription information is not sufficiently
compelling to justify invasion of her privacy rights. The minor suggests that there are a number of
less intrusive measures that could address the concerns articulated by the
trial court as the justification for imposing the condition of probation. The minor articulates the state’s interest as
the prevention of the minor’s marijuana use, and then argues that the court
could have imposed conditions which, for example, prohibited her from using
marijuana, whether with or without a medical prescription, or to notify the
probation officer of any marijuana prescription the minor might obtain. To the extent that the juvenile court’s
concerns were the minor’s mental health (depression and self-medication), other
probation conditions addressed those aspects of the minor’s rehabilitation: condition No. 13 required regular drug
testing, and condition No. 16 required mental health counseling. If the drug tests show a positive result for
any prescription medication, then the minor could defend against an alleged
violation of probation by producing a valid prescription, but, the minor
argues, unless and until that eventuality arises, there is no compelling
interest that would justify a preemptive requirement of disclosure of all
prescription medications. The minor
points out that she is protected from disclosing, even to her parents, certain
medical information concerning women’s health care, such as access to
contraception or to abortion services.
(See, e.g., American Academy of
Pediatrics v. Lungren (1997) 16 Cal.4th 307, 318 [children’s privacy rights
include the right to obtain an abortion without state notification to
parents].) Because the charged offense
involved the sale and use of marijuana, the probation conditions should be
narrowly tailored to address the concerns of illegal marijuana use or sales;
probation condition No. 10 is overbroad, the minor contends, because it reaches
into matters that have no relation to the charged offense.
The People respond that probation
condition No. 10 is neither unreasonable nor unconstitutional. Initially, the People point out that the
minor’s focus on the constitutional right to privacy, specifically including a
right to privacy in medical information and prescriptions, is somewhat
misdirected. Even when general citizens
unquestionably have a constitutional right, such as a right to privacy, or a
right to medical privacy, probationers are not similarly situated to citizens
who have not been convicted of a crime.
For example, probationers may constitutionally be subject to warrantless
searches at any time, despite the specific constitutional guaranty against
warrantless searches. Thus, the primary
issue is not whether there is a fundamental right to privacy, or whether such a
right includes the right of privacy in personal physical functioning
(encompassing privacy of medical records, including prescriptions), or even
whether a probation condition affects or impinges upon a probationer’s
privacy. Rather, the proper inquiry is
whether, under the factors set forth in the leading case, People v. Lent (1975) 15 Cal.3d 481, the probation condition is
reasonable.
Penal Code section 1203.1 authorizes
a trial court to impose any “reasonable conditions, as it may determine are
fitting and proper to the end that justice may be done . . . and
generally and specifically for the reformation and rehabilitation of the
probationer.†(Pen. Code, § 1203.1,
subd. (j).) Under the
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.’†(
It is questionable whether the
requirement that the minor inform the probation officer of all her prescription medications was related to the crime of which
she was convicted.
The minor’s offense was possession
of marijuana for sale. There was also
some evidence before the court that the minor used marijuana herself, as a
“self-medication†for depression. The
minor’s mother knew about the minor’s marijuana use, but was apparently
ineffective in stopping the minor’s law violation. The minor obtained the marijuana by
cultivating and harvesting it on premises occupied by someone who allegedly had
a medical marijuana card. To the extent
that the holder of the medical marijuana card had any legal prescription for or
authorization to cultivate or possess marijuana for personal medical use, the
minor’s activities were well beyond the legitimate scope of that prescription
or authorization.
As it relates to the offense and the
minor’s circumstances, the minor used marijuana, for which it would be highly
unlikely that she would have, or be able to procure, a valid medical prescription. The minor also apparently abused—by
attempting to operate under cover of—another person’s prescription for medical
marijuana. Because the minor was
evidently “self-medicating†with marijuana to treat her depression, the
probation officer might have some interest in the details of the minor’s
counseling treatment for depression, including the use of any anti-depression
medications. In addition, because the
minor’s offense related to the sale and unlawful use of drugs, the probation
officer would have a legitimate interest in monitoring the minor’s access to
and use of commonly abused controlled substances.
To meet the goals of the minor’s
supervision and rehabilitation with respect to these issues, probation
condition No. 9 required the minor not to associate with known users and
sellers of controlled substances, or to be in a place where she knew or had
reason to know drugs would be used or sold.
The first clause of condition No. 10 would require the minor not to
knowingly possess any controlled substance, or toluene-based substance, without
a lawful medical prescription. Condition
No. 11 prohibited the minor from knowingly possessing any drug
paraphernalia. She was required by
condition No. 13 to submit to drug tests at the probation officer’s
direction. In addition, condition No. 16
required her to attend a counseling program.
These provisions, already included in the minor’s terms and conditions
of probation, would fully permit the probation officer to monitor the minor’s
use of marijuana, to monitor the minor’s use of other commonly abused
controlled substances, and the minor’s course of treatment for depression,
including the use of any relevant prescribed medication for that
condition.
Otherwise, however, the requirement
that the minor inform the probation officer of all other prescribed medications
could well intrude into areas that have nothing to do with the minor’s offense
or rehabilitation.
The requirement—that the minor
inform the probation officer of all her prescription medications—clearly
involves conduct that is not itself criminal.
When a patient has a valid and lawful medical prescription for a
medication or treatment, virtually by definition the conduct is not itself
criminal.
The third Lent factor—that the probation condition requires or forbids
conduct not reasonably related to future criminality—presents a close
question. On the one hand, the minor’s
use of some prescription drugs might relate to future criminality, or to preventing
future criminality. Some controlled
substances present a high risk of leading to addiction or abuse. Others do not. Some prescription medications may relate to
the minor’s treatment for depression, which may have played a role in the
minor’s offense. However, many other
prescription medications would have no relevance to either the minor’s offense
(abuse of controlled substances) or to the conditions underlying or
contributing to the minor’s offense (depression).
The “overbreadth doctrine requires
that conditions of probation that impinge on constitutional rights must be
tailored carefully and [such conditions must be] reasonably related to the
compelling state interest in reformation and rehabilitation,†of a
probationer. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) And, while the court has broad power to
fashion reasonable probation conditions in criminal cases, the power of the
juvenile court is even broader. (See
Cal.App.4th 684, 692.)
In In re Christopher M., supra,
127 Cal.App.4th 684, the juvenile court considered the constitutionality of a
probation condition, similar to that here, which required a juvenile
probationer to disclose to the court all of his medical and psychological
records on request. There, Christopher
M. had been charged with a robbery of one victim, assault with a deadly weapon
and attempted robbery of another victim, and possession of hallucinogenic
mushrooms. The robbery, assault, and
attempted robbery charges each were enhanced with hate crime allegations; Christopher
had targeted his victims based on race, religion, nationality, ancestry,
gender, disability, or other protected characteristics. Eventually, Christopher had agreed to an
adjudication as to the robbery charge, and the other charges were dismissed. (Id.
at p. 689.)
Christopher’s background, including
his criminal record and his social history, involved the commission of a series
of crimes, during which he acted in concert with others and even videotaped the
crime. Christopher admitted to committing
and videotaping similar crimes, aimed at transients, undocumented aliens, and a
mentally disabled man. Christopher had
been an active gang member, and described himself as “ruthless,†and without
empathy for anyone while he was a member of the gang. He had not completed any programs he had been
ordered to participate in during an earlier probation, including
counseling. The court held that,
“the court’s decision to impose conditions of probation Nos. 45 and 46 is
reasonably tailored to fit Christopher’s reformative and rehabilitative needs,
given his demonstrated lack of empathy toward others, his history of gang
banging activity and participation in criminal conduct that involved violence
against innocent victims, his unwillingness to take full personal
responsibility for his antisocial behavior, his substance abuse problems, and
his refusal to meaningfully participate in counseling and a substance abuse
program as he had promised to do as a condition of a prior grant of
probation. The probation conditions at
issue here, and the access to Christopher’s treatment records they provide,
will assist the probation officer and the court to determine whether
Christopher is fully complying with the numerous conditions of his new grant of
probation, and whether, in the interest of rehabilitation and reformation,
treatment is succeeding in helping him to overcome his psychological,
behavioral, and substance abuse problems.â€
(In re Christopher M.,
With respect to Christopher’s claims
that the probation conditions violated his constitutional privacy rights, the
court held that, under Hill v. National
Collegiate Athletic Assn. (1994) 7 Cal.4th 1, “to prove a violation of this
constitutional guarantee, the complaining party must show (1) a legally
protected privacy interest; (2) a reasonable expectation of privacy under the
circumstances; and (3) conduct constituting a serious invasion of the privacy
interest. [Citation.] The Hill
court also held, however, that even if these three elements are established, a
violation of the right to privacy will not be found where the invasion of the
privacy interest is justified because it substantially furthers one or more
legitimate competing or countervailing privacy or non-privacy interests. [Citation.]
[¶] Here, it is undisputed that
Christopher has a privacy interest in his medical and psychological treatment
records. However, the state has a legitimate
countervailing interest in (1) protecting the public against Christopher’s
violent and antisocial conduct, and (2) determining both whether he is fully
complying with the numerous conditions of his new grant of probation, and
whether treatment is succeeding in helping him to gain empathy for others,
renounce completely his gang affiliation, and overcome his substance abuse
problem. We conclude the court did not
violate Christopher’s right to privacy by imposing conditions of probation Nos.
45 and 46.†(In re Christopher M., supra,
127 Cal.App.4th at p. 695.)
The minor here urges that her case
is distinguishable from Christopher M.;
she does not have a history of violence, nor participation in hate crimes, and
there is no reason to think that she would not be amenable to or cooperate in
mental health treatment or drug rehabilitation treatment. “Simply put, prescription medications bear no
relationship to [the minor’s] crime, so requiring [her] to disclose all of her
legitimate medical prescriptions to the probation officer does not bear any
reasonable relationship to either the underlying offense or a reduction in
future criminality.â€
The People assert, contrary to the
minor, that the probation condition does serve the state’s interests in rehabilitation. However, like the trial court below, the
People fail to establish an analytical bridge between the specific requirements
of this probation condition and the particular means and goals of
rehabilitation, which the probation is designed to foster. The juvenile court noted that the minor had
sold marijuana, that she may have used marijuana, and that she may have done so
because of her depression. The concerns
raised by the offense and by the minor’s circumstances were addressed by
probation conditions to attend counseling, to test for drugs at the probation
officer’s direction, not to use any controlled substances without a valid
prescription, not associate with drug users or sellers, not possess
paraphernalia, stay away from places where drugs are sold or used, and to
submit to a search at any time. There
was no reason to think, in contrast to the probationer in Christopher M., that the minor would refuse to go to counseling, or
that she was sociopathic or lacking in empathy, or that she would be actively
violent toward anyone. While the
probation officer might have some concern whether the minor might begin to
abuse other commonly abused addictive drugs, as well as marijuana, that concern
was already addressed by the drug testing and search terms. If a drug test reveals the use of controlled
substances for which a prescription is required, the minor could defend an
allegation of violation by producing a lawful prescription. Other kinds of medications, which do not pose
a significant risk of abuse, have nothing to do with the minor’s offense, nor
her rehabilitation, and as to such types of medication, the minor is entitled
to retain the privacy of her medical information. The condition, requiring the minor to
affirmatively disclose all prescription
medications, potentially including many medications that have no relationship
to either the offense or to the minor’s rehabilitation, is overbroad. Accordingly, we shall order that provision of
probation condition No. 10 stricken.
DISPOSITION
For the reasons stated,
probation modified in the following respects:
Probation condition No. 5 is
modified to read: “5. Not knowingly leave the [S]tate of California
without first obtaining prior approval and a valid travel permit from the
Probation Officer.â€
Probation condition No. 10 is
modified in part and stricken in part, to read:
“10. Not knowingly use or possess
any controlled substance or toluene-based substance without medical
prescriptions.â€
Probation condition No. 11 is
modified to read: “11. Neither knowingly use nor possess any drug
paraphernalia as described in Health and Safety Code section 11014.5 or Health
and Safety Code section 11364.5(d).â€
Probation condition No. 12 is
modified to read: “12. Neither knowingly possess nor consume any
alcoholic beverages.â€
Probation condition No. 14 is
modified to read: “14. Not knowingly possess any dangerous or deadly
weapons, including but not limited to any knife, gun, or any part thereof, ammunition,
blackjack, bicycle chain, dagger or any weapon or explosive substance or device
as defined in Penal Code section 12020 and/or Penal Code section 626.10.â€
As so modified, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
