Opinion
E051675 Super. Ct .No. INJ021422
08-09-2011
In re D.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.D., Defendant and Appellant.
Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Affirmed as modified.
Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a negotiated agreement in Orange County, defendant and appellant D.D. (Minor) admitted that he had committed a lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a)). After the matter was transferred to Riverside County, the juvenile court declared Minor a ward of the court and placed him on probation on various terms and conditions in a suitable foster home, group home, or placement facility. On appeal, Minor contends (1) the juvenile court failed to make a determination under Welfare and Institutions Code section 241.1; and (2) four of his probation conditions must be modified or stricken because they are unconstitutionally vague and/or overbroad. We agree with the parties that Minor's probation conditions must be modified. We reject Minor's remaining contention.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL BACKGROUND
The factual background is taken from the probation officer's report.
In April 2010, then 16-year-old Minor ordered his 11-year-old roommate at a group home to orally copulate him. The victim complied. At the time of the incident, the victim was four feet six inches tall and weighed 110 pounds, while Minor was six feet four inches tall and weighed 240 pounds. Minor was characterized as a "bully" by staff members at the group home and had threatened several other children.
Minor initially denied any sexual acts, but later admitted that he had the victim orally copulate him. Minor was subsequently arrested.
II
DISCUSSION
A. Determination under Section 241.1
Minor contends that the juvenile court erred in failing to make a determination under section 241.1 whether he was better suited for dependency or delinquency jurisdiction.
When, as here, a minor is already a dependent of the juvenile court under section 300 and a second petition is filed to declare the minor a ward under section 602, the county probation department and the child protective services department "shall, pursuant to a jointly developed written protocol . . . , initially determine which status will serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court with the petition that is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor." (§ 241.1, subd. (a); see also Cal. Rules of Court, Rule 5.512.) "A minor may not be both a dependent child and a delinquent ward of the court absent a written agreement between the juvenile court, [Child Welfare Services], and probation department . . . . [Citation.]" (In re Henry S. (2006) 140 Cal.App.4th 248, 254.)
Here, the parties agree the juvenile delinquency court assessing the section 602 petition had to decide whether Minor should be treated as a dependent or a delinquent because it was acting on the petition that created the potential for dual jurisdiction. (In re Marcus G. (1999) 73 Cal.App.4th 1008, 1013 [where the potential for dual jurisdiction arises because a second petition is filed regarding a minor already within the juvenile court's jurisdiction, the court presented with the second petition shall make the necessary determination].)
Section 241.1 does not, however, require the court conduct a separate hearing on the status determination, nor does it require the court to state its reasons on the record for making the determination. (In re Henry S., supra, 140 Cal.App.4th at p. 257.) This notwithstanding, "a specific decision is required from the court as to which type of jurisdiction it will exercise over a minor. Even where the court has actually adjudicated a minor to be a ward of the delinquency court, dependency proceedings may not be dismissed absent such a finding." (Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2001) 87 Cal.App.4th 320, 325-326.)
Under rule 5.512, on the request of the child, parent, guardian, or counsel, or on the court's own motion, the court may set a hearing for a determination under section 241.1. If such a hearing is conducted, it must occur before the jurisdictional hearing, and after the hearing the court must "make a determination regarding the appropriate status of the child and state its reasons on the record or in a written order." (Cal. Rules of Court, rule 5 .512(g); see also In re Henry S., supra, 140 Cal.App.4th at p. 257.) Here, it does not appear that any party (or the court on its own) requested a separate hearing on the status determination prior to the adjudication hearing or at any other point.
As a preliminary matter, the People assert Minor has waived any complaint about the sufficiency of the status determination by failing to raise it below. Minor here characterizes his complaint concerning the status determination as a failure of the court to exercise its discretion, and a complete failure to exercise discretion is not forfeited by failing to raise it in the trial court. (See In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.) "'A ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]' [Citation.] 'Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]' [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
However, this case does not resemble the situation where the court completely fails to exercise the discretion conferred by the law. Indeed, there is no indication in the record that the court believed it lacked discretion with respect to the status determination. On the contrary, the court was aware of Minor's status under both section 602 and section 300.
At a June 3, 2010, contested detention hearing, the probation officer testified in regard to the section 241.1 report and minor's status under both section 602 and section 300. The court also heard from Minor's mother concerning Minor's mental and behavioral issues and whether she would be able to care for Minor if he were placed in her home. In addition, at that hearing, the prosecutor requested that the court take judicial notice of the section 241.1 report. Although the court initially noted that it did not have the report, it later stated, "Take that back, there is an attached copy of the 241.1 report from Orange County, but as of preparing for the proceeding yesterday, I simply read the detention report." The court continued, "I didn't read all the documentation from Orange County, because I did not think it was . . . necessary; that it was simply enough for the Court to review our own detention report because I was still going to have to consider . . . some subsequent time disposition, and it would be more appropriate for me to consider 241 reports and information from Orange County at that time as opposed to the issue of detention." At the conclusion of the detention hearing, the court detained minor and placed him in the care of the probation department. The court thereafter made findings under section 602.
The section 241.1 report was filed on April 29, 2010. That report not only disclosed and described Minor's status under section 300, but also explained why, in the view of the case worker and probation officer, the section 300 placement was not successful, and Minor would benefit from a reclassification or declaration of wardship.
The dispositional hearing was held on July 1, 2010. At that hearing, the court indicated that it was in receipt of a psychological evaluation conducted on Minor by Dr. Jones and also noted a representative from child protective services was present. Following argument from counsel, the court declared Minor to be a ward of the court under section 602 and stated that "care, custody, control of the minor will be with the chief probation officer of Riverside [C]ounty." As to placement, the court concluded, "[P]robation is ordered to place the minor in a suitable facility that . . . will provide him with necessary psychiatric treatment to control his emotions and inappropriate sexual activity." The court further explained, "The probation department is ordered to place the minor in a placement that will allow him to continue with his special education needs related to his mental impairment and specific learning problems. And the Court is ordering probation that his placement should be carefully screened so as not to place the minor with younger children or sophisticated older children. It needs to be a special placement that does not increase the risk factor of the minor reoffending or the minor being in a position that he could possibly be a victim, himself, of other older more sophisticated minors. [¶] Probation should, I believe, follow the recommendations made by Dr. Jones, because I think they're quite appropriate. So the placement needs to somehow coordinate with the recommendations of the Doctor." In addition, Minor did not argue for dependency, and the record indicates that adjudication of Minor as a ward of the court was uncontested.
The court's comments concerning the services available to Minor as a delinquent indicate that the court and the parties understood that in exercising delinquency jurisdiction, Minor's status as a section 300 dependent would end. While it is true the court neither expressly declared its choice between delinquency jurisdiction and dependency jurisdiction nor expressed its rationale for its determination, we are not convinced that the court failed to exercise its discretion in making its determination. Unlike the situation presented in Los Angeles County Dept. of Children & Fam. Services v. Superior Court, supra, 87 Cal.App.4th 320, the court's determination in this case was not made at an ex parte hearing concerning a temporary placement issue unrelated to section 241.1. Here, all parties were present and participated in the hearing. As the section 241.1 report and the discussion between the court and counsel at the hearing show, the parties and the court understood the matters at issue. Although it would have been better if the court had made an express finding referring to section 241.1 and its exercise of discretion, where a statute neither requires an express finding nor contains any sanction for noncompliance, the general rule is "'that a trial court is presumed to have been aware of and followed the applicable law.'" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
Minor appears to argue that the court did not make an informed decision based on its comment, "I don't have the probation report," at the dispositional hearing. However, there is nothing in the record to suggest that the court did not read and consider the probation report or the section 241.1 report.
In our view the court's error here was not the failure to exercise its discretion in the first instance, but instead a failure to make a clear finding on the issue and to state a choice on the record. Such an error is subject to the principles of waiver because it could have been easily corrected if it had been timely called to the court's attention. We reject Minor's assertion that an objection would have been futile, since nothing in the record supports such an assertion. His counsel could have pointed out that the record did not clearly reflect the court's finding under section 241.1, but instead Minor's counsel acquiesced in the placement recommendation.
In any event, the court's error, if any, in failing to make explicit its determination that Minor would benefit from the status as a section 602 delinquent rather than the status as a section 300 dependent, as required by the statute, is subject to harmless error analysis. (See In re Jose (1983) 148 Cal.App.3d 55, 61 [applying harmless error analysis to the court's failure to explicitly find that Youth Authority commitment would benefit the minor].) There is nothing in this record to suggest that Minor would have obtained a more favorable outcome absent this error. There was sufficient evidence in the record to support the court's determination that Minor's reclassification as a section 602 delinquent was appropriate and beneficial.
B. Probation Conditions
Minor contends four of his probation conditions are unconstitutionally vague and overbroad and should therefore be stricken or modified. The People agree the challenged probation conditions are vague and should be modified.
Specifically, the second probation condition required Minor to "[o]bey and keep parent(s)/guardian(s) and the Probation Officer informed of whereabouts, associates, and activities." The sixth probation condition required Minor to "[n]ot have direct or indirect contact with any non-relative on probation or parole unless approved by Probation Officer." The 17th probation condition required Minor to "[s]ubmit to search of person or property by any Probation Officer, law enforcement officer, or school official for sexually explicit materials." Finally, the 20th probation condition forbids Minor from possessing "sexually explicit materials."
The probation conditions as set out in the minute order of July 1, 2010, are not designated by either letter or number; it would be helpful to this court if they were. For purposes of this opinion, we will consider them consecutively numbered, beginning with the first condition preceded by a "#" sign.
"A [probation condition] is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.]" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
A probation condition may also be unconstitutionally vague. A vagueness challenge is based on the "due process concept of 'fair warning.'" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Therefore, 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 challenge on the ground of vagueness. [Citation.]" (Ibid.)
1. Second probation condition
The requirement that the minor keep the probation officer informed of his "whereabouts, associates, and activities" is hopelessly vague. First, "whereabouts" is vague with respect to scale. How large must a change of location be to trigger the duty to inform? From room to room? From home to the supermarket? From home to school? From city to city? Second, "associates" is similarly vague with respect to the necessary relationship between the minor and the other person. Presumably a good friend would qualify. But what about a friendly neighbor? A classmate? A soccer teammate? An adult supervisor, such as a coach? An adult uncle? Would it matter how much time the minor spent with the other person? Third, "activities," too, is vague. A person typically engages hundreds of activities over the course of a day. Indeed, taken literally, this would seem to impose a huge administrative burden on the probation officer. But if it is not to be taken literally, where is the line to be drawn? Quite frankly, if we had to keep someone informed of our whereabouts, associates and activities, we would be at a loss to know how to proceed.
Admittedly, in In re Ramon M. (2009) 178 Cal.App.4th 665, the court upheld a probation condition that stated, "'Your associates are to be approved by your probation officer and your parents/guardian. You are not to associate with any individuals whom you have met while in any County Institutions. You are not to associate with any member of the Barrio Pobre gang or any other gang as directed by your probation officer.'" (Id. at p. 676, italics added.) The court rejected the contention that "associates" could include "grocery clerks, mailmen or health care providers": "The context of the provision relates to gang members and persons Ramon met in county institutions. No reasonable person would read this provision to mean that Ramon is required to seek prior approval to encounter people he does not yet know, or encountered only in incidental or formal situations. [Citation.]" (Id. at p. 677.) Here, by contrast, the probation condition includes no such narrowing language.
Presumably the purpose of the probation condition is to keep Minor from sneaking around — i.e., from deliberately concealing his activities and associates from his parents or guardians and the probation officer, because he knows they would disapprove of them. The same purpose, however, could be accomplished by a more specifically worded probation condition. (See, e.g., In re Sheena K., supra, 40 Cal.4th at pp. 890-891 [probation condition prohibiting minor from associating with anyone whom she knew her probation officer had disapproved would be constitutional].)
The California Supreme Court determined that a probation condition requiring that the minor not associate with anyone disapproved of by her probation officer was unconstitutionally vague "in the absence of an express requirement of knowledge . . . ." (In re Sheena K., supra, 40 Cal.4th at p. 891.) This was because the condition itself did not notify the minor in advance with whom she was prohibited from associating, nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) While that court recognized that it had previously approved of reading an implied requirement of knowledge into a similar probation condition, it rejected doing so in its case: "In the interest of forestalling future claims identical to [the minor's] based upon the same language, we suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone 'known to be disapproved of' by a probation officer or other person having authority over the minor." (Id. at p. 892.) Thus, it approved the appellate court's modification of the minor's probationary conditions to include an explicit requirement of knowledge. (Id. at pp. 879, 892.)
Based on the above, we will modify the second probation condition.
2. Sixth probation condition
Minor also challenges the sixth probation condition, prohibiting him from having "direct or indirect contact with any non relative on probation or parole unless approved by Probation Officer." Minor contends, and the People concede, that this condition is unconstitutionally vague. He asks that the condition be modified to include a knowledge qualifier. We agree and will modify the condition.
3. Seventeenth and twentieth probation conditions
Minor also challenges the 17th and 20th probation conditions for failing to specify who will determine what constitutes "sexually explicit material" and for failing to include a knowledge requirement. The People concede. We agree with the parties that the probation conditions are vague and must be modified. (See, e.g., In re Sheena K., supra, 40 Cal.4th at p. 888.)
III
DISPOSITION
The second probation condition is modified to read as follows: "Minor shall obey his parent(s)/guardian(s) and not associate with anyone or participate in any activities minor knows to be prohibited by his probation officer."
The sixth probation condition is modified to read as follows: "Not have direct or indirect contact with any non-relative known by minor to be on probation or parole unless approved by Probation Officer."
The 17th probation condition is modified to read as follows: "Not knowingly possess sexually explicit materials that your probation officer has informed you are inappropriate."
The 20th probation condition is modified to read as follows: "Submit to search of person or property by any Probation Officer, law enforcement officer, or school official for any sexually explicit materials that the probation officer has informed you are inappropriate."
The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
KING
J.