Opinion
A159991
05-11-2021
In re JOSE C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super Ct. No. J19-01089)
The juvenile court found Jose C. was an accessory after the fact in a robbery and placed him on home supervision subject to certain probation conditions. His appellate counsel initially requested this court independently review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). (See In re Kevin S. (2003) 113 Cal.App.4th 97, 99 [Wende procedure applies to juvenile appeals].) Jose's counsel informed him of his right to file a brief of his own and he did not file one. Upon our independent review of the record, we found no arguable appellate issues other than regarding two probation conditions, as to which we ordered further briefing. The parties agree these conditions are improper. We reach this same conclusion.
BACKGROUND
In December 2019, the Alameda County District Attorney filed a petition under Welfare and Institutions Code section 602 alleging that Jose, then 17 years old, had committed a second degree robbery. Upon amendment to change the offense to accessory after the fact (Pen. Code, § 32), Jose admitted the truth of the allegations. The court found them to be true, set the maximum term of confinement at three years, ordered Jose to stay away from the victim, released him on home supervision and transferred the case to Contra Costa County, where Jose resided.
After the case's transfer, the probation department reported for the dispositional hearing that shortly after midnight on December 19, 2019, police in downtown Oakland investigating a robbery of a Fox Theater security guard saw a male, later identified as Jose, who matched a suspect description. Jose quickened his pace and turned a corner. The police exited their vehicle and approached Jose as he threw an object over a fence. The victim identified Jose as one of the robbers. He said two males approached him as he sat in his vehicle, that he turned his wallet over to one (not Jose) who was armed and demanded his money, that Jose took his backpack containing a radio and hearing aids, and that the two robbers fled on foot.
When detained, Jose said he picked up two friends, S.C. and I.H. (later identified as the armed robber) and drove to Oakland, where he parked his vehicle while his friends exited to smoke marijuana. Jose did not know if they took their plastic gun when they exited. They approached the victim, who was standing outside smoking, and took his wallet and backpack. Jose exited his vehicle to see what was happening. I.H. gave him the wallet and told him to take the money out, but Jose refused and gave it back. S.C. and I.H. ran into a club and Jose followed but was denied access. When police spotted him, he walked away because he was afraid. Police did not find a weapon in his possession, but found a firearm in the area where he had thrown something. Jose had an iPhone he said belonged to S.C. Police located I.H. from information on the iPhone but did not find anyone with S.C.'s name.
This was Jose's first referral and offense. He lived with his father and another family. His mother was in Mexico for a family emergency and her return date was unclear. At home he was subject to rules and behaved well, and worked with his father on landscape jobs. His father said the offense was due to negative friendships and that Jose had been calmer and more responsible after the father spoke with him about his actions.
Jose had failed all of his high school freshman classes and had not attended sophomore classes, but he had enrolled in high school soon after the incident. He reported being bullied in school for his inability to speak English and suspended multiple times for fighting. His father said he took Jose out of school for a time after Jose got into a fight and his car windows were vandalized. Jose hoped to work with computers or join the Army. He admitted to some marijuana and alcohol use since he was 16 and said he would stop both. He had no known psychological conditions. He said he took 10 pills for stomach pain when he was 16 and angry with his mother, which his father reported occurred soon after Jose's grandfather passed away. It led to a short hold of Jose under Welfare and Institutions Code section 5150.
At the dispositional hearing, Jose's counsel objected to two of the department's recommended probation conditions. She contended the condition barring Jose from the campus of any school in which he was not enrolled was unrelated to his offense, and the condition that he report police contacts to the probation department within 24 hours was too vague and overly burdensome. The two conditions were "standard" according to the prosecutor and probation officer.
Counsel objected to a recommended condition regarding electronic searches, which the court did not impose. Also, at counsel's request the court authorized the probation department to remove Jose's ankle monitor during his planned participation in ROTC programming.
The court rejected Jose's counsel's objections. It concluded "[t]here were co-responsibles in this case," found no "benefit to be had by Jose being on school campuses when he's not a student at the school," considered that condition to be "relevant and helpful to his probation terms," and found the police reporting condition to be "important" and unambiguous.
The court ordered that Jose was to be a ward of the court with no termination date. It further ordered him to reside at his father's home for 60 days with possible release after 45 days if he complied with the court's guidelines and probation terms and conditions, including that he submit to drug and alcohol testing and warrantless police searches, and also ordered him to participate in counseling and community service. The court's probation conditions also prohibited Jose from being on a campus of any school in which he was not enrolled and required him to report any police contacts to the probation department within 24 hours. Jose timely appealed.
DISCUSSION
" 'The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct.' " (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) A ward of the juvenile court placed on probation is subject to "any and all reasonable conditions that [the court] 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 juvenile court "has wide discretion to select appropriate conditions." (In re Sheena K. (2007) 40 Cal.4th 875, 889.) We review probation conditions for abuse of discretion. (Ricardo P., at p. 1118.)
I.
The Court Erred in Imposing the School Campus Condition.
We agree with the parties that the juvenile court abused its discretion in imposing the probation condition prohibiting Jose from being on the campus of schools in which he was not enrolled. The condition was not related to his offense or his possible future criminality.
"[W]hile the juvenile court may impose a wider range of probation conditions [than may be imposed on adults], those conditions are permissible only if ' " 'tailored specifically to meet the needs of the juvenile.' " ' " (In re D.G. (2010) 187 Cal.App.4th 47, 53 (D.G.).) " 'A condition of probation will 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 . . . ." ' " (D.G., at p. 52, quoting the three-prong test established in People v. Lent (1975) 15 Cal.3d 481, 486, superseded by statute on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290, 291.) " '[A]ll three prongs must be satisfied before a reviewing court will invalidate a probation term.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.) The requirement "that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) Probation conditions may not be imposed simply because they are reasonably related to enhancing effective supervision of probationers because this "would effectively eliminate the reasonableness requirement in Lent's third prong, for almost any condition can be described as 'enhancing the effective supervision of a probationer.' " (Id. at p. 1127.) Rather, "a juvenile court imposing such a condition must consider whether, in light of 'the facts and circumstances in each case' [citation], the burdens imposed by the condition are proportional to achieving some legitimate end of probation." (Ibid.)
In D.G., a juvenile court imposed a probation condition for a minor who committed a residential burglary prohibiting him from coming within 150 feet of any school campus other than the school he was attending. (D.G., supra, 187 Cal.App.4th at p. 50.) D.G. appealed, and our colleagues in Division One of this court held the condition was unreasonable under Lent's three-prong test: "First, there is no relationship between school or students and [D.G.]'s current or past crimes. None were committed on school grounds; none involved school-age children; and none involved uniquely juvenile conduct. Nor does this condition relate to conduct that is itself criminal. It is not illegal for persons to pass within 150 feet of school grounds, and while . . . there are statutes regulating nonstudent presence on school grounds, none of these statutes bans persons from school grounds altogether, as the probation condition does. Finally, there is no reason to conclude this restriction is related to [D.G.]'s possible future criminality. Because there is nothing in his past or current offenses or his personal history that demonstrates a predisposition to commit crimes near school grounds or upon students, or leads to a specific expectation he might commit such crimes, there is no reason to believe the current restriction will serve the rehabilitative function of precluding appellant from any future criminal acts." (D.G., at p. 53.)
The D.G. court modified the condition, citing the juvenile court's and the Attorney General's concerns that D.G.'s access to students should be restricted to the extent legally permissible under Penal Code section 627.2 (D.G., supra, 187 Cal.App.4th at p. 56), which provides in relevant part: "No outsider shall enter or remain on school grounds during school hours without having registered with the principal or designee . . . ." The condition as modified read: "Do not enter on the campus or grounds of any school unless enrolled, accompanied by a parent or guardian or responsible adult, or authorized by the permission of school authorities." (Id. at p. 57.)
Both Jose and the People agree that, like the situation in D.G., Jose's offense was unrelated to school, school personnel, school property or other juveniles. Therefore, the school campus condition was not related to his offense or to his possible future criminality. We agree, and shall remand this matter for the juvenile court to strike or modify the condition. (See In re I.M. (2020) 53 Cal.App.5th 929, 936-937 (I.M.) [remanding for the court to strike or modify an unconstitutionally vague and overbroad probation requirement].)
The People also assert the condition was insufficiently specific to give Jose notice of the areas he was to avoid, based on People v. Barajas (2011) 198 Cal.App.4th 748, 760-762 (condition that the defendant not be "adjacent" to school property insufficiently clear regarding the distance he had to maintain). We conclude the condition here prohibiting Jose from being "on" school campuses was sufficiently clear.
II.
The Court Erred in Imposing the Police Contacts Condition.
We also agree with the parties that the juvenile court abused its discretion by requiring Jose to "report any police contacts to the [probation department] within 24 hours" because this condition is too vague and overbroad.
A probation condition may be invalidated as too vague and overbroad. "Under the void for vagueness doctrine, based on the due process concept of fair warning, an order ' "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." ' [Citation.] The doctrine invalidates a condition of probation ' " 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " ' [Citation.] By failing to clearly define the prohibited conduct, a vague condition of probation allows law enforcement and the courts to apply the restriction on an ' " 'ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.' " ' " (In re Victor L. (2010) 182 Cal.App.4th 902, 910, quoting In re Sheena K., supra, 40 Cal.4th at p. 890.)
In People v. Relkin (2016) 6 Cal.App.5th 1188, the appellate court held that a probation condition to " 'report to the probation officer . . . any . . . contacts with or incidents involving any peace officer' " was unconstitutionally vague and overbroad because it failed to give fair warning of what constituted a "contact." (Id. at pp. 1196-1197.) For example, it was unclear if the condition would cover "say[ing] 'hello' to a police officer or attend[ing] an event at which police officers are present." (Ibid.)
In I.M., supra, 53 Cal.App.5th 929, our colleagues in Division Three of this court considered a probation requirement imposed on a minor who had committed felony grand theft that was virtually identical to the condition imposed here. (Id. at p. 936.) There, too, the parties agreed that the requirement was unconstitutionally vague and overbroad. (Ibid.) The court, relying on People v. Relkin, agreed and remanded the matter for the juvenile court to determine whether to strike or modify the requirement to avoid constitutional defects. (I.M., at pp. 936-937.) We shall do the same.
DISPOSITION
The order appealed from is affirmed, except that we remand to the juvenile court to strike or modify the school campus and police contacts probation conditions consistent with this opinion.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.