Opinion
A130621
12-20-2011
In re N.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. SJ10015895)
N.R. (appellant), born in 1993, challenges several probation conditions the juvenile court imposed after it placed him on probation based on a finding that he committed assault with a weapon by means of force likely to produce great bodily injury (Pen. Code § 245, subd. (a)(1) ) and personally inflicted great bodily injury upon the victim (§ 12022.7). He contends: (1) probation conditions requiring him to "perform well" in school and "[b]e of good citizenship and good conduct" are impermissibly vague; and (2) a drug and alcohol testing condition and a search condition are overbroad and unreasonable. Appellant also contends he received ineffective assistance of counsel to the extent his trial counsel waived his contentions by failing to object below. We affirm in part and reverse in part and modify the judgment as set forth below.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
An amended juvenile wardship petition was filed on November 5, 2010, alleging appellant committed assault with a weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), count 1) and battery resulting in serious bodily injury (§ 243, subd. (d), count 2) and personally inflicted great bodily injury upon the victim (§ 12022.7). It was also alleged that appellant was ineligible for deferred entry of judgment due to the nature of the offenses.
The petition was based on an incident that occurred at approximately 3:30 p.m. on October 29, 2010. At a contested jurisdictional hearing, 20-year-old K.G. testified he drove to a high school in Hayward with his cousin A.P. to pick up A.P.'s friends. As K.G. sat in his parked car with A.P., he noticed S.D. walking with about six to eight people. K.G. got out of his car and said to S.D., "I know you took [A.P.'s iPod]. Just bring it back and give it to her tomorrow. And if not tomorrow, just when you see her at school." S.D. responded he did not have the iPod, and K.G. responded that he knew S.D. had it, that he did not want any "issues," and just wanted him to give it back to A.P. At that point, another person "came into the conversation" and said " 'get the fuck out of here,' or something like that." K.G. responded, "This has nothing to do with you. This is between me and [S.D.]." K.G. told the other person that he didn't want any "problems" or "issues," and began walking back to his car. When K.G. "glanced over [his] shoulder," he saw the person taking his backpack and shirt off and "rushing towards [him]." Other people from the group were "instigating like, 'oh, you better get him,' things like that."
The person swung at K.G. and K.G. backed up to dodge the swing. K.G. punched back, the two continued to punch each other. As K.G. attempted to walk back to his car, someone else punched him in the back of the head. The next thing K.G. remembered was that he was "staggering" on the other side of the street, "blacking out" and "coming conscious and unconscious." He "just felt punches" to his face from "different angles" and estimated that more than ten punches had been "thrown" at him. When he woke up in an ambulance, he was screaming and shouting for his life and felt like his head was spinning. His head, nose and face were throbbing, and he vomited continuously. He spent approximately three days at the hospital, received pain medication, and wore a neck brace for a week and a half.
A.P. testified she was sitting in a car with K.G. when she saw S.D. and another individual, M.H. After K.G. and S.D. argued about her missing iPod, M.H. took off his shirt and hat and tried to punch K.G. M.H. then hit K.G. in the face and K.G. punched M.H. back. As 30 to 40 people crowded in around the fight, A.P. pulled up the car windows and got out of the car. She tried to walk towards the fight but "couldn't see much" because there were so many people. Security guards approached and the crowd began to "break[] up." A.P. went "to the side" and saw appellant and another person "stomping on [K.G.'s] head" as K.G. lay on the ground with his face facing up. She had seen appellant before "around school" but had never seen the other person who was "stomping on [K.G.'s] face." K.G. then lay on the ground, unconscious or asleep, for approximately 25 minutes. On cross-examination, A.P. testified that a statement she gave to police approximately one hour after the incident was incorrect because it stated that she saw appellant punch K.G., when in fact she saw him kick K.G. A.P. also did not remember telling the police that M.H. pushed K.G. to the ground and kicked him in the head about three times.
Hayward police officer Jose Najera testified that when he responded to the scene, he noticed that appellant had red stains on his right pant leg and socks, which he believed to be blood. Appellant's grandmother testified that when appellant came home from school on October 29, 2010, he did not look upset or disheveled in any way. She also did not notice any blood on him. Appellant did not belong to any gangs. Appellant's grandfather testified that on October 29, 2010, appellant looked the same as he did every day when he returned from school and was not disheveled or upset. He did not notice any bruises or blood on appellant. Appellant had never been in trouble with the police or at school and was not involved in any gangs. Neither grandparent had ever heard appellant mention the names of any of the individuals involved in the incident.
Appellant testified that K.G. got out of his car and approached him, S.D. and M.H. and asked them who had his girlfriend's iPod. S.D. responded that he did not know what K.G. was talking about. K.G. said that whoever had the iPod "better give it back or else." M.H. told K.G. to leave him and the others alone and that he did not know what K.G. was talking about. S.D. and appellant responded in the same way. K.G. started to go back to his car but returned to the group and "tipped" S.D.'s hat, telling him to take the hat off. M.H. told K.G. to leave S.D. alone and K.G. "got into [M.H.'s] face." K.G. pushed M.H. and M.H. took off his shirt, and a fight ensued. M.H. also took his backpack off. M.H. took about five swings at K.G. and K.G.'s lip began to bleed. K.G. ran across the street to get away from the fight, and M.H. and S.D. walked away. A crowd of 20 to 30 people then came over, and appellant got caught in the crowd. Someone "came out from the crowd and struck [K.G.]" on the side of his face "real hard." K.G. fell hard on his back and hit the ground with an audible "thud." Appellant did not remember anything about the person who struck K.G., including his skin color or the length of his hair. Appellant was not involved in the fight, did not hit K.G., and walked away and went home. He testified his pants could have been stained from his landscaping class.
The juvenile court sustained count 1 and found the great bodily injury enhancement to be true. It made no finding as to count 2. It determined that the maximum time of confinement was seven years. In a dispositional report, the probation department recommended home placement and formal probation due to the low risk of appellant reoffending. At the dispositional hearing, the juvenile court placed appellant in his father's home and placed him on formal probation under various conditions.
The probation conditions included requirements that appellant have no contact with the victims, not leave his residence overnight or leave the county without prior permission, not associate with his co-participants, abide by a curfew, cooperate with the probation officer, obey all laws, obey his parents or guardians, not use or possess alcoholic beverages, narcotics, drugs, other controlled substances, related paraphernalia or poisons, and not use or possess any deadly weapons or explosive devices. Other conditions included requirements that he submit to drug tests ordered by the probation officer, "[s]ubmit [his] person and any vehicle, room or property under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night," "[a]ttend school on time and regularly; be of good behavior and perform well," and "[b]e of good citizenship and good conduct."
DISCUSSION
1. "Vague" probation conditions
Appellant contends the probation conditions requiring him to "perform well" in school and "[b]e of good citizenship and good conduct" are impermissibly vague and should be stricken or modified. We agree.
"A probation condition, whether in an adult or juvenile court, may be challenged as unconstitutionally vague or overbroad. [Citation.] . . . A restriction is unconstitutionally vague if it is not ' "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.] A restriction failing this test does not give adequate notice—'fair warning'—of the conduct proscribed. [Citations.]" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) In determining whether a probation term gives fair notice, " ' "abstract legal commands must be applied in a specific context," and that although not admitting of "mathematical certainty," the condition must have reasonable specificity.' " ' [Citation.]" (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1144.)
Here, the Attorney General concedes, and we agree, that the probation condition requiring appellant to "perform well" in school is vague and must be modified. (See People v. Turner (2007) 155 Cal.App.4th 1432, 1436 ["We have the power to modify a probation condition to render the condition constitutional"].) Appellant suggests that the condition might be modified to require him "to obtain D letter grades or better in all of his classes." He relies in part on In re Angel J. (1992) 9 Cal.App.4th 1096, 1102, footnote 7, in which the Court of Appeal upheld a probation condition requiring the minor to maintain "satisfactory grades," which the Court defined as "passing grades in each graded subject," i.e., "not failing, such as D or above in an A through F grading system." The Attorney General states that "in keeping with the juvenile court's desire that appellant do 'well,' as opposed to what appellant characterizes as the 'satisfactory' grades of D or better," the condition should be modified to require appellant to obtain "a C- or better average grade point level."
A probation condition is to be interpreted in "context" and with the use of "common sense." (In re Ramon M. (2009) 178 Cal.App.4th 665, 677.) Here, appellant received a D, A, D+, C, D and F in his classes for the first quarter of the 2010-2011 school year. He received four grades of F in the second quarter of the same school year. Appellant wanted to do better in school, and his goal was to improve his grades, graduate from high school, and attend college. His school attendance was "very good" and there were no behavioral reports—evidence from which the juvenile court could reasonably determine his below average grades were not due to truancy or intentional disregard for his grades. The Attorney General states that the use of the word "well" indicates the juvenile court wanted appellant to maintain better than "satisfactory" or "passing" grades. The definition of the word "well," however, includes "satisfactorily." (See Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/well.) Further, as noted in In re Robert M. (1985) 163 Cal.App.3d 812, 818, footnote 5, a " 'satisfactory grades' " requirement is a standard condition of probation. . . ." (See also In re Angel J., supra, 9 Cal.App.4th at p. 1102 ["the term 'satisfactory grades' arose from use of a standardized juvenile court form, where the court selects appropriate probation conditions from among a list of sixteen restrictions].) Although the juvenile court in this case used the term "well" rather than "satisfactory," there is nothing in the record indicating the court intended to deviate from this standard and demand a higher level of performance from appellant. We therefore construe the probation condition in this case to mean that appellant should be required to obtain "satisfactory" or "passing" grades in each subject, i.e., "not failing, such as D or above in an A through F grading system." (See In re Angel J., supra, 9 Cal.App.4th at p. 1102, fn. 7.)
We also agree with appellant that the probation condition requiring him to " '[b]e of good citizenship and good conduct' " is impermissibly vague in the context of this case. The Attorney General correctly points out that one court characterized "satisfactory grades and citizenship" as a standard condition of probation. (Citing In re Robert M., supra, 163 Cal.App.3d at p. 818, fn. 5, italics added.) However, here, the juvenile court imposed other, specific conditions requiring appellant to engage in "good citizenship and good conduct" at home, school, and in the community, e.g., "[a]ttend school on time and regularly, be of good behavior and perform well," obey the law, obey the instructions of his parents, guardians and probation officer, not use or possess alcohol or drugs, and abide by a curfew. The juvenile court did not explain what, if any, additional "good citizenship and good conduct" was required, and it was therefore unclear what that condition required appellant to do. The Attorney General states that if the condition is vague, it "could be modified to read that appellant is to obey all school rules and regulations, and all directives of teachers and other school personnel." Such a condition, however, would be duplicative, as it is covered by the condition requiring appellant to engage in "good behavior" at school—a condition appellant does not challenge on appeal. Because reasonable minds can differ as to what constitutes "good citizenship and good conduct" in this case, we conclude the condition does not set any meaningful standard to guide the court in implementing it, and therefore cannot stand.
2. Overbroad and unreasonable probation conditions
Appellant contends the probation conditions requiring him to submit to drug and alcohol testing and to searches are overbroad and unreasonable. We disagree.
"Under Welfare and Institutions Code section 730, subdivision (b) the juvenile court 'may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.' '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. . . ." ' [Citations.] All three factors must be present to invalidate a condition of probation. [Citation.]" (In re R.V. (2009) 171 Cal.App.4th 239, 246.) An appellate court will not disturb the juvenile court's broad discretion over probation conditions absent an abuse of discretion. (Ibid.) "We grant this broad discretion so that the juvenile court may serve its rehabilitative function and further the legislative policies of the juvenile court system. [Citations.]" (Ibid.)
" 'In fashioning the conditions of probation, the juvenile court should consider the minor's entire social history in addition to the circumstances of the crime. [Citation.] Thus, "[a] condition of probation which is [legally] impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court." ' [Citation.]" (Ibid.) " 'In distinguishing between the permissible exercise of discretion in probationary sentencing by the juvenile court and that allowed in "adult" court, we have advised that, "[a]lthough the goal of both types of probation is the rehabilitation of the offender, '[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment . . . .' [¶] In light of this difference, 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." ' [Citation.] '[J]uvenile conditions may be broader than those pertaining to adult offenders. This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed.' [Citation.]" (Id. at pp. 246-247.)
"[W]hen the state asserts jurisdiction over a minor, it stands in the shoes of the parents. A parent may curtail a child's exercise of constitutional rights because a parent's own constitutionally protected " ' "liberty" ' " includes the right to " ' "bring up children" ' " and to " ' "direct the upbringing and education of children." ' " ' [Citation.]" (Id. at p. 248.) The juvenile court may therefore "impose probation conditions that infringe on constitutional rights if the conditions are tailored to meet the needs of the minor.' [Citation.] (Ibid.)
Here, the juvenile court imposed a probation condition, which appellant does not challenge on appeal, prohibiting him from using or possessing drugs and alcohol. He does not dispute that that condition was properly imposed, as the use or possession of drugs and alcohol are illegal. He asserts, however, that because there was no evidence that he had ever used drugs or alcohol, it was unreasonable to allow the probation officer to order him to submit to drug testing. Welfare and Institutions Code section 729.3, however, provides, "If a minor is found to be a person described in Section 601 or 602 and the court does not remove the minor from the physical custody of his or her parent or guardian, the court, as a condition of probation, may require the minor to submit to urine testing upon the request of a peace officer or probation officer for the purpose of determining the presence of alcohol or drugs." The statute was enacted after the Legislature found, among other things, that the problem of delinquency should be addressed at the earliest possible time and that alcohol and/or drug use is a "precursor[] of serious criminality." (In re Kacy S. (1998) 68 Cal.App.4th 704, 710; see also People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 [even in adult cases, the probation department has the authority to require drugs testing in order to supervise compliance with a drug and alcohol-related probation condition].) The probation condition requiring appellant to submit to testing to determine compliance with another, valid probation condition, was proper.
The probation condition requiring appellant to submit to searches was similarly proper. The juvenile court imposed a probation condition, which appellant does not challenge, prohibiting him from using or possessing deadly weapons or explosive devices. The search condition both bore a relationship to the assault, in which he took part in a violent attack, and also sought to deter future criminality. "[A] warrantless search condition is intended and does enable a probation officer ' "to ascertain whether [the defendant] is complying with the terms of probation; to determine not only whether [he] disobeys the law, but also whether he obeys the law. Information obtained . . . would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation." '[Citation.]" (People v. Adams (1990) 224 Cal.App.3d 705, 712.) The search requirement was reasonably designed to monitor compliance with other valid probation conditions and was properly imposed.
Because we assumed, without deciding, that appellant did not forfeit his contentions by failing to object to the various probation conditions he challenges on appeal, we need not, and will not, address appellant's contention that he received ineffective assistance of counsel due to his trial counsel's failure to object.
--------
DISPOSITION
The judgment is modified by striking the probation condition that appellant "[b]e of good citizenship and good conduct." The phrase "perform well" in school shall be defined in accordance with this opinion. As modified, the judgment is affirmed.
McGuiness, P.J. We concur: Siggins, J. Jenkins, J.