Opinion
H051543
09-26-2024
IN re W.B., a Person Coming Under the Juvenile Court Law. v. W.B., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 22JV45659A
BAMATTRE-MANOUKIAN, ACTING P. J.
I. INTRODUCTION
The juvenile court found that the minor, W.B., committed four counts of a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)) and that he understood the wrongfulness of his conduct at the time the offenses were committed (id., § 26, subd. One). The court declared the minor a ward of the court, placed him under the supervision of a probation officer, and ordered that the minor have no contact with the victim.
On appeal, the minor's appointed counsel initially filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that stated the case and facts, but raised no issue. We notified the minor of his right to submit written argument on his own behalf within 30 days. That period elapsed and we received no response from the minor.
This court requested supplemental briefing regarding a probation condition requiring the "minor and his parent [to] participate in a counseling or education program as determined by the Probation Officer." For reasons that we will explain, we determine that the condition is an overbroad delegation of judicial authority to the probation officer and that remand is required for further specification by the juvenile court. We will also order correction of clerical error in the restraining order protecting the victim.
II. BACKGROUND
On July 7, 2022, a Welfare and Institutions Code section 602 petition was filed alleging that the minor, then age 16, committed six counts of a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). An amended section 602 petition was subsequently filed on September 5, 2023, alleging that the minor committed four counts of a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). The counts allegedly took place between approximately October 3, 2017 and August 31, 2020, when the minor was 12 to 14 years old.
All further statutory references are to Welfare and Institutions Code unless otherwise indicated.
A contested jurisdictional hearing was held in September 2023. The juvenile court ruled on motions in limine by the parties.
The victim, who was in high school at the time of the jurisdictional hearing, testified that she had been friends with the minor's younger siblings and that her mother and the minor's mother had also been friends. The minor was bigger and three years older than the victim. For about four years, beginning when the victim was in elementary school and until late 2019 or early 2020 when the victim was in sixth grade, the minor touched her approximately 20 times when she was at his house. Specifically, the minor squeezed her "boobs" or her chest with his hand, "put his penis in [her] butt hole," touched her vagina with his hand, and put his penis in her vagina. The touching also occurred one time at her house when the minor touched her "boobs" and put his penis in her vagina. The victim was scared that something would happen if she did not comply. She "believe[d] [the minor] told" her not to tell anybody. The victim made a partial disclosure about the touching in a writing to her mother. After she made a further disclosure to a mental health program, the police came to her house.
When the minor was younger, between four and six years old, his father had conversations with him about the different body parts of girls and boys, and one or both parents talked to the minor about "private areas."
A few months after the minor turned nine years old, in or about early 2015, law enforcement investigated inappropriate sexual conduct by the minor. The minor indicated that he knew what he was doing was wrong. The minor completed a program to address the behavior.
At the time of the instant incidents, the minor's parents, who never lived together, were involved in a custody battle, and the minor's mother eventually lost custody of the minor.
At the close of the prosecutor's evidence, the minor moved to dismiss the case under section 701.1. The juvenile court reserved ruling on the motion and eventually denied the motion.
The minor testified in his own behalf. According to the minor, when he lived with his mother, she manipulated him and threatened him to make him lie. For example, she wrote a statement for him to read to his therapist as if he (the minor) had written it, and which falsely accused his father of molesting him. Before the minor met the victim, he knew that he should not touch a person's vagina, breasts, or buttocks. The minor testified that the current allegations against him were not true. He testified that he was not mad at the victim because he had "had to do the same thing," meaning "make allegations that weren't true."
The minor's father testified that the minor's allegations against him affected his custody of the minor. After the minor recanted the allegations, his father obtained full custody of the minor.
After the close of evidence, the prosecutor argued that the minor molested the victim repeatedly over several years, and that the minor, who was between 12 and 14 years old at the time of the alleged offenses, knew that he should not touch her private parts. The minor's counsel argued that the minor's mother had a pattern of using children to gain legal advantage over the minor's father in the custody dispute, and counsel suggested that the minor's mother was behind the victim's allegations as the mother's custody of the minor was in jeopardy at the time.
The juvenile court characterized the minor's theory as "preposterous" and determined that there was "no evidence to back it up." The court found by clear and convincing evidence that the minor understood the wrongfulness of his conduct at the time he committed the offenses (Pen. Code, § 26, subd. One). The court further found that the evidence presented at the jurisdictional hearing was sufficient beyond a reasonable doubt to sustain the petition as to all four counts. The court determined that all counts were felonies.
At the dispositional hearing on October 16, 2023, the juvenile court adjudged the minor a ward of the court and returned him to his parent's custody on probation under the supervision of the probation officer. The juvenile court adopted several terms and conditions of probation that had been recommended by the probation officer, including that the "minor and his parent participate in a counseling or education program as determined by the Probation Officer," that the "minor and his parent be ordered to enroll in and complete a sexual behavioral therapy program as determined by the Probation Officer," and that the minor have no contact with the victim. The court signed a three-year restraining order.
On October 27, 2023, the minor filed a notice of appeal.
III. DISCUSSION
After reviewing the record pursuant to Wende, supra, 25 Cal.3d 436, we requested supplemental briefing regarding the following issues: (1) whether the probation condition requiring the minor and his parent to "participate in a counseling or education program as determined by the Probation Officer" is an overbroad delegation of judicial authority; and (2) if so, whether this court should remand the matter with directions to the juvenile court to specify the type of counseling or education program that the minor and his parent are required to attend.
In his supplemental brief, the minor contends that the probation condition violates the separation of powers doctrine because it delegates to the probation officer the determination of the type of counseling or education program the minor must participate in, which could include a residential program. The minor argues that his claim is not forfeited even though he did not object below and that the matter should be remanded to the juvenile court.
The Attorney General contends that the minor has forfeited the claim, that the probation condition is not an improper delegation of judicial authority, and that if this court concludes otherwise the matter should be remanded for the juvenile court to specify the type of counseling or education program.
Although the minor did not object to the probation condition below, we may consider a claim that the condition is an unconstitutional delegation of judicial authority where, as here, the breadth of the delegation presents a pure question of law. (See People v. Smith (2022) 79 Cal.App.5th 897, 901 (Smith).) We review this question of law de novo. (Id. at p. 902.)
"When a minor has been adjudged a ward of the juvenile court because of delinquency under section 602 and placed under the supervision of a probation officer, the 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.' [Citation.]" (In re D.N. (2022) 14 Cal.5th 202, 206.) Section 729.2 requires various probation conditions "except in any case in which the court makes a finding and states on the record its reasons that that condition would be inappropriate." In the absence of such a finding, and as relevant here, subdivision (b) of section 729.2 mandates a probation condition that "[r]equire[s] the parents . . . of the minor to participate with the minor in a counseling or education program, including, but not limited to, parent education and parenting programs operated by community colleges, school districts, or other appropriate agencies designated by the court or the probation department."
At the same time, based on the separation of powers doctrine, it has been stated that "judicial powers may not be delegated to nonjudicial officers. [Citation.] While the probation officer may properly specify the details necessary to effectuate the court's probation conditions, it is the court's duty to determine the nature of the requirements imposed on the probationer. [Citations.]" (Smith, supra, 79 Cal.App.5th at p. 902.) The "general rule [is] that a court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer." (In re Victor L. (2010) 182 Cal.App.4th 902, 919 (Victor L.).)
In this case, the probation condition requires that the "minor and his parent participate in a counseling or education program as determined by the Probation Officer." It appears that this condition, which was recommended by the probation department, was intended to ensure the juvenile court's compliance with the requirements of section 729.2, subdivision (b). However, we do not believe that section 729.2 requires or allows the imposition of a probation condition that simply recites the text of subdivision (b) without the juvenile court actually designating the type of counseling or education program that the minor and his parent must participate in. (See In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372 [a "probation officer may recommend probation terms, but it is the court's responsibility to tailor the conditions specifically to each minor"].)
As written, the probation condition grants the probation officer complete discretion regarding the type of counseling or education program that the minor and his parent must participate in. This probation condition stands in contrast to People v. Penoli (1996) 46 Cal.App.4th 298, in which the probation condition specified the type of program by authorizing the probation officer to select a "residential drug treatment program." (Id. at p. 301, italics added; see id. at p. 302.) In Smith, supra, 79 Cal.App.5th 897, an appellate court likewise rejected a claim that a probation condition was an improper delegation of authority where the condition required the defendant" 'to participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer.'" (Id. at p. 902.) The appellate court explained that "[t]he treatment condition must be considered alongside the assessment condition, which provides that [the defendant] must 'complete a drug and alcohol assessment and follow through with treatment as directed by probation.'" (Id. at pp. 902-903, italics added.) The court concluded that the probation condition requiring treatment or another program thus "mandated treatment for substance abuse based on the assessment while leaving the probation officer to oversee the details." (Id. at p. 903, italics added.) In contrast, the condition at issue in the instant case does not specify the type - that is, the subject matter - of the counseling or education program that the minor and his parent must participate in, and instead delegates that decision to be "determined by the Probation Officer." We conclude that this probation condition authorizing the probation officer to determine the type of "counseling or education program" constitutes an improper delegation of judicial decision making authority.
We note that the juvenile court ordered a separate probation condition requiring the minor and his parent "to enroll in and complete a sexual behavioral therapy program as determined by the Probation Officer." (Italics added.) This condition falls within the court's statutory authority to order a counseling or education program (see § 729.2, subd. (b)) while also complies with the court's obligation to identify "the basic policy of a condition of probation, leaving specification of the details to the probation officer" (Victor L., supra, 182 Cal.App.4th at p. 919). Regarding the probation condition requiring the minor and his parent to "participate in a counseling or education program as determined by the Probation Officer," we will remand the matter for the juvenile court to specify the type of counseling or education program.
Lastly, on our own motion, we augment the record on appeal to include the three-year restraining order, which was signed and filed by the juvenile court at the dispositional hearing on October 16, 2023. The terms and conditions of the minor's probation include that he have no contact with the victim. However, the restraining order in section 13a (Judicial Council form JV-265 (Jan. 1, 2023)), which requires a checkmark in the proper box to identify the person that defendant is prohibited from contacting, incorrectly requires the minor to have no contact with other (unidentified) "persons" rather than no contact with the victim. We will order the restraining order corrected accordingly.
IV. DISPOSITION
The dispositional order is reversed. The matter is remanded with directions to the juvenile court to:
(1) Specify in probation condition No. 9 the type of counseling or education program the minor and his parent are required to attend, and
(2) Mark the first box in section 13a of the restraining order (Judicial Council form JV-265 (Jan. 1, 2023)), and delete the mark in the second box of section 13a, to reflect that the minor must have no contact with the victim.
WE CONCUR: DANNER, J., WILSON, J.