Opinion
A147929
07-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH AARON YOUNG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CRF159278)
Defendant Joseph Aaron Young (Young) was convicted on two counts of meeting a minor with the intent to commit a sexual offense and one count each of child molestation and violating a court order. Young challenges two probation conditions imposed at his sentencing: one, prohibiting Young from leaving Del Norte County for any purpose without prior permission from his probation officer; and two, forbidding Young from associating with persons designated to him by his probation officer. We find Young's challenges to these conditions lack merit, and affirm.
STATEMENT OF THE CASE
An information filed on October 15, 2015, charged Young with three counts of meeting a minor with the intent to commit a sexual offense (Pen. Code, § 288.4, subd. (b)), which were alleged to have occurred on April 6, 2015, April 7, 2015, and July 12, 2015; child molestation (Pen. Code, § 647.6), on or about October 1, 2014, through September 1, 2015; and disobeying a court order (Pen. Code, § 166, subd. (a)(1)(4)) on or about July 12, 2015.
After a three-day trial, on February 11, 2016, the jury returned guilty verdicts on each count except the July 12, 2015 instance of meeting a minor with the intent to commit a sexual offense.
On March 10, 2016, the trial court suspended imposition of sentence and granted Young formal probation for three years, conditioned upon serving a term of 365 days in the county jail, lifetime registration as a sex offender pursuant to section 290 of the Penal Code, and other terms and probation conditions, including the two discussed below.
Young timely appealed.
STATEMENT OF FACTS
Young was a human resources manager and risk manager for the County of Del Norte and also coached the cheer teams at Del Norte High School and the Tsunami All Starz Gym. Young coached both teams during the 2014-2015 school year. During this time, Young was married and had two children, ages 8 and 12.
Young met J.R. in April 2014, when J.R.—then 16 years old—was trying out for the Del Norte High School cheer team. J.R. participated in both cheer teams during his senior year of high school, from the fall of 2014 to June of 2015.
Initials are used to protect victim privacy.
Young testified that, at first, J.R. was just "a number"—one of scores of teenagers who were trying out for the high school cheer team. Once Young began coaching J.R., however, the relationship evolved into a coach/athlete relationship and, then, a friendship. As J.R.'s family was unable to provide transportation for J.R., Young gave him rides. Young drove J.R. to cheer competitions in Humboldt, Santa Clara, and Orange Counties, as well as in the State of Oregon. Some of these competitions required overnight stays.
At one of these cheer competitions, J.R. and Young shared a hotel room, alone. Young testified that they did not yet have "strong" feelings for each other at that time, and nothing of a sexual nature occurred.
Their relationship developed further as J.R. sought to confide in Young about personal issues, including his sexuality and performance issues. By December 2014, it had evolved into feelings of romance. Although both Young and J.R. denied acting on their feelings until J.R. turned 18 in September 2015, a friend of J.R.'s testified that around December 2014, J.R. said he had sex with Young multiple times. That month, Young and J.R. exchanged text messages wherein J.R. complained about performance issues and Young advised him to think about oral sex in order to climax, then joked about eating J.R.'s ejaculate, and suggested they "hang out." Young denied he was suggesting that J.R. perform a sex act on him or that Young was trying to arouse himself, sexually; rather, he testified that he was providing advice and support that J.R. did not receive from his own parents.
These are the same text messages that Young's wife testified she discovered in early January.
In February 2015, the high school athletic director received an anonymous email alleging an improper relationship between Young and J.R. School officials held a meeting with Young and J.R.'s mother, D.R. Young did not respond to the accusations during the meeting. After the meeting, Young finished the cheer season and continued providing transportation for J.R., almost daily, which D.R. allowed.
In mid-March 2015, D.R. found a card on J.R.'s nightstand and some chocolates, in a red wrapper, on the other side of the room. The card, which was unsigned, said, among other things, "[Y]ou're much more to me than words could possibly say. . . . Every day . . . I can't wait to see you. I can't wait to see what our future holds. I love you." D.R. took a picture of the card and sent it to her sister-in-law, S.R., who was a correctional officer, and asked what she thought about it. S.R. was concerned and sent the picture of the card to a friend in the district attorney's office. At trial, D.R. tried to downplay her concern about the card; however, on cross-examination she admitted that the card suggested a relationship that was more than platonic.
J.R. testified that he took the card from Young's van without his permission. Young admitted that he authored the card, but said it was for someone else, whom he declined to name.
Texts between Young and a friend indicate that, by March 31, 2015, Young was aware that law enforcement had been investigating his relationship with J.R., and that Young had consulted an attorney. On April 8, search warrants were executed for J.R.'s and Young's phones. The police recovered an exchange of 502 text messages between Young and J.R. over the course of two days, April 6-7, 2015. These texts, which were introduced at trial, show the following:
On the morning of April 6, Young asked J.R. if he wanted to spend the night with him. Throughout the day, Young sent romantic messages, such as "I love you," "I miss you," "You're adorable," and he referred to J.R. as a "stay-at-home-wife," his "moon and stars," and "sugar butt." When J.R. texted that a friend was flirting with him, Young asked if he should be jealous; J.R. reassured him that he loved Young and only Young. More affectionate messages were exchanged. Young again asked J.R. to come stay the night, and J.R. agreed. At approximately 9:40 p.m., Young texted that he had arrived to pick up J.R.
The next morning, April 7, they exchanged texts thanking each other; Young said he enjoyed lying and talking to each other before falling asleep. J.R. complained of stomach pain, and Young said he wished he could rub J.R.'s stomach for him. They reminisced some more about the prior night, fantasized about a future together, and discussed whether to spend the night together again on April 7.
Subsequent text messages indicate that Young picked J.R. up just before 10:00 p.m. on April 7. No further messages were exchanged until 5:32 a.m. the next morning, April 8, at which point Young wrote, "You're amazing."
During the court proceedings related to this case, when J.R. was still 17 years old, Young was served with a criminal protective order (CPO) barring him from contact with J.R. J.R. was present in court at the hearing on the CPO and objected to the issuance of the order. The CPO was issued on June 30, 2015. Late on the night of July 12, less than two weeks after the CPO was issued and while it was still in effect, the police caught Young and J.R. together on a beach in Crescent City.
At trial, both Young and J.R. testified that they did not arrange to meet that night, nor did they intend to violate the CPO. Young testified that on the night of July 12, he had been unable to sleep due to stress. He went to South Beach, walked and sat awhile, went on a drive through town, and stopped at the beach "at the end of 5th Street" and parked. He testified that although he had not exchanged messages with J.R. that day or arranged a meeting with J.R. that night, J.R. showed up at the same beach only five or 10 minutes later. He testified that after he told J.R. to leave, J.R. walked toward the steps going back up to the parking area. Young started to walk toward a big rock on the beach ("because I just wanted [J.R.] to go") but, at that point, the police arrived. Although the arresting officer testified that she saw no one on the staircase, and observed Young running toward the rock, Young denied running and claimed he did not know that the police were trying to locate him.
J.R. testified that on the night of July 12, he chose to drive home from work along Highway 101 south in order to avoid police traffic, as he was driving without a license. Along the way, J.R. happened to see Young's van parked at a beach; he stopped, parked, and went down to the beach, looking for Young, whom he found sitting by a campfire. He testified that the police arrived before he had a chance to talk with Young. He also testified that Young ran, not walked, away when the police arrived.
On July 12, J.R. told the police he had been walking the beach with a coworker; however, the coworker testified that she was not with J.R. and said she refused to lie to the police for J.R.
Eventually, J.R. was cited for being out past curfew and starting an illegal bonfire; Young was arrested for violating the CPO.
The criminal complaint was amended to add a third count for contact with a minor with the intent to commit a sexual offense and a count for disobeying a court order.
At trial, J.R. repeatedly denied that he and Young had engaged in any sexually intimate acts before he turned 18 (in early September 2015). Young testified that the relationship did not turn physical until October 2015, on a trip to Disneyland; he also testified that it did not work out well because they were physically incompatible. J.R. testified that, by the time of trial, they remained close but were not intimate, and he did not foresee that they would have an intimate relationship in the future.
However, by the time of Young's sentencing less than one month later, Young and J.R. admitted they were in a relationship. J.R. testified that they were in a "safe and stable relationship" that had formed since his 18th birthday, and said he hoped they would build a life, family and future together. Young testified similarly.
At the sentencing hearing, the court took additional evidence, which is discussed in our analysis, below.
DISCUSSION
Young challenges two probation conditions. First, he contends the requirement that he "shall not leave the county without permission of the Probation Officer" (the travel restriction) is unreasonable and unconstitutionally overbroad. Second, he challenges the condition requiring him to refrain from associating with persons designated by his probation officer, arguing it is unconstitutionally overbroad and an improper delegation of the trial court's authority to set probation conditions.
"The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "Generally, '[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 . . . ." [Citation.]' " (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, at p. 380.) Thus, we review the reasonableness of probation conditions under the abuse of discretion standard. (People v. Moran (2016) 1 Cal.5th 398, 403 (Moran).) "That is, a reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable. [Citation.]" (Ibid.)
By contrast, whether a probation condition is unconstitutionally vague or overbroad presents a question of law, which we review de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143; In re J.H. (2007) 158 Cal.App.4th 174, 183.)
A. The condition prohibiting Young from leaving Del Norte County without the permission of his probation officer is neither unreasonable nor unconstitutionally overbroad.
Young's first contention, that the travel restriction is unreasonable under Lent, supra, 15 Cal.3d 481, lacks merit. There is substantial evidence that the crimes for which Young was convicted occurred, at least in part, outside of Del Norte County. During the period of alleged molestation, Young and J.R. traveled together to several cheer competitions outside of Del Norte County, where they stayed in hotel rooms together overnight. Thus, the requirement that Young obtain his probation officer's prior permission before leaving the county has a reasonable " 'relationship to the crime of which the offender was convicted . . . .' " (Id. at p. 486.)
Although Young contends that no sexual activity occurred on the out-of-county excursions, the jury reasonably could have rejected his testimony as untruthful. In any event, sexual relations are not required to prove child molestation. (People v. Lopez (1998) 19 Cal.4th 282, 289 [Penal Code section 647.6, subdivision (a) does not require a touching].)
Even if that were not the case, the travel restriction reasonably relates to preventing future criminality, as the condition is "useful for effective probation supervision." (Olguin, supra, 45 Cal.4th at p. 380.) Although the Court found Young was unlikely to be a repeat sexual offender, Young was convicted of willfully violating a court order while these proceedings were pending. Moreover, at sentencing, the court observed that Young's crime involved the abuse of a position of trust, that his trial testimony was "fantastical," and that, even after convicted, he refused to acknowledge wrongdoing. The court's conclusion that Young was neither trustworthy nor law-abiding suggests that he would require extensive rehabilitation. In addition, the travel restriction was one of several designed to ensure close and continuing personal supervision of a defendant who, the court found, could not be trusted to follow court orders. In other words, it was one component of a broader supervisory framework designed to rehabilitate Young and prevent future criminal conduct, and is thus directly related to his rehabilitative needs. Thus, there is ample evidence to support the conclusion that the travel restriction was squarely "directed toward [Young's] rehabilitation[.]" (In re White (1979) 97 Cal.App.3d 141, 151 (White).)
These include not only the travel restriction, but Young's obligation to keep the probation department informed of his address and current contact information; to report to the court whenever ordered to do so; to report monthly to the probation officer; to report any contact with law enforcement, regardless of whether the contact involved potential wrongdoing by Young; to obtain the probation officer's approval of his residence and employment; to report any change in contact information within two business days; and to register as a sex offender.
Young's reliance on People v. Soto (2016) 245 Cal.App.4th 1219 is misplaced. In Soto, the court found that a probation condition requiring the defendant to obtain permission from his probation officer or an order from the court prior to changing his residence from Monterey County was invalid under Lent because the record did not support the trial court's conclusion that the condition was reasonably related to defendant's crimes, driving under the influence and driving with a suspended license. (Id. at p. 1228.) The court observed that there was nothing in the record to indicate that defendant's living situation contributed to his crime or would contribute to his future criminality; thus, the condition did not have any relation to his crime or to future criminality. (Ibid.) Thus, the court found the restriction's relationship to defendant's future criminal conduct to be " 'remote, attenuated, tangential, or diaphanous . . . .' [Citation.]" (Id. at p. 1227.) Here, by contrast, as the People assert, "it was reasonable to impose a condition for the purpose of assisting the probation officer in supervising [Young] because the facts demonstrated that [Young] had traveled out of county to facilitate his illicit activity and had already intentionally subverted a court order."
Unlike the child molestation crime in this case, moreover, the crimes in Soto occurred entirely within the county and had no connection with intra- or interstate travel. (People v. Soto, supra, 245 Cal.App.4th at pp. 1226-1228.)
Notably, more recent cases have upheld probation conditions requiring a defendant to obtain a probation officer's prior approval before changing his or her residence. (See In re G.B. (2018) 24 Cal.App.5th 464, 469-471; People v. Stapleton (2017) 9 Cal.App.5th 989, 996 (Stapleton); People v. Arevalo (2018) 19 Cal.App.5th 652, 657-658.)
Young also challenges the travel restriction as unconstitutionally overbroad, on the grounds that it is not specifically tailored to Young's rehabilitative needs. As our Supreme Court has recently observed, "Imposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release." (Moran, supra, 1 Cal.5th at p. 406.) "Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (Ibid.) Thus, a probation condition may reasonably restrict the constitutional rights to travel and freedom of association, so long as it reasonably relates to reformation and rehabilitation. (Stapleton, supra, 9 Cal.App.5th at p. 995.) If there exist more narrowly drawn alternatives that correlate more closely with the rehabilitative purpose contemplated, they must be employed. (White, supra, 97 Cal.App.3d at p. 150.) In evaluating the "closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights" we must "bear[] in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
We have already established that the travel restriction has a factual nexus with Young's conviction and serves legitimate rehabilitative purposes. (See pp. 7-9, ante.) The authorities cited by Young do not demonstrate that the permission-based travel ban in this case is unduly sweeping. White involved far more onerous conditions: an outright travel ban (not a permission-based ban) covering an area where the probationer then resided (forcing her to move), where her friends and relatives also lived, which included destinations that she frequently took her children and restaurants she patronized, as well as the Greyhound station, preventing her from traveling. (White, supra, 97 Cal.App.3d at pp. 144-147.) The travel restriction in White was held to be unconstitutionally overbroad because of its scope: It captured (and thus burdened) far more legitimate, legal activity than potential illegal (prostitution) activity. (Ibid.; see People v. Smith (2007) 152 Cal.App.4th 1245, 1249-1252 (Smith) [blanket prohibition on registered sex offenders leaving the county for any purpose].) If the travel restriction were modified to include specific limitations (such as time of day, purpose of presence in the area), the condition could achieve the same rehabilitative purposes while reducing the burden on the defendant's right to travel. (White, at pp. 150-151.)
In contrast, the burdens on Young are comparatively minor. He is not subject to an outright travel ban; he is only prohibited from leaving the County of Del Norte without prior permission. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 1195 [condition requiring defendant to obtain written permission from probation officer before leaving state did not bar his ability to travel altogether but only required that he first obtain written permission before doing so].) He has not pointed to any specific or regular need to travel outside of the county, or identified any anticipated difficulties with obtaining permission for the occasional shopping trip or excursion with his children.
Unlike the defendant in Smith, Young has not shown that his probation officer or the trial court refused to grant reasonable requests for permission to travel. Absent some evidence to the contrary, we "presume [Young's] probation officer will not withhold approval for irrational or capricious reasons." (Olguin, supra, 45 Cal.4th at p. 383.)
Nor did Young argue, below or here, that the travel restriction could be modified in such a way as to reduce any infringement on his right to travel, while still serving the intended rehabilitative function, nor does he propose any specific modifications. (White, supra, 97 Cal.App.3d at p. 150 [if less burdensome alternatives are available, they must be used].) Under these circumstances, the trial court could reasonably conclude that any burden imposed by the permission requirement constituted a minor burden on his constitutional rights which was reasonably necessary to carry out the rehabilitative purpose of the condition.
Young mainly argues that the court failed to consider Young's personal circumstances or tailor the travel provision to his supervisory needs, but instead imposed the condition as a matter of general policy. Young points to the following statement by the court at sentencing: "I'm going to order [Young] just like I would anybody else who is on formal probation. He does not leave the State of California without getting a pass." Young would "need to get permission any time he leaves the county."
Young has not shown how the court's supposed subjective motivations or beliefs should affect our independent review of the correlation between the challenged probation condition and Young's rehabilitative needs. (In re Shaun R., supra, 188 Cal.App.4th at p. 1143 [constitutional question reviewed de novo]; In re J.H., supra, 158 Cal.App.4th at p. 183 [same].) In construing a probation term, we must give it "the meaning that would appear to a reasonable, objective reader." (People v. Bravo (1987) 43 Cal.3d 600, 606.) Then we must determine whether the term (objectively construed) reasonably correlates with its intended rehabilitative purpose. (In re E.O., supra, 188 Cal.App.4th at p. 1153 ["overbreadth challenge" concerns "the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights"].) Young has cited no authority for the proposition that, in conducting this review, we must defer to the trial court's expressed intentions or take into account the trial court's subjective views on the legal question presented.
Young also argues that the trial court erroneously failed to take into account his individual rehabilitative needs. We disagree. In a facial challenge to the constitutionality of a probation condition, it is not clear that a court is required to consider the individual defendant's rehabilitative needs. (Stapleton, supra, 9 Cal.App.5th at pp. 993-994 [distinguishing between degree of specificity required in facial versus "as applied" challenge to probation condition as constitutionally overbroad].) It may be sufficient to consider "the nature of the case and the goals and needs of probation in general," considering, generally, the type of crime involved. (Ibid.) In any event, the record reflects that the trial court did consider Young's individual circumstances and rehabilitative needs in fashioning Young's probation conditions: As we have noted, at Young's sentencing, the trial court made several findings regarding Young's conduct and the circumstances of this case which, in its view, warranted close and continuing supervision of Young during his probation period and support the imposition of a permission-based travel restriction.
The court's statement that it routinely imposes a travel restriction on probationers appears to reflect its unremarkable view that travel restrictions are ubiquitous because they are necessary and can be effective in many cases. (Moran, supra, 1 Cal.5th at p. 406 [stating that such restrictions are common "as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release"].) We find that this is one of those cases, in that the travel restriction furthers a legitimate rehabilitative function directly related to the nature of Young's conviction and places reasonable and incidental burdens on Young's constitutional rights. It therefore passes constitutional muster.
B. The condition prohibiting Young from associating with persons designated by the probation officer is not unconstitutionally overbroad.
Young also appeals the probation condition barring him from associating with persons designated to him by the probation officer. Young argues, first, that the restriction on his right of association is constitutionally overbroad, in that it fails to identify a specific class of person with whom he is forbidden to associate; thus, it is not appropriately tailored to the state's interest in reforming and rehabilitating Young. (People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil).) Second, he argues that, as drafted, the provision gives the probation officer unbounded authority to control the persons with whom Young may not associate and thus, to impose restrictions which are completely unrelated to the goals of his rehabilitation. Thus, it constitutes an impermissible delegation of the trial court's discretion to his probation officer. (See In re Pedro Q. (1989) 209 Cal.App.3d 1368 (Pedro Q.) [courts may not delegate the exercise of their discretion to probation officers]; Pen. Code, § 1203.1.)
Probation condition number 7, in its entirety, reads as follows: Young shall "[r]efrain from associating with persons known to you to be engaged in criminal activities, or persons designated to you by the Probation Officer." (Italics added.) Young objects to the italicized phrase only. Read in isolation, the italicized phrase bears a close resemblance to the restriction held to be constitutionally infirm in O'Neil, supra, 165 Cal.App.4th 1351. In that case, however, the associational restriction was "entirely open-ended." (Id. at p. 1359.) (It did not follow a more specific ban on fraternizing with persons engaged in criminal activity.) It read, " 'You shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.' " (Id. at p. 1354.) The court held that the probation condition, which "would allow the probation officer to banish defendant by forbidding contact with his family and close friends," was overbroad and permitted an unconstitutional infringement on defendant's right of association. (Id. at p. 1358.)
As the People point out, however, we must construe the associational restriction in context. " 'When interpreting a probation condition, we rely on "context and common sense . . . . [Citation.] Probation terms must be 'given "the meaning[s] that would appear to a reasonable, objective reader" ' [citation], and interpreted in context and with the use of common sense [citation]." (People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1129 (Rhinehart); see People v. Holzmann (2018) 18 Cal.App.5th 1241, 1244 [requiring consideration of context in considering challenge to probation condition as unconstitutionally vague].) For example, in Rhinehart, the court rejected a challenge to the "good conduct" part of a probation condition ordering defendant to " '[b]e of good conduct and obey all laws,' " finding that the former part of the phrase must be interpreted with its conjunctive phrase " 'and obey all laws.' " (20 Cal.App.5th at p. 1129 ["Applying context and common sense, the good behavior condition simply requires [defendant] be a law-abiding citizen"].)
This principle applies squarely here. Unlike O'Neil, we are not faced with an open-ended associational restriction devoid of contextual guidance. The associational condition is comprised of two parts: an express ban on associating with persons known to Young to be engaged in criminal activity, followed by a prohibition on associating with persons "designated" by the probation officer. The latter prohibition must be read in light of the preceding clause, which bars association with persons engaged in criminal activities. (See, e.g., Rhinehart, supra, 20 Cal.App.5th at p. 1129.) So construed, this provision allows Young's probation officer to forbid Young from associating with (i.e., to "designate") persons engaged in criminal activity; reasonably interpreted, it does not give the probation officer unfettered discretion to promulgate associational restrictions unrelated to criminal conduct, which would have no relation to the preceding clause and no relation to the court's rehabilitative objectives. (Cf. Pedro Q., supra, 209 Cal.App.3d at p. 1373 [probation officer may not independently impose an altogether new, nonderivative probation term which does not flow logically from a general term].) This construction ensures that the challenged condition insulates a probationer from sources of temptation to join criminal activity, and no more, and is thus appropriately tailored to the state's rehabilitative aims. (See, e.g., People v. Robinson (1988) 199 Cal.App.3d 816, 818 [finding that prohibition on "associating with persons having a known criminal record" imposed "a control over defendant which would assist her in successfully completing probation" and was not unconstitutionally overbroad]; People v. Wardlow (1991) 227 Cal.App.3d 360, 367 [term prohibiting contact with family members known to have committed the same crime was not unconstitutionally overbroad].)
Finally, Young contends that the associational restriction impermissibly delegates to the probation officer discretion to set probation conditions, which is the province of the trial court. But as we have already explained, the challenged provision only allows the probation officer to "designate[]" for nonassociation those persons who are "engaged in criminal activities[.]" As such, Young's contention that the provision gives his probation officer carte blanche to bar him from associating with any persons, regardless of whether they are engaged in criminal activity, lacks merit. So construed, we find that the associational restriction is neither constitutionally overbroad nor an impermissible delegation of the trial court's authority to fashion probation conditions.
On reply, Young argues for the first time that the phrase "engaged in criminal activities" is unconstitutionally vague and overbroad. Young failed to raise this issue in his opening brief. Furthermore, he cites no legal authority to support his argument. We therefore treat it as waived. (Children's Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777 [points not raised in opening brief may be treated as waived on appeal]; People v. Morse (1993) 21 Cal.App.4th 259, 275 [argument not supported by legal authorities may be treated as waived].)
DISPOSITION
The judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------