In re Alan A.

Filed 10/13/06 In re Alan A. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross, J. Robert Jibson and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Alan A., a minor, admitted an allegation, contained in a juvenile wardship petition (Welf. & Inst. Code, § 602),^[1] that he committed a misdemeanor violation of Penal Code section 12101, subdivision (a)(1) (possession of a firearm by a minor). The juvenile court readjudged appellant a ward of the court;^[2] and ordered that he remain on probation. As conditions of probation, the court ordered, inter alia, that appellant be committed to the Elkhorn “boot camp” facility (boot camp) for a period not to exceed one year and that he “[n]ot . . . use or possess narcotics or any other controlled substances or related paraphernalia and to stay away from places users congregated.”^[3] The court declared appellant’s maximum period of physical confinement (MPPC) to be 16 months, consisting of one year for the instant offense and four months for a misdemeanor violation of Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon or by means of force likely to cause great bodily injury), adjudicated in appellant’s previous wardship proceeding.

On appeal, appellant contends (1) the court erroneously failed to exercise its discretion in setting the MPPC, and (2) the drug condition is impermissibly overbroad. We will modify the drug condition and in all other respects affirm.

DISCUSSION

The Drug Condition

Appellant contends the drug condition is impermissibly overbroad because (1) its proscriptions extend beyond the use and possession of controlled substances that are illegal to possess and use, and also proscribes the possession and use of controlled substances which are not illegal to possess and use, such as medicines prescribed by a physician, and (2) it orders appellant to stay away not only from places frequented by illegal drug users, but also places, such as hospitals, that are frequented by persons who use drugs legally. Appellant argues that this court should order the drug condition modified to remedy these defects, notwithstanding that he did not raise these claims below. The People concede these points. We agree.

Section 730, subdivision (b) provides, in relevant part: “The [juvenile] court may impose and require any and all reasonable conditions [of probation] that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” The drug condition as stated by the court is not reasonable within the meaning of this statute because the condition’s proscriptions against the legal possession of controlled substances and narcotics and its direction that appellant stay away from places where users of such substances congregate are not reasonably related to either the offenses of which appellant has been adjudicated or to the prevention of future criminality. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500, disapproved on other grounds, In re Sade C. (1996) 13 Cal.4th 952, 983, fn. 13 [condition of probation which “ ‘relates to conduct which is not in itself criminal’ “ is invalid if the condition “ ‘has no relationship’ “ to the offense(s) of which the offender has been adjudicated and “ ‘ “requires or forbids conduct which is not reasonably related to future criminality” ‘ “].) And because appellant’s challenge to the drug condition presents a pure question of law, appellant is not precluded from raising this claim for the first time on appeal. (Cf. In re Justin S. (2001) 93 Cal.App.4th 811, 815 [overbreadth challenge to juvenile probation condition may be raised for first time on appeal].) Accordingly, we will order the drug condition modified to specify that appellant is not to illegally posses narcotics or any other controlled substances and is to stay away from places known to the minor to be places where persons who illegally use narcotics and other controlled substances congregate.

The MPPC

Section 726 provides that when the juvenile court orders a minor removed from the custody of his or her parents or guardian, the juvenile court must specify that the minor “may not be held in physical confinement” longer than the “maximum term of imprisonment which could be imposed on an adult convicted of the same offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (§ 726, subd. (c).) “ ‘Physical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home . . . , or in any institution operated by the Youth Authority.”^[4] (Ibid.) Where the court elects to aggregate confinement periods from multiple offenses, the maximum term under section 726 “must be specified in accordance with the formula set forth in subdivision (a) of Penal Code section 1170.1, i.e., the sum of the ‘principal term’ (the longest term imposed for any of the offenses) and ‘subordinate terms’ (one-third of the middle term imposed for each other offense),” with the exception that where, as here, at least one of the offenses is a misdemeanor, subordinate misdemeanor terms are calculated as one-third of the maximum term for such offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536-538.)

The 16-month MPPC declared in the instant case conforms to the foregoing principles, and generally, under section 726, the juvenile court does not have discretion to impose a lesser MPPC. (§ 726; In re James A. (1980) 101 Cal.App.3d 332, 336-338.) Appellant argues, however, that section 731, subdivision (b) (section 731(b)) confers such discretion upon the juvenile court. He argues further that the court failed to exercise this discretion and therefore remand is required. We disagree.

Appellant relies on an amendment to section 731 which became effective January 1, 2004, and which provides as follows: “A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum of adult confinement as determined pursuant to this section . . . .” (§ 731(b), italics added.)

There is no dispute section 731(b) gives the juvenile court the discretion in any case in which it commits a minor to the CYA to fix the MPPC at less than the adult statutory maximum, “based upon the facts and circumstances of the matter.” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1538; accord, In re Alex N. (2005) 132 Cal.App.4th 18, 26; In re Sean W. (2005) 127 Cal.App.4th 1177, 1184-1186; In re Jacob J. (2005) 130 Cal.App.4th 429.) However, the discretion conferred by section 731(b) applies only in cases of CYA commitment. (In re Geneva C., supra, 141 Cal.App.4th 754.) Here, however, where a minor is removed from the custody of his parents or guardian but not committed to the CYA, section 726 controls, and, as indicated above, under that statute the court did not have discretion to set the MPPC at less than 16 months.

Appellant also argues that if the juvenile court’s discretion under section 731(b) to declare an MPPC of less than the adult maximum does not extend to the situation in which the court orders a less restrictive placement which, like appellant’s commitment to boot camp, nonetheless constitutes “ ‘[p]hysical confinement’ “ (§ 726, subd. (c)), the statutory scheme violates appellant’s right to equal protection of the laws under the United States and California Constitutions because it treats differently two “similarly situated” groups, viz. “those committed to CYA and those committed to non-CYA institutions.” Again, we disagree.

An equal protection challenge requires a showing the state has treated two or more similarly situated groups in an unequal manner. ( In re Eric J., supra, 25 Cal.3d at pp. 530-531.) “The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)

Appellant fails to demonstrate his boot camp commitment places him in a sufficiently similar position with a juvenile committed to the CYA. The twin goals of the juvenile justice system are to (1) protect the public and (2) “protect . . . the youthful offender” by providing “correction and rehabilitation . . . .” (In re Kasaundra D. (2004) 121 Cal.App.4th 533, 539.) With respect to the latter goal, minors committed to the CYA stand in a different position than minors placed in less restrictive placements because with respect to the latter group, after disposition the juvenile court continues to supervise the minor’s progress and may “make all reasonable orders for the conduct of the ward” (§ 730, subd. (b)), whereas CYA commitment “deprives the juvenile court of any authority to directly supervise the juvenile” (In re Ronny P. (2004) 117 Cal.App.4th 1204, 1208). Therefore, the two groups are not similarly situated with respect to the purpose of the law in question. Accordingly, appellant’s equal protection claim fails.

DISPOSITION

The drug condition is modified to provide that appellant is not to illegally possess narcotics or any other controlled substances or related paraphernalia and is to stay away from places known to him to be places where persons who illegally use narcotics and other controlled substances congregate. As modified, the judgment is affirmed.

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^* Before Harris, Acting P.J., Levy, J., and Cornell, J.

^[1] Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] Appellant was initially adjudged a ward of the juvenile court in 2005, at which time he was placed on probation.

^[3] We refer to the latter condition of probation as the drug condition.

^[4] The California Youth Authority (CYA) is now known as the Division of Juvenile Justice (Gov. Code, §§ 12838, 12838.5).” (In re Geneva C. (2006) 141 Cal. App. 4th 754, 756, fn. 2.) However, we will do as statutory and decisional law continues to do and refer to the CYA.