In re Carlos H.

Filed 10/4/06 In re Carlos H. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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Following a contested hearing, the juvenile court found that Carlos H., a minor and ward of the juvenile court based upon several previously sustained petitions, had committed robbery (Pen. Code, § 211)^[1] and misdemeanor battery (§ 242). He was continued a ward and placed on probation on the condition, among others, that he serve 180 days in the San Joaquin County Camp, in addition to 44 days’ credit for time served.

On appeal, the minor contends that several of his probation conditions must be struck or modified; the juvenile court failed to exercise discretion when setting the maximum term of confinement; and the dispositional minute order must be corrected to reflect the oral judgment. We shall affirm with orders for the juvenile court to correct the dispositional minute order to reflect its oral judgment.

FACTUAL BACKGROUND

The robbery and misdemeanor battery charges resulted from an incident on June 13, 2005, when two young Hispanic men beat a male victim for 15 to 20 seconds, took his CD player, and tried to take his wallet. The minor was recognized by the victim as one of his attackers. The juvenile court had previously sustained petitions against the minor for arson (§ 451, subd. (b)) in 2002, misdemeanor battery (§ 242) and resisting and obstructing a peace officer (§ 148, subd. (a)(1)) in 2003, and committing a battery on school property (§ 243.2, subd. (a)) in 2004.

DISCUSSION

I. Conditions of Probation

The minor contends several probation conditions imposed by the juvenile court must be modified or stricken. On appeal, we review probation conditions for abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 969 (Abdirahman S.).) “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 . . . .’” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).)

The minor did not object to the probation conditions imposed by the juvenile court. If not first brought to the attention of the sentencing court, a probationer forfeits any claim a condition was factually inappropriate based on the factors set forth in Lent. (People v. Welch (1993) 5 Cal.4th 228, 233-237.) Forfeiture also applies to challenges to probation conditions imposed by the juvenile court. (In re Justin S. (2001) 93 Cal.App.4th 811, 814 (Justin S.); Abdirahman S., supra, 58 Cal.App.4th at p. 971.)

The minor recognizes his failure to object, but suggests we should follow Justin S. where the juvenile court found an exception to the forfeiture rule when the challenge on appeal raised a pure question of law. (Justin S., supra, 93 Cal.App.4th at p. 815.) This issue is before the Supreme Court in In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980.

“The California Supreme Court has repeatedly held that constitutional objections must be interposed in order to preserve such contentions on appeal.” (In re Josue S. (1999) 72 Cal.App.4th 168, 170.) In People v. Gardineer (2000) 79 Cal.App.4th 148 (Gardineer), the defendant argued on appeal that the probation condition to “observe good conduct” was unconstitutionally vague, but never objected to the condition when it was imposed. (Id. at p. 151.) We noted in Gardineer the reasons the Welch forfeiture rule, “--the discouragement of invalid probation conditions and the reduction of costly appeals--appl[ies] fully to claims that probation conditions are unlawfully vague . . . .” (Gardineer, at p. 152.) Therefore, we held “[a] defendant who contends a condition of probation is constitutionally flawed still has an obligation to object to the condition on that basis in the trial court in order to preserve the claim on appeal.” (Id. at p. 151.) Finding Gardineer the better reasoned opinion, we decline to follow Justin S.

The minor attacks four probation conditions. The dispositional order provides, “The minor shall not obtain any new tattoos, brands, burns, piercings, or voluntary scarring, and shall permit photographing of all tattoos or similar markings that exist to the date of this order.” Relying on In re Antonio C. (2000) 83 Cal.App.4th 1029 (Antonio C.), the minor claims the prohibitions on piercing and burning are unreasonable or otherwise invalid under Lent, supra, 15 Cal.3d 481.

In Antonio C., the court allowed appellate review of probation conditions even though the defendant had not objected to them because other rulings of the trial court made it clear any objection to the probation conditions would be futile. (Antonio C., supra, 83 Cal.App.4th at p. 1033.) The court then concluded the absolute piercings condition was invalid under Lent and ordered the probation condition modified to prohibit gang-related piercings. (Antonio C., at p. 1036.)

Attacks on the “reasonableness” of probation conditions fall squarely within the Welch rule. (Welch, supra, 5 Cal.4th at p. 230.) The minor has not shown an objection would have been futile, so the burns and piercings claims are forfeited.

The minor contends the search condition^[2] imposed by the juvenile court violates his Fourth Amendment rights. This constitutional claim is forfeited under Gardineer, supra, 79 Cal.App.4th 148.

The United States Supreme Court has held that a search conducted pursuant to a similar probation condition did not violate the Fourth Amendment. (See United States v. Knights (2001) 534 U.S. 112, 114, 122 [151 L.Ed.2d 497, 502, 507].) Even if the minor’s Fourth Amendment claim were not forfeited, we would reject it on the merits.

The juvenile court also imposed a probation condition that the “Minor is not to illegally use or possess or associate with persons known to use drugs, narcotics, marijuana, and/or alcohol.” The minor contends the condition is unreasonable because it prohibits him from associating with people who legally use drugs such as a sick parent. This claim is forfeited under Welch.

The minor contends this condition and a condition prohibiting association with known gang members^[3] are impermissibly overbroad limits on his freedom of association. Relying on Justin S., supra, 93 Cal.App.4th 811 and People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 (Garcia), he asserts these conditions must be modified to only prohibit association with those whom the minor knows to be gang members or whom he knows to possess intoxicating substances. Applying Gardineer, we find these claims forfeited even if they involve pure questions of law. (Gardineer, supra, 79 Cal.App.4th at pp. 151-152.)

The claims are also without merit. Garcia and Justin S. involved limits on association with no knowledge requirement. (See Justin S., supra, 93 Cal.App.4th at p. 813 [not “’associate with any gang members’”]; Garcia, supra, 19 Cal.App.4th at p. 100 [“’Not associate with . . . any felons, ex-felons, users or sellers of narcotics’”].) The minor’s probation conditions have knowledge requirements, prohibiting association with “anyone known to be on probation or parole” and “persons known to use drugs, narcotics, marijuana, and/or alcohol.” (Italics added.) Although the phrase “known to the minor” would be more precise, the probation conditions are not unconstitutionally vague.

II. Maximum Confinement Time

The minor claims the juvenile court erred by failing to consider the possibility of a maximum confinement time less than the highest term an adult would serve. We disagree.

Welfare and Institutions Code section 731, subdivision (b), provides in relevant part: “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 period of adult confinement as determined pursuant to this section.” (Italics added.)

This court recently explained that the italicized provision is “intended to give the juvenile court discretion to impose less than the adult maximum term of imprisonment when committing a minor to CYA and to require the court to set that term of confinement based on the facts and circumstances of each case.” (In re Jacob J. (2005) 130 Cal.App.4th 429, 437.)

This provision does not apply to the minor’s sentence. The juvenile court did not commit the minor to the CYA,^[4] but rather San Joaquin County Camp, and thus did not err by failing to consider any maximum period of physical confinement at that agency.

III. Custody Credits

The minor claims the dispositional minute order must be corrected to reflect the oral judgment. The Attorney General correctly concedes the point. We accept the concession.

At disposition the juvenile court stated: “Credit for time served is 224 days.” The minute order does not reflect credit for the current and aggregate time served. Under our power to order the correction of a clerical error in the record at any time (People v. Mitchell (2001) 26 Cal.4th 181, 185), we shall direct the juvenile court on remand to make the necessary correction.

DISPOSITION

The judgment is affirmed. The juvenile court is directed to amend the dispositional minute order to reflect 224 days of custody credit.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

SIMS , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] “The minor is to submit to . . . search and seizure at any time of the day or night, by any peace officer or probation officer, without the requirement of probable cause or the minor’s consent or a search warrant.”

^[3] “The minor shall not associate with anyone known to the minor to be a member of a criminal street gang or anyone known to be on probation or parole . . . .”

^[4] Effective July 1, 2005, the CYA is known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (§ 6001.)