In re Enrique R.

Filed 7/31/07 In re Enrique R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas Fiorello, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed as modified.

Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lise Jacobson and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Enrique R. raises for the first time on appeal a challenge to a probation condition requiring him to maintain a residence approved by his probation officer and to notify the officer of any change of residence. As we shall explain, we have concluded that Enrique, by failing to object in the juvenile court to the conditions imposition, has forfeited his right to challenge on appeal the conditions reasonableness. He retains, however, his right to contest on appeal the conditions facial constitutionality,but on that issue, we have determined his claim lacks merit. We have also decided the condition should be modified to specify that Enriques mother may move with Enrique to another home without the probation officers approval. With that modification we affirm the judgment.

FACTS

In June 2006, during a consensual search of then 14-year-old Enrique, a probation officer found in Enriques sock a glass smoking pipe containing 0.9 grams of methamphetamine. A petition alleged Enrique unlawfully possessed methamphetamine (Pen. Code,  11377, subd. (a)) and a pipe (Health & Saf. Code,  11364). At the jurisdiction hearing, the juvenile court found the allegations to be true.

The disposition report prepared by the Orange County Probation Department revealed that Enrique, when searched, had been standing in front of his house in West Myrtle claimed gang territory with his sisters boyfriend who was on active probation with gang terms. During a police interview, Enrique stated he had used methamphetamine for about 1 1/2 years and usually use[d] it three times a week.[1] Enrique asked the officer if it were possible for him to spend some time in custody because he wanted to clean up and felt if he were in custody, he would not be able to get drugs and it would help him to stop using them. Accordingly, Enrique was booked into juvenile hall. When interviewed a month later at juvenile hall, Enrique said he believes his arrest happened for a reason, as he is now clean and is ready for a change. He is hopeful he will be released at his next court hearing and does not feel he will have any difficulties remaining clean when he is out of custody. He . . . plans to return to counseling with La Familia. He would also like to attend Narcotics Anonymous (NA) meetings. [He] would like to play football in high school and become more involved in church. He has also considered moving to Washington to live with his sister. Other pertinent information in the disposition report included: Enrique had run away once that year. He was a former member of a tagging crew, but had not been involved in [it] for a couple of months . . . . Although many of his friends were drug users, he believed he could break away from them.

In the disposition report, the probation officer evaluated Enrique as seeming mature for his age and motivated to changing the path his life was on. The probation officer opined: It is of great concern that someone so young has become so deeply involved in the use of a serious drug, and it is felt he needs intervention to keep him on the path he has begun in custody. Further, the minor was previously given the opportunity to complete an informal level of probation through diversion and it appears to have done little to stop the minor from committing further and more serious criminal behavior. The probation officer recommended, inter alia, that Enrique be committed to the probation departments custody for commitment to an appropriate facility for 45 days, after which he would be released to and remain in the custody of mother under conditions including that he [m]aintain a residence approved by the probation officer and notify the probation officer of any change within 48 hours.

At the disposition hearing, the court declared Enrique a ward under Welfare and Institutions Code section 602[2] and reduced his methamphetamine possession allegation from a felony to a misdemeanor, thereby decreasing his maximum aggregate term of confinement to one year, two months. The court ordered Enrique committed to the care, custody and control of the probation department for 41 days (with credit for 41 days served) and released Enrique to his mothers custody under probation conditions including that he maintain a residence approved by the probation officer and notify the probation officer of any change within 48 hours.

DISCUSSION

Enrique contends the challenged probation condition infringes on his constitutional rights to travel and associate freely, and was not narrowly tailored to prevent future criminality. He also asserts his contention presents a pure question of law which may be raised for the first time on appeal.

But although Enrique purports to raise solely a constitutional challenge to the condition, he relies heavily on Peoplev.Bauer (1989) 211 Cal.App.3d 937 (Bauer) where an appellate court examined both the reasonableness and the constitutionality of a probation condition requiring an adult defendant to obtain his probation officers approval of his residence (id. at p. 940), a condition that had not been proposed by the probation department. (Id. at p. 943.) The Court of Appeal struck the condition as unreasonable and, alternatively, unconstitutional. (Id. at p. 944.) The court explained that a probation condition which requires conduct which is not in itself criminal, is reasonable within the meaning of section 1203.1 of the Penal Code[3] (id. at p. 941), so long as the conduct required . . . either (a) has a relationship to the crime of which the offender was convicted, or (b) is reasonably related to future criminality. (Id. at p. 942.) The court concluded the probation condition governing the defendants residence was unreasonable because it did not relate to the crime of which he was convicted, i.e. false imprisonment and simple assault, and was not reasonably related to future criminality. (Id. at p. 944.) Supplementally, the court reviewed the conditions constitutionality: where an otherwise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored [to be] reasonably related to the compelling state interest in reformation and rehabilitation . . . . (Id. at p. 942.) On this question of constitutionality, the court determined the condition infringed on the right to travel and freedom of association, and was not narrowly tailored but rather was extremely broad, giving the probation officer the discretionary power, for example, to forbid appellant from living with or near his parents that is, the power to banish him. (Id. at p. 944.)

Here, we focus only on the conditions constitutionality because Enrique, by failing to object below to the conditions imposition, has forfeited all claims except a challenge based on the ground the condition is vague or overbroad and thus facially unconstitutional. (In re Sheena K. (2007) 40 Cal.4th 875, 878 (Sheena K.), italics added.) In the recent case of Sheena K., our Supreme Court held that a minor may raise on appeal a challenge to the constitutionality of a probation condition so long as the claim presents a pure question of law that can be resolved without reference to the particular sentencing record developed in the trial court (id. at p. 889) and is easily remediable on appeal by modification of the condition. (Id. at p. 888.) This is because an appellate claim amounting to a facial challenge that phrasing or language of a probation condition is unconstitutionally vague and overbroad because, for example, of the absence of a requirement of knowledge . . . , does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts a task that is well suited to the role of an appellate court. (Id. at p. 885.) In contrast, a juvenile court is generally in a considerably better position than the Court of Appeal to review and modify a . . . probation condition that is premised upon the facts and circumstances of the individual case. (Ibid.) Also, a juvenile defendant who fails in the trial court to challenge a condition of probation on the ground of unreasonableness forfeits the claim. (Id. at p. 883, fn. 4.)

Thus, not only has Enrique forfeited his right to challenge the statutes reasonableness, he has also waived any claims of constitutional defects that require consideration of his social and drug abuse history and any other facts and circumstances in his sentencing record; in that respect, he has forfeited any claim the condition is unconstitutional because its not tailored to specifically meet his needs, as opposed to an argument the condition is not tailored to be reasonably related to the state interest in rehabilitation. (See In re Josh W. (1997) 55 Cal.App.4th 1, 5 [juvenile court enjoys broad discretion to . . . impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile].)

Enrique does not argue the condition is vague or overbroad nor does he ask this court to modify the conditions language, for example, by adding a knowledge requirement. Instead he contends the condition is facially unconstitutional as an undue burden on his rights to travel and freely associate. The only support Enrique offers for this contention is Bauer, supra, 211 Cal.App.3d 937. But Bauer involved an adult defendant. Probation conditions for minors 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 minors constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may curtail a childs exercise of the constitutional rights . . . [because a] parents own constitutionally protected liberty includes the right to bring up children [citation,] and to direct the upbringing and education of children. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)

Juvenile probationers are governed by different statutes than are adult offenders. [S]ection 730 grants courts broad discretion in establishing conditions of probation in juvenile cases. (In re Antonio R., supra, 78 Cal.App.4th at p. 940.) Under section 730, subdivision (b), when the juvenile court places a section 602 ward under a probation officers supervision or commits the ward to a probation officers care, custody, and control, 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. ( 730, subd. (b).) Similarly, under section 727, subdivision (a), when a minor is adjudged a section 602 ward of the court, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor. Section 727 contemplates the authority of a probation officer to determine the most appropriate residence for a minor on supervised probation: [T]he court shall order the care, custody, and control of the minor to be under the supervision of the probation officer who may place the minor in any of the following: [] (1) The approved home of a relative, . . .  [] (2) A suitable licensed community care facility. [] (3) With a foster family agency to be placed in a suitable licensed foster family home . . . . ( 727, subd. (a)(1), (2) & (3); see also  730, subd. (a) [other alternative placements include a juvenile home, ranch, camp, or forestry camp].) Enrique does not contend section 727 is unconstitutional and, indeed, would be hard pressed to do so given the states authority over juvenile wards and a wards concomitant circumscribed constitutional rights, discussed supra. If a probation officer has placed a minor in an approved residence, a probation condition that ensures the officer can continue to monitor where the minor resides is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. ( 730, subd. (b).) We conclude the challenged probation condition is not facially unconstitutional but is instead an appropriate acknowledgment of a probation officers authority to place a minor in a proper environment conducive to his or her rehabilitation and to maintain ongoing supervision of any change of residence.

Although we conclude the probation condition is not facially unconstitutional, we note that its language could be interpreted to restrict the freedom of Enriques mother to change her residence while Enrique is living with her. To prevent such an interpretation, we will direct the juvenile court to modify the condition to clarify that Enriques mother may move with Enrique to another home without the approval of Enriques probation officer. (In re Justin S. (2001) 93 Cal.App.4th 811, 816.)

DISPOSITION

We instruct the juvenile court to modify the July 19, 2006 minute order to delete the probation condition reading, Minor to maintain a residence approved by the probation officer and notify probation officer of any change within 48 hours, and replace it with a probation condition reading, Minor to maintain a residence approved by the probation officer and notify probation officer of any change within 48 hours. Nothing in

this provision shall prohibit minors mother from changing her and minors residence without prior approval of the probation officer. In all other respects, the judgment is affirmed.

IKOLA, J.

WE CONCUR:

OLEARY, ACTING P. J.

FYBEL, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] The disposition report also states Enrique started using methamphetamine at age 12 and used it about five times a week.

[2] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

[3] Penal Code section 1203.1, subdivision (j), permits a court to impose any reasonable [probation] conditions, as [the court] may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.