In re H.V.

 

 

 

 

 

 

 

 

 

 

Filed 11/6/13  In re H.V. CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
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IN RE H.V., a Person Coming Under the Juvenile Court Law.	H039634      (Monterey County       Super. Ct. No. J35398)
THE PEOPLE,   Plaintiff and Respondent,   v.   H.V.,   Defendant and Appellant.

>I. 
INTRODUCTION

            The minor, H.V.,
appeals from the juvenile court’s May 1, 2013 dispositional order declaring him
a ward of the court and committing him to the county juvenile ranch following
the minor’s admissions that he committed conspiracy to commit robbery
(Pen. Code, § 211)href="#_ftn1"
name="_ftnref1" title="">[1]> and href="http://www.mcmillanlaw.com/">attempted robbery (§§ 664, 211).

            On appeal,
the minor challenges a condition of probation that prohibits him from contact
with the victim or the victim’s family and requires him to stay at least 100
yards away from the victim and the victim’s residence, vehicle, school, and
placement of employment.  For reasons
that we will explain, we will modify the probation condition to include an
explicit knowledge requirement.  As so
modified, we will affirm the juvenile court’s dispositional order.

ii.  factual Background

            According to the probation report,
on December 26, 2012,
the minor was involved in the robbery of the victim, L.  The incident began when L. (age 16) was
approached near a skating rink by three other teenagers, including the minor
(age 17), another minor, R.R. (age 17), and 18-year-old John Avery.  R.R. told L. to give him $10 and when L.
replied that he did not have $10, the minor and the others walked away.  L. heard the minor urging R.R. to approach
him again.

            Next, L. was surrounded by the
teenagers (the minor, R.R. and Avery). 
R.R. and Avery searched L.’s pockets and Avery took L.’s cell
phone.  When L. told R.R. that he had the
ability to track the cell phone, R.R. punched L. in the face.  L. ran to his residence and informed his
father of the incident.

            L.’s father became involved after he
and L. located the minor, Avery, and R.R. 
When asked about the whereabouts of L.’s cell phone, Avery denied that
he had it.  L’s father saw that R.R. was
holding his own cell phone and grabbed it. 
R.R. recovered his cell phone by removing L.’s cell phone from his
pocket and and handing it to L.’s father in exchange for his cell phone.  R.R. and L.’s father then began pushing each
other.  In the ensuing altercation, L.
punched R.R. in the head and Avery punched L. approximately seven times in the
back.  L. fell and hit his head on a
fountain.  After L.’s father pulled Avery
away from L., the minor, R.R., and Avery fled from the scene.

            Police officers located the minor
and R.R.  They did not comply with the
officers’ command to stop and get on the ground.  Although the minor pulled away from the
police officer who had grabbed him and attempted to place him in handcuffs, the
officer was eventually able to arrest him. 
L. positively identified the minor and R.R. as the persons who had
robbed him.

>III.  PROCEDURAL BACKGROUND

            In March 2013 a
petition was filed under Welfare and Institutions Code section 602,
subdivision (a) alleging that the minor had committed robbery (§ 211;
count 1) and misdemeanor resisting, delaying, or obstructing a peace
officer (§ 148, subd. (a)(1); count 2).  On April 10, 2013, the petition was amended
to include conspiracy to commit robbery (§§ 182, subd. (a)(1), 211; count 3)
and attempted robbery (§§ 664, 211; count 4).

            During the
proceedings held on April 10, 2013, the minor admitted the allegations of
counts 3 and 4 in the petition and counts 1 and 2 were dismissed.  On May 1, 2013, the juvenile court’s
dispositional order declared the minor a ward of the court and placed him in
the custody of his probation officer for 412 days, including a credit of 93
days in juvenile hall for time served and a commitment of 319 days to the
county juvenile ranch.

            The
dispositional order also includes several probation conditions.  At issue in the present case is probation
condition No. 11:  “You are not to have
direct or indirect contact with victim [L.] or anyone known to you to be a
member of the victim’s family.  Stay at
least 100 yards away from the victim, victim’s residence, vehicle, school, and
place of employment.”

iv.  Discussion

            On appeal,
the minor contends that the probation condition No. 11 is unconstitutionally
vague and should be modified to contain an explicit knowledge requirement.  The minor did not challenge the probation
condition in the proceedings below.

            Our Supreme
Court has determined that the forfeiture rule does not apply when a probation
condition is challenged as unconstitutionally vague or overbroad on its face
and the claim can be resolved on appeal as a pure question of law without
reference to the sentencing record.  (>In re Sheena K. (2007) 40 Cal.4th 875,
888-889 (Sheena K.); see also >People v. Leon (2010) 181 Cal.App.4th
943, 949 (Leon).)  In this case, the minor’s arguments on appeal
present pure questions of law without reference to the sentencing record and
therefore we will consider the substance of those arguments.

                A.  Legal
Principles Regarding Probation Conditions

            “The
California Legislature has given trial courts broad discretion to devise
appropriate conditions of probation, so long as they are intended to promote
the ‘reformation and rehabilitation’ of the probationer.  (. . . § 1203.1, subd. (j).)”  (In re Luis F. (2009) 177
Cal.App.4th 176, 188.)  “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.” 
(Welf. & Inst. Code, § 730, subd. (b).)

            However,
“[a] probation condition ‘must be sufficiently precise for the probationer to
know what is required of him [or her], and for the court to determine whether
the condition has been violated,’ if it is to withstand a [constitutional]
challenge on the ground of vagueness.”  (>Sheena K., supra, 40 Cal.4th at p. 890.) 
In Sheena K., the California
Supreme Court considered a probation condition that ordered the defendant not to
associate with anyone “ ‘disapproved of by probation.’ â€  (Ibid.)  The court found that “in the absence of an
express requirement of knowledge,” the probation condition was
unconstitutionally vague.  (>Id. at p. 891.)

            A similar
result was reached in Leon where the challenged
probation condition ordered:  “ ‘No
association with gang members.’ â€  (>Leon, supra, 181 Cal.App.4th at p. 949.)  This court found the probation condition constitutionally
defective because it “lack[ed] an explicit knowledge requirement.”  (Id.
at p. 950.)  Without the knowledge qualification,
the condition rendered the defendant “vulnerable to criminal punishment for ‘associating
with persons not known to him to be gang members.’  [Citation.]” 
(Ibid.)  Therefore, this court ordered the probation
condition modified to read as follows:  â€œ
‘You are not to associate with any person you know to be or the probation
officer informs you is a member of a criminal
street gang.’ â€  (>Ibid., fn. omitted.)

            B.  Analysis

            The minor
challenges probation condition No. 11 on the ground that the condition is so
vague that it violates the due process clauses of the federal and California
constitutions (U.S. Const., 5th & 14th Amends.; Cal. Const., art I, §
15.)  He explains that he could violate
probation condition No. 11 “without having any knowledge whatsoever that he is
doing so,” since there is nothing in the record to indicate that he is
acquainted with L. or knows where L. works, resides, and goes to school, or
what kind of vehicle L. drives.  The
minor therefore requests that probation condition No. 11 “be modified to
require that [he] not knowingly come within 100 yards of [L.’s] vehicle,
residence, or place of employment.”

            The People
believe that the requested modification is unnecessary since a knowledge
requirement is, in their view, implicit in probation condition No. 11.  However, the People do not object to the
modification.  They request that
probation condition No. 11 be modified to read as follows:  “You are not knowingly to have direct or
indirect contact with the victim or anyone known to you to be a member of the
victim’s family.  Do not knowingly come
within 100 yards of the victim, victim’s residence, vehicle, school, and place
of employment.”

            “Given ‘the
rule that probation conditions that implicate constitutional rights must be
narrowly drawn, and the importance of constitutional rights,’ the knowledge
requirement in probation conditions ‘should not be left to implication.’  [Citation.]” 
(Leon, supra, 181 Cal.App.4th at p. 950.) 
Absent an explicit knowledge requirement, probation condition No. 11 is
constitutionally defective because the name=SearchTerm>minor is vulnerable to punishment for unknowing violations
of the condition.  (Cf., e.g. In re
Justin S. (2001) 93 Cal.App.4th 811, 816.)

            We will
therefore order that probation condition No. 11 be modified to read as
follows:  “You are not to knowingly have
direct or indirect contact with victim [L.] or anyone known to you to be a
member of the victim’s family.  Do not
knowingly come within 100 yards of the victim, victim’s residence, vehicle,
school, and place of employment.”

>V.  DISPOSITION

            The dispositional
order of May 1, 2013, is ordered modified as follows.  Probation condition No. 11 shall read:  “You are not to knowingly have direct or
indirect contact with victim [L.] or anyone known to you to be a member of the
victim’s family.  Do not knowingly come
within 100 yards of the victim, victim’s residence, vehicle, school, and place
of employment.”  As so modified, the order
is affirmed.

 

 

 

 

 

 

                                                                                ___________________________________________

                                                            Bamattre-Manoukian, ACTING P.J.

 

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

 

__________________________

Márquez,
J.

 

Grover, J., Concurring

            I write
separately to state my agreement with the Attorney General that the probation
condition challenged here need not be modified because it contains an implicit
knowledge requirement.

            It is well
established that an individual will not be subject to criminal sanctions
without proof of a mental state corresponding to the prohibited conduct.  As the California Supreme Court has
explained, “the requirement that, for a criminal conviction, the prosecution
prove some form of guilty intent, knowledge, or criminal negligence is of such
long standing and so fundamental to our criminal law that penal statutes will
often be construed to contain such an element despite their failure expressly
to state it.  ‘Generally, “ ‘[t]he
existence of a mens rea is the rule of, rather than the exception to, the
principles of Anglo-American criminal jurisprudence.’
. . . [Citation.]  In
other words, there must be a union of act and wrongful intent, or criminal negligence.  (Pen. Code, § 20; [citation].)’ ”  (In re
Jorge M. (2000) 23 Cal.4th 866, 872, quoting People v. Coria (1999) 21 Cal.4th 868, 876.)  “[A]t least where the penalties imposed are
substantial, [Penal Code] section 20 can fairly be said to establish a
presumption against criminal liability without mental fault or negligence,
rebuttable only by compelling evidence of legislative intent to dispense with
mens rea entirely.”  (>In re Jorge M., supra, at p. 879.)

            As the
Attorney General points out, and the majority acknowledges, it is similarly
established that a probation violation must be willful to justify revocation of
probation.  (People v. Zaring (1992) 8 Cal.App.4th 362, 379
[probationer 22 minutes late to court]; People
v. Galvan (2007) 155 Cal.App.4th 978, 982 [failure to report due
to deportation].)  As explained in >People v. Cervantes (2009)
175 Cal.App.4th 291, 295 (Cervantes),
in which a probationer failed to appear for a review hearing due to being in
the custody of immigration officials:  “A
court may not revoke probation unless the evidence supports ‘a conclusion
[that] the probationer’s conduct constituted a willful violation of the terms
and conditions of probation.’  [Citing >People v. Galvan, supra.]”  Noncompliance is not willful when it is
attributable to circumstances beyond a probationer’s control (>Cervantes, supra, at p. 295),
just as nonpayment is not willful unless a probationer has the ability to
pay  (People v. Quiroz
(2011) 199 Cal.App.4th 1123, 1129; Pen. Code, § 1203.2,
subd. (a)).

            That
general view notwithstanding, I am able to concur in the modification here
because the challenged condition in this juvenile case implicates association
as did the condition reviewed in In re
Sheena K. (2007) 40 Cal.4th 875, cited by the majority.

 

 

                                                                        ______________________________________

                                                                        Grover,
J.