In re Khalid M.

Filed 5/2/07 In re Khalid M. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEALS from orders of the Superior Court of Los Angeles County. Mitchell Harris, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed, remanded and modified.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Khalid M., a minor, appeals from the orders terminating his status as a dependent under Welfare and Institutions Code section 300,[1]declaring him a ward of the court pursuant to section 602 and committing him to suitable placement, by reason of his having possessed a folding knife with locking blade on school grounds (Pen. Code,  626.10, subd. (a)). The juvenile court ordered suitable placement for appellant, imposing terms and conditions, including a condition that he stay away from places where narcotics users congregate and a condition that he not be in the presence of any unlawfully armed person. Appellant contends that (1) the minute order must be corrected to delete the condition that he stay away from places where users congregate because it was not included in the oral pronouncement of the decision, and (2) these conditions are constitutionally vague and overbroad and must be modified to include a knowledge requirement. The People contend that appellant has forfeited his constitutional claims by failing to raise them in the juvenile court.

We modify the condition that appellant not be in the presence of any unlawfully armed person, remand for determination of whether the condition that he stay away from places where users congregate should be imposed and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On July 26, 2004, the district attorney filed a section 602 petition alleging that appellant had possessed a folding knife with locking blade on school grounds. The petition was based on the facts that on May 27, 2004, during appellants second period class, a witness observed him showing a silver colored knife to another student. The witness asked for the knife and appellant told her to shut up. Appellant was removed from the classroom by school personnel and searched. The knife was not found on him, but was later recovered near or inside a trash can in the classroom.

On December 9, 2004, appellant admitted the allegation in the petition. The juvenile court sustained the petition, placed him on informal probation for a period of six months and released him for DCFS placement. While on informal probation, appellant remained under the dual supervision of the probation department and DCFS.

On July 9, 2005, the probation department filed a progress report alleging under section 777, subdivision (e) that appellant violated probation terms. The report indicated that appellant had failed to obey the instructions of the social worker and placement staff, failed to complete community service, failed to maintain satisfactory grades and failed to regularly participate in counseling. It recommended that appellant be declared a ward of the court pursuant to section 602.

On October 12, 2005, the juvenile court tentatively terminated appellants informal probation and temporarily placed him in the care of the probation department.

On December 6, 2005, the juvenile court determined that appellant violated probation by failing to participate in the programs provided to him by the dependency system and that he would be better served by becoming a ward of the court. The juvenile court therefore formally terminated the grant of informal probation and vacated his status as a dependent under section 300, making him a ward of the court.

On January 12, 2006, the juvenile court declared appellant a ward of the court pursuant to section 602 and ordered suitable placement at Dorothy Kirby Center. It declared the charge set forth in the petition to be a felony, with a maximum confinement period of three years. The minute order reflects imposition of probation conditions that included: 16. Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any unlawfully armed person, and 21. Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate. (Italics added.)

DISCUSSION

I. Amendment of minute order

During the disposition hearing on January 12, 2006, the juvenile court imposed probation conditions. While the printed form, checklist of conditions attached to the minute order reflects that the conditions that he not remain in the presence of any unlawfully armed person, and stay away from places where users congregate, were imposed, the juvenile courts oral pronouncement of the probation conditions only included the former condition.

Appellant contends that the matter should be remanded to allow the juvenile court to correct the minute order to comport with the oral pronouncement of the conditions. He argues that the oral pronouncement constitutes the juvenile courts order and that the minute order must be corrected to reflect that the condition that he stay away from places where users congregate was not imposed. We agree with this analysis and that the matter must be remanded. However, on remand, the juvenile court is alternatively authorized to correct the oral pronouncement to include the omitted language if it determines that is appropriate.

Generally, a judgment is the final determination of the rights of the parties in an action or proceeding. (Code Civ. Proc., 577.) More specifically, the judgment in a juvenile court proceeding is the order made after the trial court has found facts establishing juvenile court jurisdiction and has conducted a hearing into the proper disposition to be made. (Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 789.) Hence, the disposition order here is tantamount to a judgment.

Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entry of judgment in the minutes is a clerical function. (Pen. Code,  1207.) Entering judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably a clerical error. (People v. Mesa, supra, at p. 471.) If the judgment as entered in the minutes fails to reflect the judgment pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect the true facts. (People v. Hartsell (1973) 34 Cal.App.3d 8, 13.)

But jurisdiction of the juvenile court over a ward continues until he becomes twenty-one or until the court is satisfied that he has reformed or that further supervision under the law is unnecessary or inadvisable. [Citation.] It may at any time modify or set aside its orders concerning him. [Citations.] When defendant was declared a ward of the juvenile court, he became subject to its continuing jurisdiction. (People v. Sanchez (1942) 21 Cal.2d 466, 470-471; 607.) Here, because of the contradiction between the minute order and the juvenile courts oral pronouncement regarding whether condition No. 21 was imposed, the matter is remanded for clarification as to whether the minute order must be corrected to delete that condition, or whether the oral pronouncement inadvertently omitted that language and must be corrected to include it.

II. Validity of conditions

The juvenile court found appellant to be a person described in section 602 and placed him at the Dorothy Kirby Center subject to probation conditions, including that he not remain in the presence of any unlawfully armed person. It is unclear, as set forth in part I, ante, whether it intended to also impose the condition that he stay away from places where users congregate.[3] Appellant did not object to these conditions in the court below.

Appellant contends that these conditions are unconstitutionally vague and overbroad. He argues that because there is no requirement that he know a person is unlawfully armed or a place is a location where drug users congregate, he can unintentionally violate these conditions. Appellant urges that these conditions must be modified to provide that he have knowledge of who is unlawfully armed and what locations are locations where users congregate.

The People contend that appellant forfeited this contention by failing to raise it in the juvenile court.[4]

Forfeiture

After briefing in this matter was completed, the California Supreme Court rendered its decision in Sheena K., supra, 40 Cal.4th 875,resolving the forfeiture question before us. In that case, a minor was placed on probation subject to terms and conditions, including the condition that she not associate with anyone disapproved of by probation. (Id. at p. 880.) On appeal, the minor contended that that probation condition was unconstitutionally vague and overbroad, although that claim was never raised in the juvenile court. The Supreme Court held that a facial challenge that the 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 conceptsa task that is well suited to the role of an appellate court. (Id. at p. 885.) [A] challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law (id. at p. 887), that is not forfeited by the failure to raise it in the juvenile court. Consideration and possible correction of such a challenged probation condition is easily remediable by an appellate court and might save the time and government resources that otherwise would be expended in attempting to enforce a condition invalid as a matter of law. (Ibid.)

Sheena K. is controlling here. Appellant raises a facial overbreadth and vagueness challenge to two probation conditions that present pure questions of law. (Sheena K., supra, 40 Cal.4th at p. 885.) Those claims are therefore not forfeited by appellants failure to have raised them in the trial court.

Validity of Conditions

The juvenile court has broad discretion to impose conditions on probation. ( 730; In re Christopher M. (2005) 127 Cal.App.4th 684, 692; see also Pen. Code,  1203.1.) But that discretion is not boundless. (People v. Garcia (1993) 19 Cal.App.4th 97, 101.) [T]he void for vagueness doctrine applies to conditions of probation. [Citations.] An order must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated. (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) Regarding the claim of constitutional invalidity, we agree conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation . . . . [Citation.] (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.)

In Sheena K., in considering the condition forbidding the minor from associating with anyone disapproved of by probation, our Supreme Court reasoned that the underpinning of the vagueness challenge is the due process concept of fair warning. (Sheena K., supra, 40 Cal.4th at p. 890.) The vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. (Ibid.) The Supreme Court held that in the absence of an express requirement of knowledge, the probation condition imposed there was unconstitutionally vague because it did not notify the appellant in advance with whom she was precluded from associating. (Id. at p. 891.)

While the Supreme Court in Sheena K. did not specifically decide whether the two conditions challenged here, not being in the presence of anyone unlawfully armed and staying away from places congregated by drug users, were unconstitutionally vague, we conclude that the principles announced in that decision compel the conclusion that the conditions before us do not pass constitutional muster under the vagueness doctrine.[5]

Appellant may have no means of ascertaining if a person is armed, or if he knows that a person is armed, knowing if the arming is unlawful. As a consequence of this vagueness, appellant may unwittingly violate the condition that he not be in the presence of a person unlawfully armed.

Similarly, because appellant may not know which locations are places where drug users congregate, he may violate the condition that he stay away from such places unintentionally and without knowing he is doing so.

As in Sheena K., the simple expedient of modifying the two challenged conditions by imposing a knowledge requirement will eliminate the unconstitutional vagueness.

DISPOSITION

The challenged dispositional order is modified to provide that appellant cannot remain in the presence of anyone he knows to be unlawfully armed. The matter is remanded for the juvenile court to clarify whether it intends to impose the condition that appellant stay away from places where users congregate. If so, that condition must also contain a knowledge requirement. In all other respects the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

___________________, P. J.

BOREN

___________________, J.

DOI TODD

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

At the time of the alleged offense, appellant was a dependent under the supervision of the Department of Children and Family Services (DCFS) pursuant to section 300, due to his fathers abuse of appellants siblings, mother and grandparents.

[2] The facts are taken from the probation reports, as there was no adjudication hearing on the charged allegation because appellant admitted the allegation.

[4] While the People use the term waiver in reference to appellants failing to preserve this claim for appeal because he did not raise the question in the court below, the correct term which we use is forfeiture. Waiver is the express relinquishment of a known right whereas forfeiture is the failure to object or to invoke a right. (In re Sheena K. (2007)40 Cal.4th 875, 880, fn. 1 (Sheena K.).)

[5] So concluding, we need not determine whether the two conditions are also constitutionally overbroad. (See Sheena K, supra, 40 Cal.4th at p. 891, fn. 8.)