In re Makayla B.
Filed 11/15/13
In re Makayla B. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re MAKAYLA B., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
MAKAYLA B.,
Defendant and
Appellant.
F066102
(Super.
Ct. No. 10CEJ600044-2)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. James A. Kelley, Jr., Judge.
Carol A.
Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Todd Marshall and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Makayla B., a minor at the time of the underlying proceedings, appeals
the imposition of a probation condition which restricts her from leaving the
State of California without written permission from her probation officer. The condition was imposed by the Fresno
County Superior Court, sitting as a juvenile court, after it found Makayla had
violated section 242 of the Penal Code (battery) and adjudged her a ward of the
court. She now contends the travel
restriction is an unreasonable condition of probation and thus constitutes an
abuse of discretion by the juvenile court, or alternatively, that the condition
is unconstitutionally overbroad as a matter of law. We conclude the first ground for appeal has
been forfeited and the latter argument has no merit. Accordingly, the judgment is affirmed.
FACTUAL AND PROCEDURAL
BACKGROUND
On August 14, 2012, the Fresno County District Attorney filed a
juvenile wardship petition under Welfare and Institutions Code section 602,
subdivision (a), alleging Makayla had committed misdemeanor battery (Pen. Code,
§ 242). The evidence adduced at a
jurisdictional hearing on October 18, 2012, which included Makayla’s own
testimony, showed she intentionally struck a convenience store owner in the
face while inside of his store. The
juvenile court found the allegations against Makayla to be true and sustained
the petition.
A disposition hearing was held on November 8, 2012. Makayla was declared a ward of the court and
received probation without any custody time in juvenile hall. After stating its findings, the court asked
the probation officer to recite all requested conditions of probation. The record indicates that the probation
officer proceeded to read a portion of the probation department’s written
report and recommendations out loud, then paused and said, “Your honor, I think
we need to add the provision that she not leave the State of California.†The court replied, “All right.†The recommended condition was then stated as
follows: “You shall not leave the State of California without written consent
of your probation officer.â€
No objections were made during the November 8, 2012 hearing, which
concluded with the juvenile court adopting all recommended conditions of
probation as part of its dispositional order. Makayla’s timely notice of appeal was filed
the same day.
DISCUSSION
Challenges to the Conditions of Probation on
Juvenile courts have broad
discretion to formulate the terms and conditions of probation for a minor who
has been adjudged a ward of the court. (
Cal.4th 158, 183; In re P.A. (2012)
211 Cal.App.4th 23, 33.) “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.â€
(Welf. & Inst. Code, § 730, subd. (b).) As such, challenges to conditions of
probation in a juvenile case are ordinarily reviewed under the abuse of
discretion standard. (
95, 100.)
To establish an abuse of
discretion, a condition of probation must be shown to be unreasonable to the
extent that 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 . . .
.’†(Lent, supra, 15 Cal.3d at p. 486.)
However, our Supreme Court has held that failure to timely object to a
probation condition on Lent grounds
forfeits the claim on appeal. (
234-235 (Welch).) This rule of forfeiture was first established
in the context of adult criminal proceedings, but is equally applicable to
minors who appear in juvenile court. (
883, fn. 4 (Sheena K.);
182, 190.) “In both adult and juvenile
cases, the time to object is at the pertinent hearing, not for the first time
on appeal.†(In re Abdirahman S. (1997) 58 Cal.App.4th 963, 971.)
Pointing to the fact that the
travel restriction was not originally set forth in the probation department’s
written recommendations, Makayla claims she did not have a meaningful
opportunity to object to the condition at the disposition hearing. Her argument is unpersuasive. Courts are not bound to accept the
recommendations of a probation officer (Welch,
supra, 5 Cal.4th at p. 234), and a
minor has the ability to object to any particular condition of probation as
improper or unwarranted. (
fn. 3, overruled on other grounds in In
re Jaime P. (2006) 40 Cal.4th 128, 130 (Tyrell J.).) “As discussed
above, the juvenile court is vested with broad discretion to select appropriate
probation conditions, and thus a minor has ample opportunity to influence the
court’s decision.†(In re Abdirahman S., supra,
58 Cal.App.4th at p. 971.)
“A timely objection allows the
court to modify or delete an allegedly unreasonable condition or to explain why
it is necessary in the particular case.â€
(Welch, supra, 5 Cal.4th at p. 235.)
In this instance, Makayla’s counsel remained silent as the probation
officer made verbal recommendations for her probation conditions and after the
court stated its intention to accept same.
The record before us does not suggest Makayla was deprived of the
opportunity to object to the condition she now challenges, but merely that she
failed to do so. Her
The
Challenged Condition of Probation is Not Facially Unconstitutional
Notwithstanding the
discretionary authority afforded to juvenile courts, the legality of a
probation condition may be attacked on constitutional grounds. “[W]here an otherwise valid condition
impinges on constitutional rights, the condition must be carefully tailored and
reasonably related to the compelling state interest in the minor’s
Antonio C. (2000) 83 Cal.App.4th 1029, 1034.) The constitutionality of a probation
condition is reviewed de novo on appeal.
(In re Shaun R.
(2010) 188 Cal.App.4th 1129, 1143.)
Makayla contends the prohibition against interstate travel without
written consent from her probation officer infringes upon the fundamental
freedom of movement in a manner that is unconstitutionally overbroad. As with Lent claims, a
constitutional right “may be waived either directly or by inaction.†(In re
Spencer S. (2009) 176 Cal.App.4th 1315, 1323, quoting People v. Workman (1953) 121 Cal.App.2d 533, 535.) To overcome the waiver rule, Makayla attempts
to invoke an exception recognized by the California Supreme Court in
question of law†to be raised for the first time on appeal. (Sheena
K., supra, 40 Cal.4th at pp.
884, 887.)
The exception upon which Makayla relies is more limited than she
acknowledges in her briefs. It applies
only to a “facial constitutional defect in the relevant probation condition,â€
such as vagueness or overbreadth, that is “capable of correction without
reference to the particular sentencing record developed in the trial
court.†(Sheena K., supra, 40
Cal.4th at p. 887.) Thus, as the
all claims of constitutional overbreadth can be raised for the first time on
appeal, “since there may be circumstances that do not present pure questions of
law that can be resolved without reference to the particular sentencing record
developed in the trial court. In those
circumstances, [t]raditional objection and waiver principles encourage
development of the record and a proper exercise of discretion in the trial
court.†(Id. at p. 889, internal citations and quotation marks omitted.)
Makayla’s claims of constitutional overbreadth are entirely dependent
upon the unique circumstances of her case and the facts developed in the
juvenile court record. In other words,
her arguments ultimately challenge the reasonableness of the probation condition
as it applies to her, not its facial constitutionality. To assess the challenged condition as a pure
question of law, our analysis is limited to determining whether it is
unconstitutionally overbroad in its literal wording, i.e., on its face. (Sheena
K., supra, 40 Cal.4th at p. 878,
885.) We find no such infirmity.
Obtaining advance permission for interstate travel appears to be a
common requirement, as it is listed among other conditions of probation in a
check-the-box format on the Judicial Council of California form that was used
by the juvenile court for its dispositional order in this case. (Judicial Council Forms, form JV-665 (rev.
Jan. 1, 2012), box #88 [“You shall not leave the State of California without
written consent of your probation officerâ€].)
The travel restriction is consistent with the mandatory conditions of
probation under rule 5.790 of the California Rules of Court which require the
minor to attend school and remain at his or her home residence between the
hours of 10:00 p.m. and 6:00 a.m. unless accompanied by a parent, guardian, or
adult custodian. (Cal. Rules of Court,
rule 5.790(b)(1)(A) & (C).)
Furthermore, the permissible conditions of probation for juveniles are
broader than those applicable to adult offenders. (In re
Antonio R. (2000) 78 Cal.App.4th 937, 941 (Antonio R.).) “This is
because juveniles are deemed to be more in need of guidance and supervision
than adults, and because a minor’s 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 child’s exercise
of [their] constitutional rights….†(
omitted; see also, Tyrell J.,
of probation that would be unconstitutional or otherwise improper for an adult
probationer may be permissible for a minor under the supervision of the
juvenile court.â€].)
Requiring a minor to obtain written permission from their probation
officer before leaving the borders of California preserves the freedom of
movement and ability to engage in interstate travel, subject to the discretion
of those who exercise the authority of the state as parens patriae. (See
1232, 1242-1243.) It cannot be said that
such a condition is unconstitutionally overbroad on its face in the context of
juvenile probation. “If we were to
strike down the condition as facially overbroad, we would invite wholesale
attack on the probation condition in every case,†regardless of the underlying
circumstances which motivated the juvenile court to impose the
restriction. (In re Victor L. (2010) 182 Cal.App.4th 902, 922.)
The facial constitutionality of the challenged condition is further
evidenced by the holdings of two cases cited in the parties’ briefs. In Antonio
R., supra, the Fourth District
found that the constitutional rights of a juvenile appellant who resided in
Orange County were not impermissibly burdened by the imposition of a condition
that prohibited him from entering Los Angeles County “unless accompanied by a
parent or with prior permission from the probation officer.†(Antonio
R., supra, 78 Cal.App.4th at p.
939.) Although the probation condition
was more geographically restrictive than the one at issue here, the minor’s
ability to travel with his parents or with written permission from his
probation officer was considered a constitutional “safety valve†that
adequately balanced the rights of the minor “with the rehabilitative purpose of
probation.†(Id. at p. 942.)
The other analogous case is In re
Daniel R. (2006) 144 Cal.App.4th 1 (Daniel
R.), where a challenge was made to a probation condition that prohibited
the juvenile probationer from travelling to Mexico under any
circumstances. (Daniel R. supra, 144 Cal.App.4th
at p. 5.) The absolute ban on travel to
the neighboring country was held to be unconstitutionally overbroad under the
particular circumstances of the case. (Id.
at pp. 3, 7-8.) However, the appellate court further held the constitutional
defect could be cured – and was cured – by its modification of the condition to
allow travel to Mexico if the minor obtained permission from his probation
officer and was accompanied by his parents.
(Id. at pp. 7-9.)
In light of the foregoing authorities and our review of the record, we
conclude Makayla has failed to establish any basis for reversal or modification
of the juvenile court’s dispositional order.
The probation condition which restricts her from leaving the State of
California without the written consent of her probation officer is not facially
unconstitutional. All other challenges
to the reasonableness of this condition were forfeited by her failure to
interpose an objection during the proceedings below.
DISPOSITION
The judgment is affirmed.
Peña, J.
v. Lent (1975) 15 Cal.3d 481 (Lent).
