In re SHEENA K.,
Filed 3/15/07
IN THE SUPREME COURT OF CALIFORNIA
Coming Under the Juvenile Court Law. )
________________________________ )
THE PEOPLE, )
)
v. )
Defendant and Appellant. ) Super. Ct. No. KJ19106
__________________________________ )
Sheena K., defendant, was convicted of misdemeanor battery and, pursuant to Welfare and Institutions Code section 602, was adjudicated a ward of the juvenile court. In its disposition, the juvenile court ordered that defendant be placed on probation subject to a variety of conditions, including that she not associate with anyone disapproved of by probation. Although defendant did not object in the juvenile court to any of the conditions of probation imposed, on appeal she contended that the probation condition restricting her association with other persons was vague and overbroad, violating her rights under the First and Fifth Amendments to the federal Constitution.
In declining to apply the doctrine of forfeiture on appeal and deciding minors constitutional claim notwithstanding her failure to object on that ground in the juvenile court, the Court of Appeal joined a conflict that exists among the Courts of Appeal with respect to the applicability of that doctrine to challenges made upon constitutional grounds to a condition of probation. Having concluded on the merits that the probation condition imposed in the present case is unconstitutionally vague and overbroad in its literal wording, the Court of Appeal added the requirement that defendant have knowledge that the probation officer disapproved of a particular associate, and upheld the condition as so modified.
We granted review to resolve the conflict among appellate decisions concerning whether the doctrine of forfeiture or waiver applies to a challenge to a condition of probation, raised for the first time on appeal, when the challenge is based on the ground the condition is vague or overbroad and thus facially unconstitutional. In addition, we directed the parties to brief the issue whether defendants probation condition requiring that she not associate with anyone disapproved of by probation is vague or overbroad and thus violates defendants constitutional rights.
As we shall explain, we conclude that defendants constitutional challenge to her probation condition was not forfeited despite her failure to object on the foregoing ground at the time the condition was imposed by the juvenile court. In addition, we conclude that, as imposed by the juvenile court, the probation condition is unconstitutionally vague and overbroad, but as modified by the Court of Appeal, the condition satisfies federal constitutional requirements. For a different reason, however, we do not have cause to affirm the judgment rendered by the appellate court.
Recently we were informed that Sheena, who was born on June 16, 1986, died on or about June 2, 2006. Although her death renders the Peoples appeal technically moot (In re Jackson (1985) 39 Cal.3d 464, 468, fn. 3; see People v. Dail (1943) 22 Cal.2d 642, 659), we have exercised our inherent authority to retain this case for argument and opinion in order to resolve the conflict that has arisen in the Courts of Appeal with regard to the first issue, and in view of the recurring nature of both issues. (People v. Anzalone(1999) 19 Cal.4th 1074, 1076; In re Jackson, supra, 39 Cal.3d at p. 468, fn. 3; see People v. Mancheno (1982) 32 Cal.3d 855, 859, fn. 1; In re William M. (1970) 3 Cal.3d 16, 23-25.)
At approximately 5:30 p.m. on September 26, 2002, defendant Sheena K. was in the dining facility at the MacLaren Childrens Center in El Monte. Defendant observed that Diana N., whom she did not like, was seated at the same table and demanded that Diana leave. When Diana refused, Childrens social worker Julie Nwosu intervened, instructing Diana to stay in her seat and defendant to change tables. Defendant refused to leave, engaged in yelling and name-calling with Diana, and poured salad dressing on Dianas hair and face.
Childrens Center social worker Carla Coleman, whom defendant also did not like, directed defendant to move away from Diana. Defendant approached Coleman, pointing her finger and calling Coleman names. Coleman lost her footing and shoved defendant, who punched Coleman in the face and pulled her hair before being restrained.
According to defendant, Coleman approached, told defendant to leave Diana alone, and pushed defendant against a wall, causing her to hit her head. After defendant pushed Coleman, they grappled and Coleman hit defendant with her fist, cutting defendants lip. Defendant denied that she called Coleman names, hit her, or pulled her hair, but admitted that she pushed Coleman and freed herself from Colemans grip.
The juvenile court found that defendant committed misdemeanor battery (Pen. Code 242) and, based on that offense, determined defendant to be a ward of the court (Welf. & Inst. Code 602). The juvenile court placed defendant on probation in the Camp Community Placement Program, subject to 15 terms and conditions, including that defendant not associate with anyone disapproved of by probation. The written form probation order specified that defendant not associate with anyone disapproved of by Probation Officer.
On appeal, defendant asserted that in failing to specify that defendant know which persons were disapproved of by her probation officer, the probation condition was unconstitutionally vague or overbroad. In response, the Attorney General urged that defendant had failed to raise the issue in juvenile court and thus had forfeited the claim for purposes of appeal. Having concluded that defendant did not forfeit the constitutional claim on appeal and that the probation condition was vague and overbroad under the Fifth Amendment, the Court of Appeal modified the dispositional order to require that defendant refrain from associating with anyone whom she knew was disapproved of by her probation officer, and in other respects affirmed the order. We granted the Attorney Generals petition for review.
A
Before determining whether the rule of forfeiture or waiver applies in the present context, we briefly review the nature and purpose of that rule.[1] Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. (Simon, supra, 25 Cal.4th at p. 1097; People v. Smith (2001) 24 Cal.4th 849, 852 (Smith).) As the United States Supreme Court recognized in United States v. Olano, supra, 507 U.S. at page 731, [n]o procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. (See S.B., supra, 32 Cal.4th at p. 1293; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, 36, pp. 495-497; see also 9 Witkin, Cal. Procedure (4th ed. 1997 & 2006 supp.) Appeal, 394, 398 [applying the forfeiture rule in civil matters except as to questions of law and matters of public interest].) The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] (S.B.,at p. 1293; Smith,at p. 852; Saunders, supra, 5 Cal.4th at pp. 590-592.)[2]
In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a discretionary sentencing choice[ ]. (People v. Gonzalez (2003) 31 Cal.4th 745, 751, 752; Smith, supra, 24 Cal.4th at p. 852; People v. Scott (1994) 9 Cal.4th 331, 351-354 (Scott) [when the trial court fails to make or properly articulate a discretionary sentencing choice, the defendant must object in order to preserve the claim on appeal]; People v. Tillman (2000)22 Cal.4th 300, 302-303 (Tillman) [when the trial court fails to articulate reasons for not imposing a restitution fine, a decision that constitutes a discretionary sentencing choice, the People must object if their claim is to be preserved].)
In their conflict over application of the forfeiture rule to defendants claim on appeal that her probation condition was unconstitutionally vague or overbroad, the parties in the present case, as well as the decisions of the Courts of Appeal, focus upon our decision in People v. Welch (1993) 5 Cal.4th 228 (Welch). In Welch, the adult defendant was convicted of welfare fraud and placed on conditional probation. Based upon then-existing law permitting initial challenge of probation conditions on appeal, she asserted that several conditions were unreasonable and inappropriate because they did not bear a reasonable relationship to the underlying offense and future criminality, and purported to regulate conduct that was noncriminal. (Welch, supra, 5 Cal.4th at pp. 232-235; see People v. Lent (1975) 15 Cal.3d 481, 486, & fn. 1; In re Bushman (1970) 1 Cal.3d 767, 776-777.)
On a prospective basis, we extended the forfeiture rule to a claim that probation conditions are unreasonable, when the defendant fails to object on that ground in the trial court. (Welch, supra, 5 Cal.4th at pp. 234-238.) We reasoned that an adult probationer who elects to receive probation in lieu of incarceration fairly may be charged with the need to timely challenge any conditions imposed and that application of the forfeiture doctrine would deter the promulgation of invalid conditions in the trial court and decrease the number of appeals contesting such conditions. (Id. at pp. 235-237.)
In so holding we rejected the argument that, despite the defendants failure to object at sentencing, her reasonableness claim was reviewable because appellate courts routinely correct unauthorized sentences or those entered in excess of jurisdiction. (Welch, supra, 5 Cal.4th at p. 235.)[3] The majority observed that the authorities cited by the defendant in support generally involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court and reflect the reviewing courts unwillingness to ignore clear and correctable legal error, particularly where the defendant might otherwise spend too much or too little time in custody. (Id. at pp. 235-236.) The concurrence commented that [i]n those limited circumstances [in which legal error arises that implicates fundamental principles of policy and constitutional guaranties], the prerequisite of an objection to appellate review would frustrate rather than subserve the interests of justice . . . . (Id. at p. 241 (conc. opn. of Arabian, J.).)
Subsequently, several Courts of Appeal reviewing juvenile or adult court probation orders considered whether the rule of forfeiture we enunciated in Welch also should apply to a challenge made for the first time on appeal on the ground that a probation condition was unconstitutionally vague or overbroad.[4] On the one hand, several courts held that the forfeiture rule in Welch extended to challenges to probation conditions made on constitutional grounds. In Josue S., supra, 72 Cal.App.4th 168, a minor convicted of vandalism received probation with the conditions that he accept warrantless searches, abide by restrictions on travel, and earn satisfactory grades in school. Initially on appeal, the minor claimed that the probation conditions bore no reasonable relationship to the offense, restricted his exercise of constitutional rights (rights not specified in the opinion), and were vague and overbroad. The Court of Appeal held the minor forfeited all of his constitutional and state law claims by failing to object in the juvenile court. (Id. at pp. 170-173.)
In People v. Gardineer (2000) 79 Cal.App.4th 148, 150 (Gardineer), the defendant, convicted of assault with a deadly weapon, received probation with conditions including that he observe good conduct. For the first time on appeal from the judgment in subsequent proceedings revoking probation after he sent a threatening letter, the defendant asserted the condition was unconstitutionally vague. Holding the defendant had forfeited this claim by failing to object on that ground in the trial court that imposed the condition, the Court of Appeal noted that the rationale for the forfeiture rule that was applied in Welch to discourage the imposition of invalid probation conditions and reduce the number of costly appeals applied fully to a claim that the condition was unconstitutionally vague. (Gardineer,at pp. 151-152.)
On the other hand, several Courts of Appeal concluded the forfeiture rule did not extend to constitutional challenges that present pure questions of law ― excepted in the Welch majority opinion (Welch, supra, 5 Cal.4th at p. 235)― or that involve fundamental principles of policy and constitutional guaranties ― referred to in the concurring opinion in Welch. (Id. at p. 241 (conc. opn. of Arabian, J.).) In Kacy S., supra, 68 Cal.App.4th 704, a minor claimed for the first time on appeal that a probation condition requiring that he not associate with any persons not approved by his probation officer was unconstitutionally overbroad. (Id. at p. 708.) In rejecting the Peoples response that the minor did not object at trial and thus had forfeited the claim on appeal, the Court of Appeal observed that Welch was founded on considerations of judicial economy which will not be furthered by upholding a probation condition that literally requires the probation officer to approve [the minors] associat[ion] with persons such as grocery clerks, mailcarriers, and health care providers. Nor does the present record justify such a sweeping limitation on [the minors] liberty. (Kacy S., at p. 713.) The reviewing court modified the condition to forbid the minors association with a particular person. (Ibid.)
In Justin S., supra, 93 Cal.App.4th 811, 813, the minor received probation on conditions including that he not associate with any gang members and anyone disapproved by parent(s)/P.O. In declining to apply the doctrine of forfeiture to the minors claim on appeal of unconstitutional vagueness and overbreadth, the Court of Appeal observed that the majority holding in Welch was limited to Bushman/ Lent unreasonableness grounds, and expressly imposed no waiver rule on pure questions of law that could be resolved without referring to the particular sentencing record developed in the trial court. [Citation.] (Justin S., at pp. 814-815.) The court modified the condition to forbid the minors association with any person known to you to be a gang member . . . . (Id. at p. 816.) In the present case the Court of Appeal, following Justin S.,held that defendants failure to object in the juvenile court to the probation condition on the constitutional ground of vagueness and overbreadth did not forfeit the issue on appeal, because the claims consisted of pure questions of law that can be resolved without regard to the sentencing record in the trial court.
The Attorney General urges that several important considerations support our extension of Welchs forfeiture rule to a claim on appeal that a probation condition is unconstitutionally vague and overbroad. As an initial matter, he suggests that the juvenile court is in the best position to explain, clarify, or modify any probation condition to which a defendant objects on constitutional grounds. (Abdirahman, supra, 58 Cal.App.4th at pp. 970-971; 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, 925, pp. 1127-1128.) Second, he asserts that application of the forfeiture rule will reduce the number of unnecessary appellate claims and costly appeals, thereby conserving prosecutorial and judicial resources. (Gardineer, supra, 79 Cal.App.4th at pp. 151-152; Josue S., supra, 72 Cal.App.4th at p. 171; see Smith, supra, 24 Cal.4th at p. 852.) Finally, he argues that uniform application of the forfeiture rule to claims that probation conditions are unreasonable or unconstitutional will forestall the possibility that appellants merely will recast unreasonableness claims as constitutional claims and thus cause the exception to swallow the rule.[5]
We are not persuaded that application of the forfeiture rule in the present context would produce the results predicted by the Attorney General. Applying the rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions.
In contrast, 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 as in the present case, 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. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law.
Nor do we agree that permitting a minor to raise a constitutional claim of this type for the first time on appeal will encourage defense counsel simply to recast unreasonableness challenges as constitutional challenges. As defendant suggests, we presume that counsel will raise genuinely colorable claims in good faith on appeal, and will not mischaracterize a claim in order to evade the rule of forfeiture. Moreover, the appellate courts have demonstrated their ability to distinguish challenges to probation conditions based upon unreasonableness from those based upon facial constitutional defects.
TO BE CONTINUED AS PART II..
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[1] As the United States Supreme Court has clarified, the correct term is forfeiture rather than waiver, because the former term refers to a failure to object or to invoke a right, whereas the latter term conveys an express relinquishment of a right or privilege. (See, e.g., United States v. Olano (1993) 507 U.S. 725, 733; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2(S.B.); People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9 (Simon).) As a practical matter, the two terms on occasion have been used interchangeably. (Simon, at p. 1097, fn. 9; People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6 (Saunders).) Because it is most accurate to describe the issue as whether a party has forfeited a claim by failing to object in the trial court, in our subsequent discussion we generally shall refer to the issue as one of forfeiture. (Simon,at p. 1097, fn. 9.)
[2] The rule that a defendant who fails to make a claim in the trial court forfeits that claim on appeal is subject to exceptions. By statute, a defendant may challenge on appeal an instruction that affects his or her substantial rights even when no objection has been made in the trial court. (Pen. Code, 1259; People v. Cleveland(2004) 32 Cal.4th 704, 749; People v. Hillhouse (2002) 27 Cal.4th 469, 505-506; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) In addition, when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time including on appeal, because the statute is jurisdictional and confers a substantive rather than a procedural right. (People v. Williams (1999) 21 Cal.4th 335, 341.) As we shall discuss, exceptions to the rule also apply with respect to sentencing. (See, post, at pp. 6-7 & fn. 3, 13.)
[3] As we shall discuss further below, in a narrow class of cases the trial courts omission or erroneous imposition of a particular sentence or term required by law results in an unauthorized sentence, which is subject to correction by the reviewing court despite the absence of an objection by either party in the trial court. (Smith, supra, 24 Cal.4th at pp. 852-853 [in failing to impose a parole revocation fine in an amount required by statute to be equal to the restitution fine imposed, the trial court renders an unauthorized sentence rather than a discretionary sentencing choice; the reviewing court may modify the sentence to correct the amount of the fine despite the defendants failure to object]; see Scott, supra, 9 Cal.4th at p. 354, fn. 17 [in staying or failing to stay a sentence in violation of Pen. Code, 654, the trial court renders an unauthorized sentence that may be modified by the reviewing court despite the defendants failure to raise the issue in the trial court]; cf. Tillman, supra, 22 Cal.4th at p. 303 [in failing either to impose or state reasons not to impose a restitution fine, the trial court made a discretionary sentencing choice and did not impose an unauthorized sentence that the reviewing court could correct by imposing the minimum fine; the People forfeited their claim by failing to object at trial]; People v. Hester (2000) 22 Cal.4th 290, 295 [by accepting in a plea agreement a specified sentence violating Pen. Code, 654, the defendant rendered inapplicable the exemption from forfeiture normally accorded such a claim, and was required to object in the trial court in order to preserve the claim].)
[4] The Courts of Appeal eventually agreed that the rule of forfeiture we applied in Welch to an adult defendant who fails in the trial court to challenge a condition of probation on the ground of unreasonableness also applies to juvenile defendants. Relying upon our observation in In re Tyrell J. (1994) 8 Cal.4th 68, 82 (Tyrell J.), disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130, that unlike an adult, a juvenile offender cannot refuse or consent to a grant of probation, a single case held that the rule of Welch does not apply in juvenile court proceedings. (In re Tanya B. (1996) 43 Cal.App.4th 1, 5.) Subsequent decisions criticized Tanya B. and applied the forfeiture rule of Welch to juveniles who challenged probation conditions based upon unreasonableness. (In re Abdirahman S. (1997) 58 Cal.App.4th 963, 969-971 (Abdirahman); see In re Josue S. (1999) 72 Cal.App.4th 168, 171-173 (Josue S.); In re Kacy S. (1998) 68 Cal.App.4th 704, 712 (Kacy S.).) Following those decisions, the court that decided Tanya B. concluded that its reliance on Tyrell J. was misplaced, because the circumstance that a minor has no choice but to accept probation conditions does not mean that the minor may not object to imposition of those conditions, noting our observation in Tyrell J. that [a] minor can, of course, object to particular conditions of probation as improper or unwarranted. (In re Justin S. (2001) 93 Cal.App.4th 811, 814 (Justin S.) [subject to exceptions, a minor who fails to challenge an unreasonable probation condition in the juvenile court forfeits the issue on appeal].)
[5] The Attorney General suggests in his brief that, in the event we conclude the Welch forfeiture rule applies to a claim that a probation condition on its face is unconstitutionally vague and overbroad, we also should apply the rule that ordinarily judicial decisions are retroactive. He observes that the forfeiture doctrine previously has been applied to this type of claim. (Gardineer, supra, 79 Cal.App.4th at pp. 151-152; Josue S., supra, 72 Cal.App.4th at p. 173; see Welch, supra, 5 Cal.4th at pp. 235-238.) The issue is moot in the present case, in view of defendants death, and in any event we decline to apply the rule of Welch to a facial constitutional challenge made on the ground of vagueness and overbreadth.
