In re Teresa G.

Filed 10/19/07 In re Teresa G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed with directions.

Paul R. Ward, 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, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.

Minor admitted that she had received a stolen motor vehicle (Pen. Code, 496d, subd. (a)); in return, the remaining count of unlawfully driving or taking a vehicle (Veh. Code, 10851) was dismissed. Minor was thereafter declared a ward of the court and placed on probation on various terms and conditions of probation in the custody of her father. On appeal, minor contends (1) four of her gang-related probation conditions must be modified, as they are unconstitutionally vague and/or overbroad; and (2) two of her probation conditions must to stricken or modified as they violate due process. We agree with the parties that the relevant probation conditions must be modified to require a knowledge requirement. We also agree with minor that the physician-letter condition must be modified. We reject minors remaining contention.

I

FACTUAL BACKGROUND^[1]

Minor and her cousin, neither of whom were licensed, took minors uncles vehicle without permission, after the uncle refused to take them to a swap meet. The uncle called the police and reported the car stolen. After the girls returned home two hours later, they were arrested.

II

DISCUSSION

A. Validity of Four Gang-Related Conditions

Minor contends four of her gang-related probation conditions must be modified, as they are vague and/or overbroad. The People correctly agree.

The challenged probation conditions are as follows:

11. Not associate with known users or sellers of controlled substances nor be in any place where they are being used or sold.

22. Not associate with any known probationer, parolee, or gang member or anyone specifically disapproved of by his/her parents or the probation officer.

29. Not possess, wear, use, or display any item prohibited by the probation officer, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang.

31. Not be present in any gang gathering area as specified by the probation officer.

The juvenile court has broad discretion to impose conditions of probation. (Welf. & Inst. Code, 730;^[2]In re Christopher M. (2005) 127 Cal.App.4th 684, 692.) Section 730 authorizes courts in juvenile cases to 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. (Id., subd. (b).)

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. (People v. Reinertson (1986) 178 Cal.App.3d 320, 324.) A vagueness challenge is based on the due process concept of fair warning. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Therefore, 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[] . . . . (Ibid.) Probation conditions are overbroad if they prohibit the defendant from associating with persons other than those targeted by the restriction. (People v. Lopez (1998) 66 Cal.App.4th 615, 628-629 [probation condition must contain element of knowledge of gang membership].)

In Sheena K., our Supreme Court determined that a condition of probation that the juvenile not associate with anyone disapproved of by probation was unconstitutionally vague and overbroad because it did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer. (In re Sheena K., supra, 40 Cal.4th at p. 890, 891-892.) Thus, the probation condition gave the probation officer the power virtually to preclude the defendants association with anyone (id. at p. 890), which could theoretically include grocery clerks, mail carriers, and health care providers. Our Supreme Court reasoned that the underpinning of a vagueness challenge is the due process concept of fair warning. (Ibid.) 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. [Citation.] [Citation.] (Ibid.) Modification of the probation condition to require that defendant have knowledge of who was disapproved of by her probation officer cured the infringement of the defendants constitutional rights. (Id. at p. 892.)

The People apparently concede a probation condition that prohibits association with particular individuals must include a knowledge element. We also agree that the challenged conditions must be modified in the same manner as in Sheena K. In addition, while the Supreme Court in Sheena K. did not specifically decide whether the condition that minor stay away from places where gangs and drugs users congregate was unconstitutional or that minor not wear, use, or display items prohibited by the probation officer, we conclude that the principles announced in that decision compel the conclusion that these conditions do not pass constitutional muster under the vagueness and/or overbreadth doctrines. Because minor may not know which locations are places where gangs or drug users congregate or may not know what items she possesses are gang related, she may violate these conditions unintentionally and without knowing she is doing so. The conditions are overbroad because they preclude her from staying away from such places, whether or not she knows that a given location is such a place, and from possessing items, whether or not she knows are gang related.

As in Sheena K., the simple expedient of modifying the four challenged conditions by imposing a knowledge requirement brings those conditions within constitutionally tolerable limits.

As to condition No. 11, minor also argues that the condition is overbroad because it appears to prohibit her from being in locations, such as a drug store or supermarket, where controlled substances are legally being dispensed by a pharmacist.^[3] Therefore, she concludes, the condition must be modified.

Although the condition in Sheena K. was that she not associate with anyone disapproved of by probation (In re Sheena K., supra, 40 Cal.4th at p. 878), for purposes of constitutional-vagueness analysis we see no logical distinction between the Sheena K. condition and the phrase at issue here nor be in any place where [controlled substances] are being used or sold. Consequently, by parity of reasoning with Sheena K., the latter phrase requires a similar knowledge requirement and to explicitly refer to nor be in any place where illegal controlled substances are being used or sold.

B. Validity of Prescription Drug and Parenting Class Conditions

Minor also contends that two of her probation conditions violate due process because they subject her to possible violation based on the acts of persons over whom she has no control. The People reply that minor forfeited this claim and, in the alternative, argue there was no abuse of discretion.

The challenged conditions are:

12. Neither use nor possess any controlled substance or toluene-based substance without a medical prescription and even then only after a written notice is given the probation officer by a physician.

26. Parent is to attend the Parent Project or other approved parenting program as directed by the probation officer and not terminate said class until approved by the probation officer.

Failure to timely challenge a probation condition in the trial court generally forfeits the claim for purposes of appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S. B.); People v. Williams (1997) 16 Cal.4th 153, 250; People v. Welch (1993) 5 Cal.4th 228, 233-235 (Welch); In re Josue S. (1999) 72 Cal.App.4th 168, 170.) As has long been established, the purpose of the rule is to encourage parties to bring errors to the attention of the trial court so that they may be corrected at the time they are made rather than to remain silent in hopes of prevailing on appeal. (Sommer v. Martin (1921) 55 Cal.App. 603, 610; S.B., at p. 1293.) The Welch rule has been held to apply to juvenile cases and to constitutional questions, including vagueness and overbreadth claims, unless some exception applies to excuse the failure to object. (S.B., at p. 1293; In re Justin S., supra,93 Cal.App.4th at p. 814; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 970; In re Josue S., at pp. 171-172.) An exception to the forfeiture rule may be found when the appeal presents an important issue of law, and the error is easily remediable on appeal by modification of the probation condition. (In re Sheena K., supra, 40 Cal.4th at pp. 884-885, and cases cited therein.)

In Sheena K. the high court declined to extend the Welch rule to overbreadth and vagueness claims like defendants that do not depend for their resolution on the facts of the case. An obvious legal error at sentencing that is correctable without referring to factual findings in the record or remanding for further findings is not subject to forfeiture. [Citations.] (In re Sheena K., supra, 40 Cal.4th at p. 887.) Specifically, a facial challenge to the terms of a probation condition on constitutional ground of vagueness and overbreadth is not subject to the rule. (Id. at pp. 887-888, fn 7.)

Here, as with the claim in Sheena K., we find minors challenge to conditions 12 and 26 to be pure questions of law: whether the conditions are fundamentally fair to condition minors probation on the actions of her parents and doctor(s) over whom she has no control. The challenged conditions do not depend for resolution on the facts of her case. Therefore this claim has not been forfeited.

We reject minors argument that the condition requiring a parent to attend parenting classes subjects her to a violation of probation if a parent decides not to participate. The same argument was raised by the minor in In re Jason J. (1991) 233 Cal.App.3d 710, disapproved on another ground in Welch, supra, 5 Cal.4th at pages 232-233, where the parents of the minor were required to participate with the minor in counseling. (Jason J., at p. 716.) Although that case differs slightly in that the parents were required to participate in counseling with the minor, the argument was still the same that the minor could be subject to a probation violation if his parents failed to participate. The court stated that [i]n light of the specific statutory authorization for requiring parental counseling as a condition of probation, we find no error. Such parental involvement is intended to promote the minors rehabilitation.^[4] (Id. at p. 717.)

The minor in Jason J. also made the same argument with regard to a probation condition requiring his father to participate in Alcoholics Anonymous (AA). However, the court struck that condition because it found that a parents attendance at AA would only remotely be connected to the goal of minors rehabilitation. (In re Jason J., supra, 233 Cal.App.3d 710, 717.) Such is not the case here. As in Jason J., we conclude that, in light of the statutory authorization for requiring parents to participate in counseling as a condition of probation, the juvenile court did not abuse its discretion in ordering minors parents to participate in a parenting program.

Regarding condition No. 12, minor argues that term violates fundamental notions of fairness because the term subjects minor to sanctions for acts or omissions of her physician. Assuming, without deciding, that this condition violates fundamental notions of fairness, and to err on the side of caution, we agree with minor that condition No. 12 should be modified.^[5]

III

DISPOSITION

The juvenile court is directed to modify the subject probation conditions in accordance with this opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] The factual background is taken from the probation officers report.

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

^[3] While minor characterizes her constitutional challenge here as one for overbreadth, rather than vagueness as decided in In re Sheena K., supra, 40 Cal.4th 875, we find that case still controlling. The overbreadth minor asserts results from the failure of the condition to include a requirement that she know she is associating with disapproved individuals and know that locations are congregating places for drug users. Such overbreadth derives from the fact that the challenged conditions impermissibly require her to stay away from disapproved persons and places congregated by drug users, whether or not she knows that they are such persons or places. This type of overbreadth claim is analytically indistinguishable from claims that those conditions are vague because lacking a knowledge requirement, as they are premised upon that very vagueness. Numerous courts have considered such conditions as being both vague and overbroad. (See In re Justin S. (2001) 93 Cal.App.4th 811, 816 [condition prohibiting association with gang members presents a classic case of vagueness and constitutionally fatal overbreadth]; People v. Garcia, supra, 19 Cal.App.4th at p. 102 [probation condition that probationer not associate with felons, ex-felons, or users or sellers of narcotics unconstitutionally overbroad and violative of the probationers freedom of association]; In re Kacy S. (1998) 68 Cal.App.4th 704, 712-713 [record did not justify sweeping limitation effected by a probation condition that probationer not associate with any persons not approved by his probation officer].) We conclude that, whether under the vagueness or overbreadth doctrine, the prohibition against associating with disapproved persons or locations condition is unconstitutional, as set forth in Sheena K.

^[4] Section 729.2 provides: If a minor is found to be a person described in Section 601 or 602 and the court does not remove the minor from the physical custody of the parent or guardian, the court as a condition of probation, except in any case in which the court makes a finding and states on the record its reasons that that condition would be inappropriate, shall: [] . . . [] (b) Require the parents or guardian of the minor to participate with the minor in a counseling or education program, including, but not limited to, parent education and parenting programs operated by community colleges, school districts, or other appropriate agencies designated by the court or the probation department, unless the minor has been declared a dependent child of the court pursuant to Section 300 . . . .

^[5] We note the People do not address minors argument that the order restricts rather than enhances minors access to medical treatment on no reasonable basis, but merely point out, While there is no similar statutory provision [as the parenting classes provision] for the physician-letter requirement, no abuse of discretion appears in the absence of an actual objection by [minors] physician.