Filed 6/27/17 In re A.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



In re A.S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

A.S.,

Defendant and Appellant.


E066657

(Super.Ct.No. SWJ1400871)

OPINION


APPEAL from the Superior Court of Riverside County. Sean Lafferty, Judge. Affirmed with directions.
Belinda Escobosa Helzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
A.S. appeals from the modification of his wardship terms and conditions and the imposition of a three-year criminal protective order (CPO) and a 10-year CPO, both backdated to December 2014. As discussed post, we affirm and order modifications to one of the wardship terms and conditions and to the 10-year CPO.
FACTS AND PROCEDURE
The Original Wardship Proceedings
In April 2014, when A.S. was 15 years old and the victim was 16, they had an extended “make out” session at A.S.’s home that eventually ended in intercourse. Both attended the same high school. At the beginning of the next school year, the victim told a friend A.S. had raped her.
On November 10, 2014, the People filed a petition under Welfare and Institutions Code section 602, alleging A.S. committed forcible rape. (Pen. Code, § 261, subd. (a)(2).)
On December 2, 2014, the juvenile court, Judge Dickerson presiding, issued a three-year CPO under Penal Code section 136.2, naming the victim as the protected person. The order, which was written on Judicial Council Form, form CR-161, prohibited A.S. from having “personal, electronic, telephonic, or written contact” or contact “through a third party” with the victim and from coming “within 100 yards” of her.
On July 27, 2015, after a contested jurisdiction hearing, the court found the rape allegation true. The victim testified that she was graduating from school a year early and would be attending college out of state.
At the disposition hearing held on August 21, 2015, the court declared A.S. a ward of the court, ordered him to serve 90 days in juvenile hall, and placed him with his parents, subject to terms and conditions. The court denied an oral motion by the People to issue a 10-year CPO at that time, postponing the issue until a progress hearing set for December 2015.
A.S. was released from juvenile hall on November 18, 2015. At the progress hearing held on December 22, 2015, the People did not request and the court did not issue a 10-year CPO. In January 2016, A.S. began attending classes at a different high school.
The New Allegations
On April 26, 2016, A.S. was taken into custody. On April 27, 2016, the probation department filed a petition under sections 602 and 777 alleging that A.S. failed to abide by a probation officer’s directive. The department alleged that on April 20, 2016, A.S. entered the restaurant where the victim worked. A.S.’s probation officer had directed him on March 22, 2016, not to visit that restaurant under any circumstances, after the victim reported that A.S. had visited the restaurant on March 18. The department also alleged it received information that A.S. planned to obtain a guest pass to attend the High School’s prom.
At the detention hearing held on April 28, 2016, A.S. denied the petition. Counsel represented that A.S. was in class at the time of the alleged violation on April 20 and that she had subpoenaed video surveillance from the restaurant. Counsel asked that A.S. be released from custody so he could attend his prom. The court ordered A.S. detained, but released him into his parents’ custody on home detention. The court also issued a 10-year CPO, naming both the victim and her younger sister, and ordering defendant to stay away from the restaurant where the victim worked and from the High School. The court terminated the three-year CPO issued December 2, 2014. The court stated it would consider at a future date whether to remove the victim’s sister from the 10-year CPO.
The contested jurisdictional hearing was held on May 24, 2016. The People withdrew the petition after video surveillance from the restaurant on April 20 showed the person thought to be A.S. was, in fact, another person. The court terminated A.S.’s home supervision. The court denied A.S.’s motion to remove the victim’s sister from the 10-year CPO, but set a hearing on that issue.
The Proceedings on the Terms and CPOs at Issue in This Appeal
On June 30, 2016, the court held a contested hearing to determine whether to modify the 10-year CPO issued on April 28. The court heard testimony from the victim, her younger sister and father, and from A.S. The victim testified that she graduated early from the High School, but returns regularly for events. The victim is in contact with her previous water polo coaches; her friends and sister still attend the High School; her mother works at the High School; and she was allowed to return for prom and graduation. The victim testified that she sat next to some of A.S.’s friends at graduation; they told her that he planned to be at the graduation and throw water balloons at her. This did not occur, but the victim was “worried all day long.” Someone reported to the High School, who told the victim’s parents, who then told her, that A.S. was trying to attend the High School’s prom “using a fake ID and a fake name.” This made the victim not “really want to go anymore.” The victim testified she was told that, after A.S. got out of juvenile hall, he showed up at her sister’s soccer game at the High School, sat right behind her parents, and “flipped . . . off” her sister when she looked up into the stands. The victim saw A.S. in line at the grocery store when she was buying flowers on Mother’s Day, they made eye contact, and A.S. left after completing his purchase. The victim planned to go out of state for college the following school year, but would return on vacations and school breaks to work at the restaurant.
The victim’s sister testified that A.S. went to one of her soccer games and sat very near to her parents, so that they felt uncomfortable and eventually got up and moved. She was sitting on the bench and looked up into the stands to find her parents. She stated she heard someone called out her name, and that A.S. “looked at me and flipped me off.” A.S. came down onto the field after the game to talk to another player, which made the sister uncomfortable so that she could not stay and celebrate the win with her friends. She testified that some of A.S.’s friends who still went to the High School were telling her about A.S. possibly getting a guest pass for prom using a fake name and fake I.D. They asked her if she thought the victim would mind. She told them the victim was going to the prom and would mind, “and we ended up taking it in to the principal.” She answered, “yes,” when asked if she became anxious when told A.S. might be coming to her school or when she knew he was present.
The victim’s father testified that he coached wrestling at the High School and was headed over to the victim’s sister’s soccer game when he received a text from his wife stating that A.S. was sitting two rows ahead of her and her parents in the stands. He spoke with the victim’s sister after the game and she was “pretty upset” that “A, he was there and, B, the gesture that was given.” He testified that the victim had graduated from the High School one year early because of the rape. He had spoken with the principal about A.S. trying to go to the prom. The principal did not find A.S.’s name on the list of guest passes, but “they basically had his picture given” out in case A.S. tried to go to the prom. He testified that the victim was looking over her shoulder the entire night of the prom and that her sister was affected as well, in that “now she’s looking to see if he’s going to be at the school.”
A.S. testified that he was a junior because he had been held back one year. He testified that he did talk to his friends about whether he should attend his new school’s prom or the High School’s prom, which were to be held the same night, but he never tried to get a guest pass. He stated he had only been to the High School one time after transferring schools, and it was for a soccer game for his good friend’s “senior night.” He knew the victim’s sister was on the soccer team. He testified he did not know he was sitting near the victim’s family, he did not “flip off” the victim’s sister, and he did not go down onto the field after the game. A.S. testified that his younger brother would be attending the High School the following year, and he would like to attend his sporting events.
The court had briefing from A.S.’s counsel and the People and heard argument, including a representation from A.S.’s counsel that his family would need A.S. to drive his brother to and from the High School. Because of uncertainty regarding what orders the law allowed the court to make, the court struck the victim’s sister and the High School from the 10-year CPO, pending a further hearing. The court then modified the terms and conditions of A.S.’s wardship to incorporate by reference the 10-year CPO as it was issued on April 28—this included no contact with the victim and her sister, and staying away from the High School and the restaurant where the victim worked.
On August 9, 2016, the court issued a three-year “no contact” CPO under section 213.5, backdated to December 2, 2014, protecting the victim and her sister and ordering A.S. to stay away from the High School and the restaurant where the victim worked.
The court also issued a modified 10-year no negative contact CPO under Penal Code section 1201.3, backdated to December 2, 2014, prohibiting A.S. from harassing, intimidating or threatening the victim or her sister.
This appeal followed.
DISCUSSION
1. Probation Terms
A.S. argues the court improperly modified the terms of his probation at the June 30, 2016 hearing to incorporate the terms of the 10-year CPO, which prohibits him from having indirect contact with the victim and her sister until December 1, 2024. Specifically, A.S. contends (1) the court lacked jurisdiction to extend his wardship to 2024, and (2) the prohibition on indirect contact is unconstitutionally vague and overbroad because it lacks an intent requirement.
A.S. also argues the court lacked jurisdiction to extend his wardship beyond his 25th birthday, in November 2023, pursuant to section 607, subdivision (b). The People, in turn, argue the court did not extend the wardship when it incorporated the terms of the 10-year CPO into the wardship terms, because the court did not also incorporate the CPO’s expiration date. Both are correct. The court could not and did not extend the date of A.S.’s wardship, for the reasons each party offers.
As incorporated from the 10-year CPO, the challenged condition of A.S.’s probation is that he “must have no contact with the protected persons named above through a third party, except an attorney of record.” The People first counter that the actual condition, as found in the court’s minute order for June 30, 2016, is: “Minor to have no direct or indirect contact with [the victim and her sister].” We find no real difference between the two, but any discrepancy between the minute order and the oral pronouncement of judgment is resolved in favor of the oral pronouncement of judgement. (People v. Farell (2002) 28 Cal.4th 381, 384, fn.2.)
In any case, A.S. argues the prohibition on indirect contact, or contact through a third party, is unconstitutionally vague and overbroad as written and must be stricken or modified to prohibit him from discussing with third parties his case, the victim, or her sister, only if he has the specific intent or knowledge that such discussion would be conveyed to the victim or her sister. We agree. Where a probationer could unknowingly engage in activity prohibited by probation conditions, Courts of Appeal have modified those conditions to incorporate a scienter requirement. (See, e.g., People v. Lopez (1998) 66 Cal.App.4th 615, 629; In re Kacy S. (1998) 68 Cal.App.4th 704, 713 [association with approved persons]; People v. Turner (2007) 155 Cal.App.4th 1432, 1435-1436 [persons under 18]; In re Victor L. (2010) 182 Cal.App.4th 902, 912-913; People v. Moses (2011) 199 Cal.App.4th 374, 377 [minors]; People v. Moore (2012) 211 Cal.App.4th 1179, 1185.) Because A.S. may say something to a third person regarding his case, the victim, or her sister, without knowing or intending that the third party will convey the statement to the victim or her sister, the condition must be modified to prohibit A.S. from communicating with a third party with the intent or reasonable knowledge that the communication will be conveyed to the protected persons.
2. Three-Year CPO—the Restaurant and the High School
A.S. argues the three-year CPO issued on August 9, 2016, and backdated to December 2, 2014, is invalid. Specifically, A.S. contends the CPO, which requires him to stay away from the victim, her sister, the High School, and the restaurant where the victim works is invalid because (1) section 213.5, under which the court issued the CPO, does not authorize “stay away” orders where the minor is the person restrained, and (2) the stay away orders impermissibly infringe on his constitutional rights to travel, associate and assemble.
Last year, our colleagues in the Second Appellate District concluded that section 213.5 authorized the court in that case to order the minor to stay 100 yards away from the victim, using reasoning that is directly applicable to the current matter. In In re Carlos H. (2016) 5 Cal.App.5th 861 (Carlos H.), the juvenile court issued a restraining order under section 213.5 that prohibited the minor from contacting the victim through a third party and directed him to stay 100 yards away from her. The minor appealed, arguing section 213.5 allows “stay away” orders when the protected person is the minor in delinquency proceedings, but not when the restrained person is the minor in delinquency proceedings. The appellate court tested this argument by examining Judicial Council Form, form JV-255 (JV-255) and its statutory basis in section 213.5. Section 4 of the form is used when the restrained person is the minor in delinquency proceedings, and mirrors the statute in that it prohibits the restrained minor from “contacting, threatening, stalking, or disturbing the peace” of the protected person. (Id. at pp. 865-868, citing § 213.5, subd. (b).) Section 5 of the form is used to restrain persons other than the minor in delinquency proceedings, and mirrors the statute in that it prohibits other persons from a long list of violent or threatening acts, plus actions such as “coming within a specified distance of, or disturbing the peace” of the protected minor, or other protected persons. (Id. at pp. 865, 867, citing § 213.5, subd. (b).) The court considered the question of whether “it matter[s] that the Legislature did not specify that the child may be prohibited from disturbing the peace of a protected person by having to stay a certain distance away.” (Carlos H., at p. 868.) The court held that “there is no meaningful significance.” (Ibid.) The court reasoned that juvenile courts are authorized to make “any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . . (§ 362, subd. (a).)” (Ibid.) In addition, the purpose of the juvenile delinquency laws is to protect both the best interest of the ward and the safety of the public. (Id. at p. 867.) The inclusion of Section 9 on the JV-255 form furthers these dual purposes by allowing the juvenile court to specify, “[o]ther orders,” as the court deems necessary. Section 9 “complement[s] the general guidance offered by section 4 of the form and section 215.3, subdivision (b)—by tailoring the restraining order to match the particular facts of the case by either adding more and/or more specific restrictions.” (Id. at p. 871.) The court ended by rejecting the minor’s argument that “persons threatened by a minor should enjoy less protection than persons threatening the minor.” (Ibid.)
A.S. attempts to distinguish Carlos H. as pertaining only to orders for a minor to stay away from the protected person, not from a specific location like the protected person’s workplace or school. We disagree. The reasoning in Carlos H. applies equally to the orders at issue in this case. The juvenile court here tailored the orders to match the facts of the case and made proper use of section 9 of the JV-255 form to make a reasonable order for A.S.’s conduct that would protect the safety of the public and of the victim and her sister. The three-year CPO is valid under section 213.5, as explained in Carlos H.
We now consider A.S.’s constitutional objections to the orders that he stay away from the victim’s place of work and the High School. He argues the restrictions impinge on his freedom of movement and association because he and his friends enjoy meeting at the restaurant, and he would like to attend sporting and other events at the High School where he was formerly a student and played sports for three years, has friends, and a younger brother attends.
In his reply brief, A.S. correctly describes the issue we must decide here—whether the orders mandating that A.S. stay away from the specified restaurant and the High School are “narrowly drawn to serve the important interests of public safety and rehabilitation [citation] and if they are specifically tailored to the individual probationer.” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.) Here, the orders serve the purpose of protecting the rape victim and her sister from the trauma and anxiety that the record shows they experience in A.S.’s presence. At the time the court issued the three-year CPO, the victim was working at the specified restaurant and planned to work there on her breaks from college. Her sister planned to work at that restaurant once the victim went away to college. The stay away order regarding the restaurant was specifically tailored to prevent A.S. from both upsetting either sister by his presence and violating the other conditions of his wardship, thus contributing to his rehabilitation. The restriction on his rights to assemble and associate is slight, as there are other places he can meet with his friends. We see that the prohibition against going to the High School may be more difficult, as it will result in A.S. missing specific events that he might wish to attend and could affect his family by restricting him from driving his younger brother to and from the grounds of the High School. Again, however, the prohibition will inhibit the harm to the protected persons that occurred when A.S. attended the soccer game at the High School, negatively interacted with victim’s sister, and upset her parents. The prohibition will also avoid the threat to A.S.’s rehabilitation that occurred when he showed up at the restaurant where the victim worked. For these reasons, the restrictions on A.S. are as limited as they can be and still fulfill their purpose. The restrictions are not constitutionally invalid.
3. Ten-Year Restraining Order—“Negative Contact” vs. “All Contact”
Finally, A.S. argues the 10-year CPO is unlawful to the extent that it prohibits all contact with the victim and her sister, rather than just negative contact. The court issued the written form of the 10-year CPO on form JV-255, which cites section 213.5, as well as other code sections, none of which authorizes a 10-year restraining order against a ward of the court. The Court must look to the statute and not the judicial council form for its authority. (People v. Robertson (2012) 208 Cal.App.4th 965, 996.) Penal Code section 1201.3, which does authorize a 10-year CPO, states that “if a petition is admitted or sustained for a sexual offense involving a minor victim, the court is authorized to issue orders that would prohibit the defendant or juvenile, for a period up to 10 years, from harassing, intimidating, or threatening the victim or the victim’s family members or spouse.” Thus, Penal Code section 1201.3 authorized the court to issue a 10-year CPO prohibiting only negative contact with the victim and her sister, not all contact.
The People respond that the 10-year CPO issued in this case in fact prohibits only negative contact, as authorized by Penal Code section 1201.3, not all contact. Certainly, the record clearly indicates the court intended the 10-year CPO to prohibit only negative contact, not all contact. First, the minute order for August 9, 2016, states: “The Court further orders pursuant to PC. 1201.3(a) that the minor is prohibited from harassing, intimidating or threatening the victim or the victim’s family members effective 12/2/14-12/01/24.” Second, the transcript of the August 9, 2016 hearing indicates that the court stated: “So the ten-year order . . . is essentially no threatening, no intimidating, no harassing.” Third, also on August 9, 2016, the court explained the difference between the 3-year “no contact” CPO and the 10-year “no negative contact” CPO: “[The orders are] effective today as well, obviously, and at least until December 2nd of 2017 the absolute no-contact order will be in place. If there’s no reason to call you back to court for any change to those, then at this point it will be an order pursuant to [1201.3] in which you’re not to intimidate, harass, or threaten anybody associated with this family, or the victim, or her sister specifically.” Thus, the court clearly intended to issue the 10-year CPO as authorized by statute.
However, because the court used form JV-255 and checked box number 4, of which subsection (a) is automatically a part of, anyone reading the CPO could easily interpret it as prohibiting A.S. from “contacting” the victim and her sister for 10 years. Section 4(a) of the form provides that the “[r]estrained person . . . is a ward of the court or the subject of a petition under Welfare and Institutions Code section 601 or 602 and must not contact, threaten, stalk, or disturb the peace of anyone in item 1.” While the People are correct that the oral pronouncement of judgment in a criminal case constitutes the judgment (People v. Scott (2012) 203 Cal.App.4th 1303, 1324), this may not be so obvious to law enforcement personnel viewing the 10-year CPO without benefit of the record transcript. Especially given that A.S. spent the nights of April 26 and 27, 2016, in custody for a wardship violation that he later proved he did not commit, we understand why he is anxious that the written 10-year CPO be unambiguous. For this reason, we direct the juvenile court to strike the provisions in section 4 of the JV-255 form, dated August 9, 2016, and rewrite the CPO to clarify that A.S. is not restricted from all contact for 10 years, just the negative contact that is prohibited by Penal Code section 1201.3.
DISPOSITION
The judgment is affirmed. The court is directed to strike the provisions in section 4(a) of the JV-255 form, dated August 9, 2016, and to rewrite the order to clarify that the 10-year CPO restricts A.S. from the negative contact that is prohibited by Penal Code section 1201.3, not all contact. The court is also directed to modify the wardship terms and conditions to prohibit A.S. from communicating with a third party with the intent or reasonable knowledge that the communication will be conveyed to the protected persons.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.


We concur:


McKINSTER
J.


SLOUGH
J.