In re Suny Y.
Filed 10/12/06 In re Suny Y. CA3
NOT TO BE PUBLISHED
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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| In re SUNY Y., a Person Coming Under the Juvenile Court Law. | C052099 |
| THE PEOPLE, Plaintiff and Respondent, v. SUNY Y., Defendant and Appellant. |
(Super. Ct. No. JV120408)
|
A petition filed July 20, 2005, alleged that minor Suny Y. came within the meaning of Welfare and Institutions Code section 602 in that he made annoying telephone calls, a misdemeanor (Pen. Code, § 653m, subd. (a)), and criminal threats, a felony (Pen. Code, § 422), against Anthony Vang.
A subsequent petition filed December 2, 2005, alleged that the minor made criminal threats, a felony, and annoying telephone calls, a misdemeanor, against Cha Lee Vu.
At the settlement conference on March 2, 2006, the prosecutor represented that the subsequent petition filed December 2, 2005, superseded the original petition filed July 20, 2005. The minor admitted criminal threats as a misdemeanor in exchange for a grant of probation with five days of work project and 30 days of home supervision. The other count was dismissed.
The court adjudged the minor a ward of the court, committed the minor to the care and custody of his parents, and granted probation subject to certain terms and conditions including five days of work project.
The minor appeals. He challenges a condition of probation as unconstitutionally vague and overbroad. Specifically, he challenges the italicized portion of the following condition: “Not associate with persons who you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana, or be in places where such substances are present.” He argues that the condition must be modified by adding a requirement of knowledge, that is, not be in places where the minor knows such substances are present.
The minor acknowledges that he did not object to the condition in the trial court but argues the issue is not forfeited because, quoting from In re Justin S. (2001) 93 Cal.App.4th 811, 815, it is a “‘pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court.’ [Citations.]”[1]
Acknowledging that there is a split of authority on whether the forfeiture rule applies when a constitutional challenge to a probation condition is raised for the first time on appeal, the Attorney General argues that the minor’s claim is forfeited by his failure to raise an objection in the trial court, citing People v. Welch (1993) 5 Cal.4th 228 (Welch), People v. Gardineer (2000) 79 Cal.App.4th 148 (Gardineer), and In re Josue S. (1999) 72 Cal.App.4th 168 (Josue S.).
In Gardineer, this court, relying upon Welch and Josue S., concluded that the defendant’s challenge to a probation condition as unconstitutionally vague had been forfeited for failure to raise that objection in the trial court. (Gardineer, supra, 79 Cal.App.4th at pp. 151-152.) Following Gardineer, we conclude that the issue the minor raises here is likewise forfeited.
DISPOSITION
The judgment (order of probation) is affirmed.
RAYE , J.
We concur:
BLEASE , Acting P.J.
HULL , J.
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[1] The minor notes that this issue is pending before the California Supreme Court in In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980. (See also In re William R. (2005) 133 Cal.App.4th 1004, review granted Feb. 22, 2006, S139281.)
