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
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STORY CONTINUED FROM PART I
The Attorney General also asserts that a challenge to a probation condition based upon a constitutional defect such as vagueness or overbreadth usually is not a pure question of law similar to that presented by an unauthorized sentence or a sentence in excess of jurisdiction, which can be resolved without reference to the particular sentencing record developed in the trial court. (Welch, supra, 5 Cal.4th at p. 235.) He urges that a claim of vagueness or overbreadth generally must be considered in light of the facts of a particular case because, for example, conditions that otherwise might be deemed overbroad will pass muster if tailored to fit the individual probationer. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 [observing that a restriction on travel to gang territory might be proper for a minor living outside the gangs territory but overbroad for a minor who lives, works, or attends school within that area]; In re Antonio R. (2000) 78 Cal.App.4th 937, 941-942 [upholding a probation condition requiring a minor living in one county not to travel to another county where the criminal conduct occurred and his gang was located].) The Attorney General points out that constitutional challenges to a probation condition may warrant remand to the trial court for the purpose of narrowing an overbroad condition in light of the defendants circumstances. (See, e.g., In re White (1979) 97 Cal.App.3d 141, 149-151 (White) [probation condition forbidding travel within designated areas having significant prostitution activities violated the defendants constitutional right to travel; case remanded to narrow travel restrictions in light of additional evidence].)[1]
We agree that an unconstitutionally vague or overbroad probation condition does not come within the narrow exception to the forfeiture rule made for a so-called unauthorized sentence or a sentence entered in excess of jurisdiction. (Smith, supra, 24 Cal.4th at p. 852; Welch, supra, 5 Cal.4th at p. 235.) A sentence is said to be unauthorized if it cannot lawfully be imposed under any circumstance in the particular case (Scott, supra, 9 Cal.4th at p. 354), and therefore is reviewable regardless of whether an objection or argument was raised in the trial and/or reviewing court. (Welch, at p. 235; Smith,at p. 852.) 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. (Smith,at p. 852; Scott,at p. 354 & fn. 17.) In contrast, a probation condition may not be patently unconstitutional but may suffer nonetheless from vagueness or overbreadth. Or in some instances, a constitutional defect may be correctable only by examining factual findings in the record or remanding to the trial court for further findings.
It does not follow, however, that a constitutional challenge to a probation condition based upon vagueness or overbreadth cannot present a pure question of law. In common with a challenge to an unauthorized sentence that is not subject to the rule of forfeiture, a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law. Correction on appeal of this type of facial constitutional defect in the relevant probation condition, similar to the correction of an unauthorized sentence on appeal, may ensue from a reviewing courts unwillingness to ignore correctable legal error. (Welch, supra, 5 Cal.4th at p. 236.) Thus, at times a Court of Appeal has exercised its discretion to hear a constitutional claim despite its holding or assumption that the rule of forfeiture applies.[2]
Defendants challenge to her probation condition as facially vague and overbroad presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition. (See Welch, supra, 5 Cal.4that pp. 235-236; Hale v. Morgan (1978) 22 Cal.3d 388, 394; cf. Josue S., supra, 72 Cal.App.4th at pp. 170-171.) Unlike claims that evidence erroneously was admitted or that the prosecutor committed misconduct ― claims made in several cases cited by the Attorney General for the proposition that forfeiture is necessary for the sake of procedural efficiency and conservation of judicial resources ― the circumstance that defendant failed to assert her constitutional claim in juvenile court does not have an impact on the same proceedings downstream. Moreover, unlike the types of challenges not requiring additional factual findings that nonetheless are rejected routinely by the appellate courts due to forfeiture, defendants constitutional challenge presents an important question of law that, as we have discussed, is likely to be reviewed on the merits by the appellate court notwithstanding the applicability of the forfeiture rule. Thus, it does not appear legally imperative, practical, or wise to extend the forfeiture rule of Welch to defendants constitutional challenge.
For those reasons, we conclude defendants claim that her probation condition was unconstitutionally vague and overbroad was not forfeited by her failure to raise it in juvenile court. We caution, nonetheless, that our conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground. As stated by the court in Justin S., we do not conclude that all constitutional defects in conditions of probation may 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. (People v. Welch, supra, 5 Cal.4th at p. 235.) 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. 236.) (Justin S., supra, 93 Cal.App.4th at p. 815, fn. 2.) We also emphasize that generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction.
B
Having decided that defendant did not forfeit her constitutional challenge, we now consider on its merits her claim that the probation condition forbidding her association with anyone disapproved of by probation is vague and overbroad.
The juvenile court has wide discretion to select appropriate conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1015(Byron B.); Welf. & Inst. Code, 730, subd. (b); see Welch, supra, 5 Cal.4th at p. 233). In distinguishing between the permissible exercise of discretion in probationary sentencing by the juvenile court and that allowed in adult court, we have advised that, [a]lthough the goal of both types of probation is the rehabilitation of the offender, [j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment . . . . [] In light of this difference, a condition 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 . . . . [] . . . [N]o choice is given to the youthful offender [to accept probation]. By contrast, an adult offender has the right to refuse probation, for its conditions may appear to defendant more onerous than the sentence which might be imposed. [Citations.] (Tyrell J., supra, 8 Cal.4th at pp. 81-82, disapproved on other grounds in In re Jaime P., supra, 40 Cal.4th at p. 130; Byron B., supra, 119 Cal.App.4th at p. 1016; Abdirahman S., supra, 58 Cal.App.4th at p. 969; In re Jimi A. (1989) 209 Cal.App.3d 482, 487-488.)
As we have explained on other occasions, the underpinning of a vagueness challenge is the due process concept of fair warning. (People v. Castenada (2000) 23 Cal.4th 743, 751.) The rule of fair warning consists of the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders (ibid.), protections that are embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, 7).) (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. [Citations.] People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 (Acuna).) A vague law not only fails to provide adequate notice to those who must observe its strictures, but also impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. [Citation.] (Id. at p. 1116.) In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that abstract legal commands must be applied in a specific context, and that, although not admitting of mathematical certainty, the language used must have reasonable specificity. (Id. at pp. 1116-1117, italics in original.)
A probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness. (People v. Reinertson (1986) 178 Cal.App.3d at pp. 324-325.) A probation condition that imposes limitations on a persons constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. (See White, supra, 97 Cal.App.3d at p. 149-150.)
In the present case, the Court of Appeal concluded that the condition that defendant not associate with anyone disapproved of by probation was both vague and overbroad because the juvenile court did not require that in order to be in violation, defendant must know which persons were disapproved of by the probation officer. The court reasoned that because of the breadth of the probation officers power to virtually preclude the minors association with anyone, defendant must be advised in advance whom she must avoid. This holding is consistent with numerous decisions. (See, e.g., Justin S., supra, 93 Cal.App.4th at p. 816 [probation condition [p]rohibiting association with gang members without restricting the prohibition to known gang members is a classic case of vagueness ]; Kacy S., supra, 68 Cal.App.4th at pp. 712-713 [probation condition requiring that the minor not associate with any persons not approved by his probation officer would require the probation officer to approve [the minors] associat[ion] with persons such as grocery clerks, mailcarriers, and health care providers and was overbroad]; People v. Lopez (1998) 66 Cal.App.4th 615, 628, 629 [condition of probation prohibiting any association with a gang suffers from . . . fatal overbreadth]; People v. King (1968) 267 Cal.App.2d 814, 825-826 (King) [noting that probation conditions prohibiting association with named persons or classes of persons have withstood vagueness challenges].)
Several Courts of Appeal have recognized that a probation condition that otherwise would be deemed vague, may be constitutional because the juvenile court offered additional oral or written comments clarifying that the minor must have knowledge of the persons disapproved of by the authorities. In Byron B., supra, 119 Cal.App.4th at page 1018, the appellate court rejected the minors challenge, on the ground of vagueness, to a probation condition prohibiting contact with any person disapproved of by a parent, probation officer, or others, because the juvenile courts minute order included the crucial words known to be ; the condition was upheld as providing that the minor must not have direct or indirect contact with anyone known to be disapproved by parent(s)/guardian(s) /probation officer, staff. (Id. at p. 1015.) Similarly, in In re Frank V. (1991) 233 Cal.App.3d 1232 (Frank V.), the reviewing court upheld a probation condition failing to specify that the minor know who was disapproved of, because at the oral proceedings the juvenile court advised that the persons with whom the probationer was precluded from associating were those whom his parents and the probation officer tell you . . . that you cant hang out with. (Frank V.,at p. 1241; see also King, supra, 267 Cal.App.2d at pp. 824-825 [probation condition forbidding participation in demonstrations was not vague or indefinite, because the trial court gave a detailed explanation of the condition and the activity that might subject the defendant to probation revocation].)
We agree with the Court of Appeal that in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague.[3] Both as orally pronounced by the juvenile court, and as set forth in the minute order, the probation condition 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 contrast to Byron B., supra, 119 Cal.App.4th at p. 1018, and Frank V., supra, 233 Cal.App.3d at p. 1241, upon which the Attorney General relies, the juvenile court in the present case did not clarify that the probation condition required such notice to the probationer.
Additionally, we agree with the Court of Appeal that modification to impose an explicit knowledge requirement is necessary to render the condition constitutional. (See, e.g., Justin S., supra, 93 Cal.App.4th at p. 816 [probation condition modified to forbid the minors association with any person known to you to be a gang member ]; People v. Lopez, supra, 66 Cal.App.4th at p. 629, fn. 5 [condition of probation modified to prohibit defendant from associating with any person known to defendant to be a gang member ]; People v. Garcia (1993) 19 Cal.App.4th 97, 103 [condition of probation modified to provide that the defendant is not to associate with persons he knows to be users or sellers of narcotics, felons, or ex-felons].)
Although the Attorney General has asserted otherwise, the modification made by the Court of Appeal is entirely consistent with the potential modification of an injunction prohibiting association with gangs that we endorsed in Acuna, supra, 14 Cal.4th1090. In Acuna, the Court of Appeal concluded that a provision of the injunction forbidding association with any other known [named gang] member could be construed to apply when a defendant engaged in one of the prohibited activities with someone known to the police ― but not known to the defendant ― to be a gang member, and thus was unconstitutionally vague. We advised that in order to enforce the injunction, the local entity would have to establish a defendants own knowledge of his associates gang membership to meet its burden of proving conduct in violation of the injunction. (Id. at p. 1117.) We suggested that the element of a defendants knowledge fairly was implied in the injunction, and if any attempt were made to enforce that provision, the trial court could limit its construction by inserting a knowledge requirement. With that minor emendation, the text . . . passes scrutiny under the vagueness doctrine. (Id. at pp. 1117-1118.)
In the present case, the Court of Appeal did just that inserting the qualification that defendant have knowledge of who was disapproved of by her probation officer, and thus securing the constitutional validity of the probation condition. In the interest of forestalling future claims identical to defendants based upon the same language, we suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone known to be disapproved of by a probation officer or other person having authority over the minor.
III
The court having received a certified copy of the death certificate of defendant Sheena K. during the pendency of this appeal, all proceedings in this case must be permanently abated. The cause is remanded to the Court of Appeal, Second Appellate District, Division Two, with directions to enter an order in case No. B167626 permanently abating all proceedings with respect to defendant and requiring the Superior Court for the County of Los Angeles to enter an order to that effect in case No. KJ19106. (People v. Dail, supra, 22 Cal.2d 642, 659; People v. Bandy (1963) 216 Cal.App.2d 458, 466.)
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Sheena K.
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Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 116 Cal.App.4th 436
Rehearing Granted
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Opinion No. S123980
Date Filed: March 15, 2007
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Court: Superior
County: Los Angeles
Judge: Daniel S. Lopez
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Attorneys for Appellant:
Edward H. Schulman, under appointment by the Supreme Court, and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
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Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte, Donald E. De Nicola, Jamie L. Fuster and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Edward H. Schulman
9420 Reseda Boulevard, #530
Northridge, CA 91324
(818) 363-6906
Yun K. Lee
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2051
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line Lawyers.
[1] The Attorney General asserts that the rehabilitative and reformative goals of juvenile dependency law especially that of instilling accountability in juvenile offenders will be promoted by requiring that a minor object to a probation condition in the juvenile court rather than accede to the condition in the belief the condition may be challenged on appeal. The laudable goals of the juvenile dependency law do not outweigh the more general goal of the justice system to protect the constitutional rights of adults and minors. It also is doubtful whether the goals of the juvenile justice system to reform and rehabilitate the minor would be advanced to any significant degree by imposing upon the minors counsel the responsibility to object in the juvenile court in order to preserve claims on appeal.
[2] Our conclusion that Welchs forfeiture rule should not extend to a facial challenge to the terms of a probation condition on constitutional grounds of vagueness and overbreadth is consistent with principles cited in several appellate decisions that have reviewed certain types of claims despite forfeiture by the parties. In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that courts discretion. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 (Williams); see S.B., supra, 32 Cal.4th at p. 1293; In re Wilford J. (2004) 131 Cal.App.4th 742, 754; In re Charles T. (2002) 102 Cal.App.4th 869, 873; 6 Witkin & Epstein, Cal. Criminal Law, supra, 36, p. 497.) Thus, an appellate court may review a forfeited claim and [w]hether or not it should do so is entrusted to its discretion. (Williams, at p. 162, fn. 6; cf. S.B., at p. 1293, discussed below.)
The appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right. (6 Witkin & Epstein, Cal. Criminal Law, supra, 36, p. 497; id., (2006 supp.) 36, p. 115; see,e.g., People v. Marchand (2002) 98 Cal.App.4th 1056, 1061 [the appellate court in its discretion decided a forfeited challenge to the constitutionality of penal statutes]; People v. Brown (1996) 42 Cal.App.4th 461, 471 [the appellate court exercised discretion to decide important issues of constitutional law despite forfeiture].) The appellate courts occasionally also have invoked their discretion to review an apparent constitutional issue when applicability of the forfeiture rule is uncertain or the defendant did not have a meaningful opportunity to object at trial. (See, e.g., People v. Peck (1996) 52 Cal.App.4th 351, 361-362, fn. 5 [the applicability of the forfeiture rule to constitutional challenges not having been decided, the appellate court in its discretion considered the merits of the claim that probation conditions impermissibly burdened the defendants constitutional rights to freedom of association and religion]; People v. Hackler (1993) 13 Cal.App.4th 1049, 1052, 1054-1057 [the trial court having failed to provide advance notice or to grant a continuance and having itself solicited appellate review of the validity of the probation condition, the appellate court considered on the merits the claim that a probation condition requiring defendant to wear a court-supplied T-shirt stating: My record plus two six-packs equals four years, and I am on felony probation for theft was unconstitutional]; see also In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 537 [the trial court having ordered in the absence of statutory authorization the AIDS testing of a minor involved in a drive-by shooting, the appellate court reiterated but declined to apply the rule of forfeiture because defense counsel had little chance to react and was utterly surprised by the order].)
Our conclusion also is consistent with our observation that in a child dependency action, an appellate court may consider a claim raising an important question of law despite the appellants failure to raise the issue in the trial court, but discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] (S.B., supra, 32 Cal.4th at p. 1293 [exercising discretion to consider issue of law involving the juvenile courts delegation to legal guardians of authority to determine visitation by the minors mother].) In addition, our holding is in accord with the limited exception for constitutional claims initially raised on appeal when closely related to claims raised at trial regarding the admission or exclusion of evidence to the established rule that a forfeited claim of trial court error in admitting or excluding evidence is not subject to discretionary appellate review. (People v. Partida (2005) 37 Cal.4th 428, 437-439; Williams, supra, 17 Cal.4th at pp. 161-162, fn. 6.)
[3] In view of that conclusion, it is unnecessary to decide whether, as held by the Court of Appeal, the probation condition also is unconstitutionally overbroad.
