Opinion
B190592
12-11-2006
In re ANDREW N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANDREW N., Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte, Sarah Farhat, and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.
The minor, Andrew N., appeals from the April 12, 2006 order declaring him a ward of the court (Welf. & Inst. Code, § 602), removing him from the custody of his parents, and suitably placing him. The minors maximum period of confinement was set at three years. The juvenile court sustained the allegation of a petition filed February 3, 2006, charging the minor with second degree burglary of an automobile. (Pen. Code, § 459.) The minor argues the juvenile court improperly imposed an overbroad probationary condition and set his confinement time at the maximum term. We affirm the wardship order.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909; see also In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089 [standard of proof is the same in juvenile proceedings as that required in adult criminal trials]; In re Jose R. (1982) 137 Cal.App.3d 269, 275 [same].) On the morning of February 1, 2006, Yolanda Gomez parked her 2003 Mercedes in the parking lot behind her place of employment. Ms. Gomez locked the car when she left it. At approximately 1 p.m., Ms. Gomez heard her car alarm. When she went outside, Ms. Gomez saw the minor and another youngster inside her car. The minor and the other youngster fled. Ms. Gomez found the passenger window had been lowered. Ms. Gomezs car registration and other documents were missing from the glove compartment. Ms. Gomez called the police. Later the same day, Ms. Gomez saw the minor and the other youngster sitting on the stairs at the apartment behind the parking lot. Ms. Gomez later positively identified the minor after he was detained by the authorities. Ms. Gomez also positively identified the minor at the adjudication hearing.
First, the minor argues that the juvenile court improperly imposed probation condition No. 21, which provides, "Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate." The minor voiced no objection to the condition at the time it was imposed. The minor has forfeited the right to raise this issue on appeal. Defense counsel did not object at the time the conditions were initially imposed. Nor was any objection interposed when the juvenile court announced that the conditions remained in full force and effect. Thus, any contentions concerning the inappropriateness of the conditions are the subject of waiver and forfeiture. The California Supreme Court has held that an adult defendant may not challenge the reasonableness of probation conditions for the first time on appeal except under circumstances not present here. (People v. Welch (1993) 5 Cal.4th 228, 232-238; see In re Abdirahman S. (1997) 58 Cal.App.4th 963, 971.) In People v. Welch, supra, 5 Cal.4th at pages 232-233, the Supreme Court specifically disapproved the contrary holding of In re Jason J. (1991) 233 Cal.App.3d 710, 714, a juvenile proceeding. Jason J. concluded a juvenile could raise issues concerning probation conditions for the first time on appeal. In the decision of In re Josue S. (1999) 72 Cal.App.4th 168, 171-173, we noted the Welch analysis and followed it. (See also People v. Gardineer (2000) 79 Cal.App.4th 148, 150; In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 536-537; In re Abdirahman S., supra, 58 Cal.App.4th at p. 971; but see In re Justin S. (2001) 93 Cal.App.4th 811, 813-816 .) The issues the minor raises have been forfeited.
Notwithstanding such a waiver, we find the condition of probation at issue here was reasonably imposed. Welfare and Institutions Code, section 730, subdivision (b) provides in pertinent part: "When a ward . . . is placed under the supervision of the probation officer or committed to the care, custody, and control of the probation officer, the court may make any and all reasonable orders for the conduct of the ward . . . . The court may 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." The juvenile court enjoys broad discretion to impose conditions of probation that will serve to rehabilitate the minor. (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82, disapproved on another point in In re Jaime P. (Nov. 30, 2006, S135263) ___ Cal.4th ___ [pp.1, 4-13]; In re Josh W. (1997) 55 Cal.App.4th 1, 5; Welf. & Inst. Code, § 730, subd. (b).) That discretion will not be disturbed on appeal in the absence of manifest abuse. (In re Abdirahman S., supra, 58 Cal.App.4th at pp. 968-969; In re Josh W., supra, 55 Cal.App.4th at p. 5; In re Bacon (1966) 240 Cal.App.2d 34, 60, disapproved on other grounds in In re Brown (1973) 9 Cal.3d 612, 624.)
In People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115, the California Supreme Court held: "`A clear and precise enactment may . . . be "overbroad" if in its reach it prohibits constitutionally protected conduct. [Citation.]" (See In re Jason J., supra, 253 Cal.App.3d at p. 714.) The Gallo court set forth two principles to guide an evaluation of a probation condition to determine whether it is unconstitutionally vague: "[A]bstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a laws meaning, giving facially standardless language a constitutionally sufficient concreteness. . . . [¶] The second guiding principle is the notion of `reasonable specificity [citations] or `"`[r]easonable certainty." (People v. Victor (1965) 62 Cal.2d 280, 300, italics added; see also In re Marriage of Walton (1972) 28 Cal.App.3d 108, 116 [statute will not be held void for vagueness `if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources]." (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1116-1117.)
In this instance, the condition that the minor "stay away from places where [drug] users congregate" was reasonably related to the enforcement of those matters as well as his future threat to public safety. The minor had two prior vandalism arrests, served three prior camp community placements, admittedly used marijuana and was a gang member, and was not attending school. The minor had been placed home on probation on September 14, 2005, and was the subject of a bench warrant when he committed the current offense. (See In re Antonio R. (2000) 78 Cal.App.4th 937, 941-942 [condition requiring permission to leave the county is reasonable to prevent criminal behavior related to another county]; In re Todd L. (1980) 113 Cal.App.3d 14, 20 [search condition is reasonable in enforcing drug-related conditions even where there was no evidence the crime was drug or alcohol related].) In addition, our colleagues in the Fourth District Court of Appeal have held that juvenile conditions of probation may be broader than those imposed on adult offenders. The court held, "This is because juveniles are deemed to be more in need of guidance and supervision . . . ." (In re Antonio R., supra, 78 Cal.App.4th at p. 941; In re Byron B. (2004) 119 Cal.App.4th 1013. 1016; In re Frank V. (1991) 233 Cal.App.3d 1232, 1242-1243 ["`[E]ven where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." [Citations.]"].)
The minor argues the condition is overbroad, violates his constitutional due process and privacy rights, and should be amended to include language that he stay away from places "known to him" to be places where drug users congregate. We disagree. It is presumed any effort to enforce the probation condition will only be done so after the juvenile court imposes a knowledge requirement. Moreover, by its own language, the condition does not prohibit constitutionally protected conduct and is reasonably related to the rehabilitative purpose of the juvenile court law. (In re Byron B., supra, 119 Cal.App.4th at p. 1017, quoting In re Frank V., supra, 233 Cal.App.3d at p. 1243;Antonio R., supra, 68 Cal.App.4th at p. 942.)
Second, the minor argues that the juvenile court improperly imposed the maximum term of confinement based on the longest sentence an adult offender could receive. Following the adjudication hearing, the juvenile court imposed a maximum term of physical confinement at three years, which is the longest sentence allowed for an adult who is convicted of second degree burglary. (Pen. Code, §§ 18, 461.) The minor bases his argument on the premise that the confinement violates the holding in Blakely v. Washington (2004) 542 U.S. 296, 301-305. This contention has no merit. (United States v. Booker (2005) 543 U.S. 220, 233-234; People v. Black (2005) 35 Cal.4th 1238, 1257-1262.) We reject defendants argument that People v. Black, supra, 35 Cal.4th at pages 1257-1262, was wrongly decided.
Moreover, as the minor acknowledges, Welfare and Institutions Code section 726, subdivision (c) requires that the juvenile court set the maximum term of confinement as the longest sentence for which an adult could be sentenced for the same offense. Section 726, subdivision (c), provides in pertinent part: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [¶] As used in this section and in Section 731, `maximum term of imprisonment means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code but without the need to follow the provisions of subdivision (b) [mitigating and aggravating circumstances] of Section 1170 of the Penal Code . . . . [¶] . . . [¶] `Physical confinement means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority." (Italics added.) No doubt, Penal Code section 1170, subdivision (b) requires that additional factual findings in aggravation must be found before the upper term may be imposed against an adult. But Welfare and Institutions Code section 726, subdivision (c) requires the juvenile court to impose the longest period of physical confinement without additional fact findings. As a result, the holding in Blakely as it relates to sentence does not apply to California delinquency proceedings.
The wardship order is affirmed.
We Concur:
MOSK, J.
KRIEGLER, J.