Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J34530
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant and appellant Brandon S. appeals the juvenile court’s finding that his probation was terminated “unsuccessfully.”
Background
In a prior appeal, In re Brandon S. (Aug. 21, 2007, A116005) [nonpub. opn.] (Brandon I), defendant appealed from the juvenile court’s dispositional order continuing him as a ward of the court after finding he committed three counts of second degree robbery, in violation of Penal Code section 211. Defendant’s sole contention in Brandon I was that the evidence was insufficient to support the robbery allegations. We concluded that “the evidence was sufficient to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed two of the robberies, but not all three.” (Typed opn. p. 1.) On that basis we affirmed the juvenile court’s order in part and reversed it in part.
The dispositional order at issue in Brandon I also directed that defendant be placed on probation and held in juvenile hall pending commitment to a program at the Fouts Springs Youth Facility. In Brandon I, defendant did not appeal his commitment to the Fouts Springs Youth Facility, nor did he appeal any of the terms and conditions attendant to the order of probation, including one stating: “Minor shall remain in placement and obey all reasonable directives of the placement staff and Probation Officer.”
On March 7, 2007, the probation officer filed a petition pursuant to Welfare and Institutions Code section 777, alleging that defendant was “in violation of his juvenile court order in that the minor failed Fouts Springs Youth Facility Program.” The probation officer’s supplemental report filed March 8, 2007, stated that “[t]he minor was removed from Fouts Springs Youth Facility on Tuesday, March 6, 2007, due to his ongoing non-compliant and disruptive behavior, which eventually became a threat to the safety of others. The minor was placed at the program on 12/08/06. Since that time, group counselors and supervisors at the facility report that the minor has needed re-direction of his inappropriate behavior, on a daily basis. Since 12/22/06, the minor has had twelve separate incidents,” including attempting to instigate a fight with another minor; slapping another minor in the face while they were playing dominoes; violating dorm rules by eating food on his bed; disruptive behavior (making a lot of noise during the night to keep other minors awake), as well as various other incidents of disobedient, non-compliant and unruly behavior.
A contested probation revocation hearing was held over April 5 and 6, 2007. At the conclusion of the hearing, the juvenile court stated: “The Court finds that the People have proven substantial rule violations; these rules are reasonable. The Court finds the minor is in violation of his probation in that he was terminated from the Fouts Springs Youth Facility program. His probation is revoked.” At a dispositional hearing on April 24, 2007, the juvenile court terminated defendant’s probation as “unsuccessful[]” and released him from custody after he had spent 32 days in county jail. Defendant filed a timely notice of appeal on April 25, 2007.
Discussion
Defendant’s sole contention is that the condition of probation requiring him to “remain in placement and obey all reasonable directives of the placement staff” is unconstitutionally vague because it “offered no reasonable certainty to Brandon as to when he might violate the condition.” Respondent asserts that defendant forfeited this claim on appeal by failing to raise it in the trial court, and that if it is not forfeited, it lacks merit. We reject defendant’s contention on the merits.
A. Forfeiture
In In re Sheena K. (2007) 40 Cal.4th 875, our Supreme Court “granted review to resolve the conflict among appellate decisions concerning whether the doctrine of forfeiture . . . applies to a challenge to a condition of probation, raised for the first time on appeal, when the challenge is based on the ground the condition is vague or over broad and thus facially unconstitutional.” (Id. at p. 878.) The court noted that “[o]rdinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. . . . ‘The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]’ ” (Id. at pp. 880-881.)
Although there are exceptions to the rule of forfeiture, the court reasoned that “[a]pplying the rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions.” (In re Sheena K., supra, 40 Cal.4th at p. 885.) “In contrast,” however, “an appellate claim—amounting to a ‘facial challenge’—that phrasing or language of a probation condition is unconstitutionally vague and over broad because, for example, of the absence of a requirement of knowledge as in the present case, does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law.” (Ibid.)
Based on this distinction, the court concluded that “defendant’s claim that her probation condition was unconstitutionally vague and over broad was not forfeited by her failure to raise it in juvenile court.” (In re Sheena K., supra, 40 Cal.4th at p. 889.) Nevertheless, the court cautioned that its “conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground” for the first time on appeal. (Ibid.) Rather, the court recognized that “ ‘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.” [Citation.] In those circumstances, “[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” [Citation.]’ ” (Ibid.)
Under Sheena K., therefore, it is apparent that defendant may raise for the first time on appeal the “ ‘facial challenge’—that phrasing or language of a probation condition is unconstitutionally vague.” (In re Sheena K., supra, 40 Cal.4th at p. 885.) Accordingly, we conclude defendant has not forfeited his claim that the term of probation mandating that he “shall remain in placement and obey all reasonable directives of the placement staff and probation officer” is unconstitutionally vague.
Defendant has forfeited any claim that this term of probation is somehow unreasonable. (In re Sheena K., supra, 40 Cal.4th at p. 882.) Moreover, defendant does not challenge the sufficiency of the evidence underlying the revocation of his probation. In sum, we are concerned here with the narrow legal issue of whether the challenged condition of probation is unconstitutionally vague.
B. Vagueness
The California Supreme Court observed in Sheena K. that “[t]he 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 Sheena K., supra, 40 Cal.4th at p. 889.) Moreover, because “ ‘ “[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment . . . 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.” ’ ” (Ibid.)
With that in mind, we also note “the underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’ 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.] A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissible 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.]’ [Citation.] 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.” ’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) In particular, to withstand a vagueness challenge, “[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[.]’ ” (Ibid.)
Against the above standards, we must assess this condition imposed upon defendant: “Minor shall remain in placement and obey all reasonable directives of the placement staff and Probation Officer.” Especially in the context of a juvenile court giving direction to its ward, there is nothing vague whatsoever about this condition of probation. When a minor is adjudged a ward of the court, “the court may. . . commit the minor to a juvenile home, ranch, camp, or forestry camp” or place the ward under “the care, custody, and control of the probation officer.” (Welf. & Inst. Code, § 730, subds. (a)-(b).) Additionally, “the court may make any and all reasonable orders for the conduct of the ward . . . [and] 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.” (Welf. & Inst. Code, § 730, subd. (b), italics added.) Viewed against these statutory objectives, the challenged condition here—that defendant obey all reasonable directives of the placement staff and probation officer—does no more than enable the placement staff and probation officer to make those directives that are necessary for effective implementation of the facility’s program of rehabilitation and the supervision of defendant’s compliance with the conditions of the program. The condition cannot be deemed to confer on placement staff or the probation officer unfettered discretion to impose additional conditions unrelated to the facility’s program of rehabilitation. This is because the juvenile court has no power to impose unreasonable probation conditions, and hence cannot delegate such power to the probation officer by means of a general condition of this type. (See People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.) Thus, inherent in the condition at issue is that the placement staff and probation officer, as an officer of the court, will only require defendant to comply with reasonable conditions that promote his reformation under the program. A simple, common sense reading of the words and language of the challenged condition of probation discloses the sufficiency of their meaning to put the minor on notice of what was expected of him—he was to go to placement and follow the rules and regulations there.
Disposition
The juvenile court’s termination of probation is affirmed.
We concur: McGuiness, P.J., Pollak, J.