Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 52-002980
SIMS, Acting P. J.D.G., who was previously adjudged a ward of the court under Welfare and Institutions Code section 602, appeals following an order modifying probation after he admitted a probation violation. (§ 800 [after a § 602 disposition, minor may appeal from subsequent order as an order after judgment].) D.G. challenges two probation conditions. We shall modify one probation condition and leave the other as is.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On April 12, 2007, D.G. (then age 16) was adjudged a ward of the court for committing a second degree commercial burglary (Pen. Code, § 459), a misdemeanor. The probation report indicated D.G. broke into a locked storage room at school by manipulating the lock with a plastic card. He took several cans of soda from the room and gave them to other students. The probation report indicated D.G. admitted taking the soda but claimed the door was unlocked. D.G. and his mother thought his offense was “no big deal.” D.G. viewed the proceedings as “making a mountain out of a mole hill.”
The juvenile court placed D.G. on probation with various conditions, including that he not use controlled substances without a medical prescription, that he submit to drug/alcohol testing, and that he “not associate with any person deemed undesirable by Probation or [his] parents.”
In January 2008, in response to a petition alleging probation violations, D.G. admitted he tested positive for cannabinoids or marijuana on three occasions in November and December 2007. The court continued probation and ordered that D.G. enroll in an outpatient drug treatment program.
In September 2008, in response to a second petition, D.G. admitted he tested positive for marijuana and methamphetamine on July 21, 2008.
By this time, D.G. had turned 18 (July 26, 2008), had gotten his driver’s license, and his mother had given him a car.
The juvenile court issued an order continuing D.G. as a ward of the court on probation, with all original conditions remaining in full force and effect, and adding as a new probation condition: “Minor ordered not to drive as a term & condition of probation--pursuant to W & I Code.” The minor objected to the new condition, but the court stated, “I am going to order that you not drive. It’s a term and condition of probation. The Court finds it’s reasonably related to the Court’s supervisory function to provide for your safety and the protection of the public. The Court orders this pursuant to the Welfare and Institutions Code. I have considered your age. I have considered the circumstances and the gravity of the situation here. You have recently -- you just made [an] admission where you had methamphetamine. I am being told that that was on one occasion, but there are a number of other violations with marijuana. Some of those since the initial test came to the attention of the Court and the initial circumstances. So I have considered also the previous history and the situation that you are in in terms of making the appropriate adjustment on probation. I believe these orders are consistent with your needs at this point in time and the factors that may lead to your rehabilitation. [¶] So I’m ordering you not to drive. I’ll review that at any time [D.G.’s attorney] puts it... on the calendar. I will take a look at that if things are going well. I would consider it, but just -- you know, it makes no sense at this point in time, [D.G.], for you to not only have the trouble with marijuana and then also have trouble with driving where you get hurt or you hurt somebody else. So I do find that it’s related to your safety and the safety of the public and your adjustment on probation; okay?” D.G. said, “All right.”
DISCUSSION
I. Probation Condition--Association
D.G. contends the probation condition that he “not associate with any person deemed undesirable by Probation or [his] parents” is unconstitutionally vague and overbroad because it fails to state that he must know which persons are deemed undesirable before he may be found in violation.
We agree with D.G. that he may raise this contention despite his failure to raise it in the juvenile court because it presents a pure question of law, capable of correction without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 879, 885 (Sheena K.).) We therefore need not address D.G.’s argument that, if the matter is forfeited, he received ineffective assistance of counsel.
We might question whether D.G. forfeited the issue by failing to appeal when the condition was first imposed in April 2007. However, since the People do not so argue, and since the September 2008 order directed that the original conditions remain in effect, and since attacks on the constitutionality of probation conditions have been allowed outside of direct appeal (In re Allen (1969) 71 Cal.2d 388 [habeas corpus proceedings], disapproved on another ground in Fuller v. Oregon (1974) 417 U.S. 40, 42, fn. 3 [40 L.Ed.2d 642]), we shall consider D.G.’s challenge to this probation condition.
The People agree the probation condition association should be modified. Thus, Sheena K., supra, 40 Cal.4th 875, held a probation condition that the minor “‘not associate with anyone disapproved of by probation’” (id. at p. 878) was unconstitutionally vague and overbroad because it did not require that, in order for the minor to be found in violation of the probation condition, the minor must know which persons were disapproved of by the probation officer. (Id. at p. 892.) The Supreme Court held the defect in the probation condition could be corrected by modifying the probation condition to impose an explicit knowledge requirement, that the minor not associate with anyone “‘known to be disapproved of’” by the probation officer. (Ibid.)
We shall adopt the same remedy in this case and shall modify the probation condition to read that D.G. “not associate with any person whom you know is deemed undesirable by Probation or your parents.”
II. Probation Condition--No Driving
D.G. argues the probation condition prohibiting him from driving is invalid under the “reasonableness” standard of People v. Lent (1975) 15 Cal.3d 481 (Lent). The People maintain the point is forfeited because in the juvenile court D.G. objected, not on the Lent reasonableness ground, but merely on the ground that this case did not fall within one of the statutory bases for license suspension under the Vehicle Code. However, the court understood the objection to challenge reasonableness, because the court expressly referenced the reasonableness standard in imposing the restriction. We shall address D.G.’s contention and shall reject it on its merits.
Lent, supra, 15 Cal.3d 481, held: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (Id. at p. 486, fn. omitted.) Lent held a trial court did not abuse its discretion in conditioning a defendant’s probation on restitution of funds involved in two theft charges, even though the defendant was acquitted on one of the two charges. (Id. at pp. 485-487.) Based in part on evidence produced at the probation hearing, the trial judge believed the defendant had perjured himself. (Ibid.)
Additionally, a juvenile court has more latitude in dealing with minors than a criminal court has with adult defendants. A juvenile 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.” (§ 730, subd. (b).) “[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.” (Sheena K., supra, 40 Cal.4th at p. 889.) Probation for juveniles is an ingredient in their rehabilitation and reformation. (In re Antonio A. (1990) 225 Cal.App.3d 700, 706.)
D.G. argues the driving restriction is invalid because it was not related to his probation violation (using drugs), since there was no evidence he drove while using drugs or while impaired by drugs. D.G. cites In re Christopher W. (1973) 29 Cal.App.3d 777 (Christopher W.), where a juvenile court imposed a driving restriction as a probation condition on a minor adjudicated a ward of the court for possessing marijuana in his school locker. The appellate court, applying the standard later adopted by Lent, supra, 15 Cal.3d 481, struck the probation condition, stating, “the order making appellant a ward of the court was based on a finding of possession of marijuana. The appellant had purchased the marijuana at school, so that a car was not involved in the possession offense. Driving has no relationship to the crime charged and there was no evidence that he drove while using marijuana. Driving itself is not criminal. Although the use of a car might facilitate obtaining marijuana in the future, there is not a reasonable connection between the two, as the drug is apparently available at school. Driving is not reasonably related to future criminality. The condition that the appellant not drive does not serve the statutory ends of probation, and therefore is not reasonable within the meaning of Welfare and Institutions Code section 730. The condition is invalid.” (Christopher W., supra, 29 Cal.App.3d at pp. 783-784.) The appellate court added, however, “this is not to say that the court, in an appropriate case, cannot find that it is necessary for the reformation and rehabilitation of the juvenile, that during the period of probation, he be prohibited from driving a motor vehicle. No such finding was present here.” (Id. at p. 784.)
Such a finding is present in the case before us, despite D.G.’s claim to the contrary. The court expressed concern about D.G.’s pattern of behavior and did not want to see D.G. add to his problems by getting into trouble with driving. D.G.’s offense was not mere possession of drugs (as in Christopher W.), but actual and continuous use of drugs, as reflected in the drug tests. Moreover, D.G.’s drug activity not only violated criminal statutes, it also violated the court-ordered probation condition that he not use drugs. D.G. violated the probation condition not once, but multiple times. He admitted his drug tests showed the presence of (1) cannabinoids or marijuana on November 1, 2007; (2) cannabinoids or marijuana on November 26, 2007; (3) cannabinoids or marijuana on December 11, 2007; and (4) marijuana and methamphetamine on July 21, 2008. Thus, not only did D.G. repeatedly flout the terms of his probation, he displayed an ongoing problem with drugs and escalated his misconduct by adding methamphetamine to the mix.
In re R.V. (2009) 171 Cal.App.4th 239, upheld the use of a GPS tracking device as a juvenile probation condition. The minor’s “history of misconduct and violation of probation conditions made it reasonable for the court to conclude that there was a significant risk that he would reoffend and that close monitoring of his behavior for a limited period [90 days, as requested by the probation department (see id. at p. 245)] was appropriate to his circumstances.” (Id. at p. 249.)
Here, D.G.’s history of probation violations involving drug use, coupled with the intoxicating effect of a newly obtained driver’s license, made it reasonable for the court to conclude there was a significant risk D.G. would reoffend, and the driving restriction was appropriate for the safety of D.G. and the public. Although the court did not expressly limit the time period, the court stated it was open to reconsidering the driving restriction at any time, upon request, if “things [went] well.”
D.G. argues that driving a car would advance his reformation by facilitating his attendance at drug treatment programs. This is not a reason to strike the probation condition.
We see no basis for disturbing the driving restriction imposed as a probation condition.
DISPOSITION
The probation order is modified to state as a probation condition that D.G. “not associate with any person whom you know is deemed undesirable by Probation or your parents.” The juvenile court is directed to forward a certified copy of the modified probation order to the probation authorities. As so modified, the judgment (order) is affirmed.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.