Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. NJ24362 John C. Lawson II, Judge.
Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
The juvenile court sustained a petition alleging that minor committed the offense of soliciting prostitution in violation of Penal Code section 647, subdivision (b), a misdemeanor. The juvenile court declared minor a ward of the court pursuant to section 602 of the Welfare and Institutions Code and placed the minor at home under terms and conditions of probation.
Minor appeals on the ground that the condition of probation requiring appellant to earn a high school diploma is invalid under the due process clause of the Fourteenth Amendment to the United States Constitution.
FACTS
Jesus Hernandez is a Long Beach police officer assigned to vice investigations. On December 26, 2008, at 4:00 p.m., he went to the corner of East Anaheim Street and Ohio Avenue, a high prostitution area targeted by police. Officer Hernandez was driving a car and wearing plain clothes. Two detectives were nearby in another car.
Officer Hernandez noticed minor standing on the corner and looking around. He pulled his car over to within 10 feet of minor and made eye contact with him. They both nodded, and minor went over to Officer Hernandez’s car when Officer Hernandez motioned to him. Officer Hernandez asked minor through the open passenger window whether minor wanted to have some fun. Minor offered his number, but Officer Hernandez said he wanted something fast. When minor asked what that meant, Officer Hernandez said it meant oral copulation. Officer Hernandez told minor he would pay him $60 to $80. Minor said “okay.” A female friend of minor’s came over, but she left after speaking with minor.
Minor went back to Officer Hernandez’s car and got in. They drove around looking for a spot to park, entered an alley, and stopped. Officer Hernandez handed minor $80, and minor took it. Minor began undoing his belt and pants, but Officer Hernandez asked minor if he was “ready to give me oral.” Minor seemed shocked and then said “okay.” Officer Hernandez pretended that he was undoing his belt. At that time he gave the arrest signal to assisting units. Other officers arrived, identified themselves, and placed minor under arrest.
The stipulated testimony of Detective Stephanie Hall stated that she booked the minor and read him his Miranda rights. Minor agreed to waive his rights and speak to police. Minor admitted that Officer Hernandez was going to exchange $80 for oral sex. Minor said he had never been arrested before, nor had he ever exchanged a sexual act for money or goods.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
I. Minor’s Argument
Minor contends that the probation condition requiring him to earn a high school diploma without any proof that he is able to fulfill this requirement results in a condition that is fundamentally unfair. He asserts that the case should be remanded for a new hearing to determine whether minor has the ability to satisfy this requirement.
II. Proceedings Below
After finding the allegation in the petition to be true and finding minor to be a person described in section 602 of the Welfare and Institutions Code, the following exchange occurred: “THE COURT: L., are you a senior? THE MINOR: No, not yet. THE COURT: Have you caught up on all your credits? THE MINOR: Yes, some. THE COURT: When are you gonna graduate? THE MINOR: Not this year, but next. THE COURT: Next year? THE MINOR: Yeah.”
The juvenile court then addressed minor’s attorney, asking if she was ready to move forward. The juvenile court declared minor a ward of the court and placed him under the supervision of the probation department. The juvenile court stated, “Based on the reading of the [probation] report, and the court initially did consider a 725 in this matter, but the court has some concerns at this point in terms of [L.] regarding school, regarding possible drug usage, and also hanging out at night getting truancy tickets and eventually picking up more serious offenses, is the possibility, and also the issue of school also has some concerns to this court.”
Welfare and Institutions Code section 725 allows the juvenile court to place a minor on probation under the supervision of the probation officer without adjudging the minor a ward of the court for a period not to exceed six months.
Addressing the minor directly, the juvenile court stated, “L., I’m getting ready to put you home on probation. Most important thing that you need to understand is that I want you going to school every day, every class. School is very important to me, very important. No drugs, no alcohol, no-also going to order drug testing and that you complete a drug counseling program. And most importantly, you don’t be out there in the streets, L. You’re 17, almost 18. It’s time for you to start thinking about your future. The main thing you need to get done is get a high school diploma so you can get a real job. Do you understand?” The minor replied that he did.
The juvenile court then proceeded to read minor’s conditions of probation. When reading the condition of probation dealing with schooling, the juvenile court stated, “Attend a school program approved by the probation office. Maintain satisfactory grades, attendance and citizenship. You do not drop out of school. You work towards getting that high school diploma.... If that includes catching up credits, you do, but you can’t get anywhere in this world without a high school diploma at least. I’m not going to terminate probation until I know that you’re doing the right thing. Do you understand?” Minor said that he did.
The juvenile court set the matter for a nonappearance progress report in six months, informing the minor that he did not have to come to court, but the juvenile court would get a report about minor. The juvenile court then stated, “L., school, school, school. How far behind are you in your credits?” Minor replied that he needed “to go to 140.” The following exchange occurred: “THE COURT: You need to catch up and get 140? THE MINOR: Yeah. But I already have one something. THE COURT: So are you catching up? THE MINOR: Yeah. THE COURT: Are you going to summer school? THE MINOR: I’m going to adult school, it’s Willow and Redondo. THE COURT: Do it. What are you going to go for, a high school diploma or a G.E.D.? THE MINOR: High school diploma. THE COURT: L., this is your life. I don’t want you sitting in that chair for very long, so you’ve got your-you work hard to catch up and get your high school diploma, and I’ll consider termination earlier than normal. All right. That will be the court’s order.”
In closing, the juvenile court told minor, “All right. Probation will be getting in contact. You’ll get a letter from them. Report, get that high school diploma, do everything else I ordered you, and this will go by quickly. And L., you’re almost 18. This is your responsibility to keep up with everything.”
III. No Error
Respondent argues that minor has forfeited this claim by failing to object below. (People v. Welch (1993) 5 Cal.4th 228, 234-235, 237 [a defendant forfeits the right to appeal the reasonableness of a probation condition by not raising the issue below]; In re Justin S. (2001) 93 Cal.App.4th 811, 814-815 [the holding in Welch applies to juvenile proceedings].) According to minor, the issue he raises is one of law, since it is a constitutional claim rather than an issue relating to the reasonableness of the condition. We believe that minor’s claim is essentially one of reasonableness under the particular facts of his case. (See Welch, supra, at p. 236.) Nevertheless, we will assume for purposes of discussion that minor did not waive the issue, and we address his arguments, which are without merit.
“A juvenile court is vested with broad discretion to select appropriate probation conditions. [Citation.] The court 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.’ ([Welf. & Inst. Code, ] § 730, subd. (b).)” (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) The juvenile court’s discretion is not, however, limitless. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242; People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
We believe the juvenile court did not abuse its discretion or err in this case and that the record shows that the juvenile court did not order minor to obtain a high school diploma as a condition of probation. The juvenile court was clearly counseling minor and giving him an incentive to obtain enough credits to graduate high school. The conditions of probation contained in the clerk’s transcript merely list the standard condition for education, i.e., that minor “[a]ttend a school program approved by the Probation Officer. Maintain satisfactory grades and attendance, and citizenship. Promptly notify Probation Officer of every absence.”
It is true, as minor asserts, that the juvenile court’s oral pronouncement, rather than the minute order, generally constitutes the judgment. However, this is not an ironclad rule. (People v. Smith (1983) 33 Cal.3d 596, 599 [whether clerk’s minutes prevail against contrary statements in reporter’s transcript depends on the circumstances of each case].) The two portions of the record should be harmonized whenever possible. (Ibid; In re Byron B. (2004) 119 Cal.App.4th 1013, 1018 (Byron B.); see also People v. Harrison (2005) 35 Cal.4th 208, 226 [“As a general rule, a record that is in conflict will be harmonized if possible”].)
In Byron B., the juvenile court’s oral ruling stated that the minor was not to have “‘direct or indirect contact with anyone disapproved by parent, guardian, probation officer or staff.’” (Byron B., supra, 119 Cal.App.4th at p. 1015.) The minute order stated that the minor must “‘[n]ot have direct or indirect contact with anyone known to be disapproved by parent(s)/guardian(s)/probation officer, staff.’” (Ibid.) Citing People v. Smith, supra, 33 Cal.3d at page 599, the Byron B. court held that the clerk’s transcript merely clarified a point that was left ambiguous in the reporter’s transcript. The court concluded that the minute order was a correct recitation of the juvenile court’s ruling. Therefore, based on the probation condition as it was recited in the minute order, the challenged condition was neither unreasonable, overbroad, nor vague, as minor had claimed. (Byron B. supra, at p. 1018.) In this case, as in Byron B., the juvenile court’s minute order set out the probation condition. The juvenile court merely sought to encourage the nearly 18-year-old minor to obtain enough credits to finish high school.
In any event, the juvenile court had no indication minor was mentally unable to complete his high school credits, and the minor responded appropriately to all the court’s questions about his progress to that point. The probation report indicates that both minor and his mother assessed his mental health as “good, ” and minor was not a special education student at his high school, which he apparently stopped attending in the 11th grade. Minor told the probation officer he hoped to finish school, but he had problems because his friends could easily convince him to “ditch” school. In addition, minor told the juvenile court he already had over 100 credits. He said he was attending an adult school and would graduate “next year.”
Under the circumstances of this case, the remedy that minor seeks on appeal-a hearing to determine whether he has the ability to achieve the necessary passing grades to complete high school-would be superfluous. The juvenile court’s written order does not specifically require minor to obtain a high school diploma. The standard written condition, which minor does not challenge, already requires him to “[m]aintain satisfactory grades and attendance.” The juvenile court demanded no more. No remand is necessary, and no violation of minor’s right to due process occurred.
DISPOSITION
The order appealed from is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.