Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VJ 36941, H. Shirley, Referee.
James M. Crawford, 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, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant B.P., a male high school student, was found by the juvenile court to have committed misdemeanor sexual battery. Appellant was declared a ward of the court and he was ordered home on probation. The court also set a maximum term of confinement of six months. B.P. appeals, raising as the only issues the legality of one of the conditions of probation and the order setting the maximum term of confinement. We reject the contention about the illegality of the condition of probation and agree that the court could not impose a maximum term of confinement.
FACTS
In light of the issues raised on appeal, we restrict ourselves to a brief summary of the facts.
Appellant and the female victim, E.S., both attended a high school in the City of Pico Rivera. At approximately 4:30 p.m. on October 13, 2008, appellant was playing catch with a friend on the football field when he saw E.S., whom he knew. Appellant walked up to E.S. and they both started walking toward the locker rooms.
Near the entrance to the locker room, appellant grabbed E.S. by the arm and pulled her behind a brick wall; there was no one else nearby. Appellant pinned E.S. to the wall with his body and touched her inappropriately. E.S. screamed and protested and managed to get away a few feet. Appellant again grabbed her, pinned her against the wall, tried to kiss her and again touched her inappropriately. E.S. finally managed to get away before anything else happened.
The defense evidence, consisting primarily of appellant’s testimony, did not deny that an encounter had taken place at the indicated time and place but tried to portray it as largely consensual.
THE CONDITION OF PROBATION
As a condition of probation, the court ordered appellant to “[s]ubmit your person, residence, or property under your control to search and seizure at any time of day or night by any law enforcement officer with or without a warrant.”
Citing People v. Wardlow (1991) 227 Cal.App.3d 360, appellant contends that there is no rational relationship between the condition of probation and the offense for which appellant was convicted. Appellant contends that no “drugs, alcohol, and contraband or weapons were involved in the commission of the offense.” In People v. Wardlow the same condition of probation was imposed that is the subject of appellant’s contention but in that case, unlike this one, the defendant admitted to using narcotics. The gist of the argument is that the instant offense does not involve contraband that might be the object of a search and therefore the condition is unreasonable.
The defense did not challenge this condition of probation in the trial court. While under some limited circumstances failure to object by a minor to a condition of probation does not forfeit the issue on appeal (In re Sheena K. (2007) 40 Cal.4th 875, 885-889), appellant acknowledges that the generally applicable rule is to the contrary. In our view, it is very questionable whether the exception applies. It is of interest, however, whether under the facts of this case imposing a warrantless search as a condition of probation is lawful and appropriate. We therefore address appellant’s contention on the merits.
Broadly put, the exception to the general rule applies when the challenge presents an important question that is a purely one of law and that can be decided without reference to the particular sentencing record. (In re Sheena K., supra, 40 Cal.4th at pp. 888-889.)
Appellant acknowledges that the trial courts have broad discretion in fashioning conditions of probation in proceedings involving juveniles. In this case, as respondent points out, appellant unfortunately has a long history of inappropriate touching and physical violence toward other students, with the result that he has been suspended several times from school. Thus, the trial court was dealing with a juvenile who poses a disciplinary problem. Given appellant’s track record, it is by no means certain that appellant will not engage in aberrant and even criminal conduct in the future. Because no one can predict what forms such activity will take, it is best to be prepared for it. Prompt and energetic action, including a search of appellant’s person, by the authorities is in everyone’s interest. Were the assault on E.S. a one-time event with no previous record of such conduct, this condition of probation might be questionable. But, unfortunately, E.S. is one of several victims of appellant’s uncontrolled behavior. The trial court acted well within the scope of its discretion in imposing this condition of probation.
THE MAXIMUM TERM OF CONFINEMENT
We have previously addressed the matter of an order specifying the term of confinement:
“When a minor is removed from the physical custody of his parent or custodian as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses. (Welf. & Inst. Code, § 726, subd. (c).)
“Appellant was not removed from his mother’s physical custody. This means that the necessary predicate for specifying a term of imprisonment does not exist. The sentencing authority of a court in almost all instances is prescribed by statutory law, as it is in this case. The statute did not empower the court to specify a term of imprisonment and that should have been the end of the matter. Yet, as others courts have done, this court nonetheless specified a term, namely the maximum term. Courts utilizing this technique may have the best of reasons, such as ‘sending a message’ to the juvenile that the transgression was serious. But if the Legislature thought that this should be done, it would have been easy to write the statute to permit this practice. We think it should cease. The criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect. Thus, our order is to strike the specification of a term of imprisonment.” (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
DISPOSITION
The maximum term of confinement set by the trial court is stricken. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J. BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.