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In re B.R.

California Court of Appeals, Second District, Seventh Division
Apr 7, 2009
No. B209802 (Cal. Ct. App. Apr. 7, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. TJ17206, Charles Scarlett, Judge.

Steven A. Torres, 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, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.


JACKSON, J.

INTRODUCTION

The minor, B.R., appeals from the juvenile court’s order declaring him a ward of the court and ordering him into suitable placement after finding he committed battery and second degree burglary. The minor contends the court erred in failing to determine whether the burglary was a felony or a misdemeanor, four of his probation conditions are overbroad, and two other probation conditions, at variance with the court’s oral pronouncement, were erroneously included in the minute order of the disposition hearing.

Because we conclude the minor’s contentions have merit, we reverse the disposition order and remand for the juvenile court to conduct a new disposition hearing.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2008, police detained the minor, then 12 years old, for battery after he had punched another student and attempted to take the student’s backpack while walking home from school. On March 10, 2008, the People filed a Welfare and Institutions Code section 602 (section 602) petition against the minor for misdemeanor battery (Pen. Code, §§ 242, 243).

Weeks later, the minor was detained for stealing items from a backyard shed, resulting in the filing of a second section 602 petition on June 2, 2008 for first degree burglary, which was later amended to allege second degree burglary.

At the June 19, 2008 jurisdiction hearing, the juvenile court (Juvenile Court Referee S. Robert Ambrose) found the minor had committed second degree burglary as alleged in the second petition. The court sustained the petition.

At the June 23, 2008 hearing, the minor admitted he had committed misdemeanor battery as alleged in the first petition. The two petitions were consolidated for disposition, and the juvenile court (Judge Charles Scarlett) adjudicated the minor a ward of the court, subject to certain terms and conditions of probation, and ordered him into suitable placement. The minor’s maximum period of physical confinement was calculated as three years two months.

An amended count 2 of attempted robbery was dismissed on the People’s motion.

The minor’s notice of appeal identifies only the June 19, 2008 order as the order from which he appeals. His appeal, however, challenges the June 23, 2008 order. A notice of appeal is to be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 8.304(a)(3).) It has long been the rule that “an incorrectly framed notice of appeal will be construed to refer to the correct appealable order assuming that the intention of the appellant is clear” (Baldwin Park Redevelopment Agency v. Irving (1984) 156 Cal.App.3d 428, 433), and the respondent has not been misled or prejudiced thereby (see Roston v. Edwards (1982) 127 Cal.App.3d 842, 846). We therefore construe the minor’s notice of appeal to refer to the June 23, 2008 disposition order.

DISCUSSION

1. Failure to Declare the Second Degree Burglary a Felony or Misdemeanor

The crime of second degree burglary may be either a felony or a misdemeanor. (Pen. Code, § 461, subd. 2.) When, as here, a minor is found to have committed an offense that would in the case of an adult be punishable either as a felony or a misdemeanor, Welfare and Institutions Code section 702 requires the juvenile court to declare the offense to be a misdemeanor or felony. The requirement “serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion” under the statute. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.) An express declaration is necessary; the juvenile court’s failure to comply with this mandate requires a remand unless the record shows the juvenile court was aware of, and exercised, its discretion to determine the offense to be a felony or a misdemeanor. (Id. at p. 1209.)

In this case, the minute order of the disposition hearing reflects the second degree burglary was a felony, and the juvenile court declared the minor’s theoretical period of confinement on that offense was not to exceed the felony period of three years. However, these factors alone do not satisfy the requirements of Welfare and Institutions Code section 702. (In re Manzy W., supra, 14 Cal.4th at pp. 1207-1209.) Remand is required for the court to make an explicit finding whether the second degree burglary is a felony or misdemeanor.

2. Overbroad Conditions of Probation

Among the minor’s conditions of probation, the juvenile court ordered, “Do not associate with anyone disapproved of by your parents or probation officer” (condition 15); “Do not participate in any type of gang activity” (condition 15A); “Do not have any dangerous or deadly weapons in your possession, nor remain in the presence of any unlawfully armed person” (condition 16); and “Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; and stay away from places where users congregate” (condition 21).

Relying on In re Sheena K. (2007) 40 Cal.4th 875, 891-892, the minor contends these four probation conditions are overbroad because they fail to include an express knowledge requirement. In response, the People refer to the probation conditions as they appear in the probation form and which do provide the necessary knowledge requirement. However, the probation conditions as recited in the minute order must yield to the juvenile court’s oral pronouncement of judgment. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471.) Accordingly, as requested by the minor, we direct the juvenile court to modify probation conditions 15, 15A, 16 and 21, as it previously imposed orally, by adding an express knowledge requirement on the record.

Because a challenge to a probation condition as facially vague or overbroad presents a pure question of law, it is not foreclosed by the failure to object in the juvenile court. (In re Sheena K., supra, 40 Cal.4th at p. 889.)

As part of the minute order from the minor’s disposition hearing, the conditions of probation form checked by the court provided, “Do not associate with anyone known to be disapproved of by parents [and] Probation Officer” (condition 15); “Do not participate in any type of known gang activity” (condition 15A); “Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of anyone known to minor to be unlawfully armed” (condition 16); and “Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where persons whom you know to use illegal drugs or substances congregate” (condition 21). (Italics added.)

As to condition 21, the minor further contends by orally ordering him “not [to] use or [to] possess narcotics” the court is precluding the minor from using legally prescribed medication that he may require for medical reasons, thereby rendering that condition overbroad. According to the minor, condition 21 should therefore be modified on remand to state he is not to use or to possess “illegal narcotics or illegal controlled substances.”

The juvenile court has wide discretion in determining probation conditions and may impose and require any and all reasonable probation conditions that it deems to be fitting and proper. (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.) The record shows the minor admitted to using marijuana on a regular basis since the age of 11 years, and more recently has been consuming alcohol. His mother reported the minor also sniffs paint, which she believes combined with his marijuana use, contributes to his assaultive behavior. While the minor argues he is being denied access to legal prescription narcotics, he points to no evidence in the record of his medical need for such narcotics. And, given the minor’s recent history and extreme youth as a substance abuser, the juvenile court acted within its discretion in fashioning a probation condition to discourage the minor from using narcotics or controlled substance medication, which could be abused. (In re Todd L. (1980) 113 Cal.App.3d 14, 20 [juvenile condition of probation requiring defendant not to use or to possess narcotics or other controlled substances was proper based on minor’s social history].) Thus, “[a] condition of probation which is [legally] impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.” (Id. at p. 19.)

3. Probation Conditions 25 and 28A

We agree with the minor that probation conditions 25 and 28A should not have been checked on the minute order form of the disposition hearing because they were not part of the oral pronouncement of judgment. Condition 25 obligates the minor to “[s]ubmit person, residence or property under his/her control to search and seizure at any time of the day or night by any law enforcement officer, with or without a warrant.” Condition 28A orders the minor to “[m]ake restitution to the Restitution Fund in the amount of $100.00.”

DISPOSITION

The disposition order is reversed to the extent it fails to specify whether the second degree burglary is a felony or a misdemeanor and imposes improper probation conditions. In all other respects, it is affirmed. The matter is remanded to the juvenile court with directions to conduct a new disposition hearing not inconsistent with this opinion, and specifically, (1) to determine on the record whether the second degree burglary offense is a felony or a misdemeanor, (2) to include expressly a knowledge requirement in the minor’s conditions of probation, and (3) to ensure all conditions of probation are stated in both the oral pronouncement of judgment and the minute order of the disposition hearing.

We concur: PERLUSS, P. J., WOODS, J.


Summaries of

In re B.R.

California Court of Appeals, Second District, Seventh Division
Apr 7, 2009
No. B209802 (Cal. Ct. App. Apr. 7, 2009)
Case details for

In re B.R.

Case Details

Full title:In re B. R., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Apr 7, 2009

Citations

No. B209802 (Cal. Ct. App. Apr. 7, 2009)