Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. JJD061470 Valeriano Saucedo, Judge.
Courtney Michele Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
Appellant Charles R., a minor, was initially adjudged a ward of the juvenile court in September 2007, following his admission that he committed violations of Penal Code sections 415, subd. (3) (disturbing the peace by use of offensive words), a misdemeanor, and 415, subd. (1) (disturbing the peace by fighting), an infraction. The court placed appellant on probation.
In the second wardship proceeding instituted against appellant, in November 2007, following a contested jurisdiction hearing, the juvenile court found true an allegation that he committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)).
In December 2007, at the disposition hearing, the court continued appellant as a ward of the court; continued him on probation, with certain terms and conditions, including that he “[n]ot use, possess, or be under the influence of any alcoholic beverage or illegal or intoxicating substance, or possess any associated paraphernalia”; ordered that appellant reside in the custody of his mother; and declared his maximum term of physical confinement to be five years one month, based on the instant offense and the misdemeanor adjudicated in appellant’s first wardship proceeding. We will sometimes refer to the maximum term of physical confinement as the MTPC.
We refer to this condition of probation as the drug condition. The court imposed this and other probation conditions by stating it “incorporate[d] into the record” orders set forth in a printed form submitted by the probation officer as part of the probation officer’s predisposition report.
On appeal, appellant contends (1) the court erred in declaring a maximum term of physical confinement because the court did not order appellant removed from his parents’ custody, and therefore this court should strike the MTPC, and (2) the drug condition is unconstitutionally overbroad and must therefore be modified. We will strike the MTPC and affirm the judgment as modified.
DISCUSSION
Juvenile Court’s Declaration of the MTPC
Appellant contends, and the People concede, the court erred in declaring a maximum term of physical confinement. We agree.
Welfare and Institutions Code section 731, subdivision (c) provides that when the juvenile court orders a minor committed to the Department of Corrections and Rehabilitation, Juvenile Justice Facilities (DCRJJ), formerly called the Department of the Youth Authority, the court must set “the maximum term of physical confinement[,] … based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court ….” However, a maximum term of physical confinement may not be set when, as in the instant case, a juvenile is placed on home probation in his parents’ custody. (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574.) An order setting an MTPC for a minor committed to the custody of his parents, subject to the supervision of the probation officer is “of no legal effect.” (Id. at p. 574, fn. 2.) Accordingly, the juvenile court erred when it set a maximum term of physical confinement of five years one month for appellant.
Despite their agreement on the existence of error, the parties disagree whether it requires correction. Appellant contends the MTPC should be stricken. The People, relying on Ali A., argue that striking the MTPC is unnecessary. The Court of Appeal in that case rejected a minor’s claim that the physical confinement calculation should be stricken to prevent a judge in a future disposition from mistakenly imposing a maximum sentence based on the juvenile court’s null order. (In re Ali A., supra, 139 Cal.App.4th at pp. 573-574 & fn. 2.) In re Ali A. explained: “In the event the minor violates the terms of his probation, a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his parents' custody. (See Welf. & Inst. Code, § 777.) If that happens, then at that time the juvenile court will have to comply with section 726, [subdivision] (c) and, if applicable, section 731[subdivision] (b) in setting and/or declaring the maximum term of physical confinement. In the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect. Because the minor is not prejudiced by the presence of this term, there is no basis for reversal or remand in this case.” (In re Ali., supra, 139 Cal.App.4th at pp. 573-574, original italics, fn. omitted.) In a footnote the court stated further: “The minor suggests that if this maximum term of confinement is not stricken and he is later committed to the CYA, the judge responsible for that disposition may believe he or she is required to impose the three-year maximum term contained in the present order. We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect.” (Id. at p. 574, fn. 2.)
We agree with the People that the striking of the MTPC is not strictly necessary, but we also believe appellant is entitled to a dispositional order free of any directive that is “of no legal effect.” (In re Ali A., supra, 139 Cal.App.4th at p. 574, fn. 2.) Therefore, we believe the better practice is to strike the portion of the disposition order setting the MTPC. We will do so.
The Drug Condition
As indicated above, under the drug condition, appellant may “[n]ot use, possess, or be under the influence of any alcoholic beverage or illegal or intoxicating substance, or possess any associated paraphernalia ….” (Italics added.) Appellant argues that a medicine prescribed by a physician could be an “intoxicating substance,” and therefore, because the drug condition proscribes the legal possession and use of prescription medicines, it is overbroad, in violation of his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution.
As best we can determine, appellant bases this claim on the following principle: “‘Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn. To the extent it is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.’” (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.)
The People point out, correctly, that appellant cites no authority that supports the proposition that he has a due process right, or any right under the United States Constitution, to take legally prescribed medicines. The People also argue that appellant has forfeited his right to challenge the drug condition by failing to raise his challenge below.
In his reply brief appellant refers to “his constitutional rights to be free from overbroad restrictions.” In support of this claim he cites In re Sheena K. (2007) 40 Cal.4th 875, 890. However, this case provides no support that there exists such a right under the United States Constitution. Rather, Sheena K. merely states the principal, set forth above in slightly different language, that “[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Ibid.)
We will assume without deciding that appellant’s claim is properly before us. However, even so, we need not address appellant’s constitutional claim because, as we explain below, it is based on a faulty premise, viz., that the drug condition forbids appellant from using or possessing medicine legally prescribed by a physician.
On this point we find instructive People v. Kwizera (2000) 78 Cal.App.4th 1238. In that case, the defendant challenged the imposition of the probation condition designated “6.f,” which directed that he “‘[f]ollow such course of conduct as the probation officer may prescribe.’” (Id. at p. 1240.) In rejecting appellant’s argument, the court stated: “The phrase ‘follow such course of conduct as the probation officer prescribes,’ as used in condition 6.f is reasonable and necessary to enable the department to supervise compliance with the specific conditions of probation. It does no more. Since the court does not have the power to impose unreasonable probation conditions, it could not give that authority to the probation officer through condition 6.f. … [T]he trial court has authority to empower the probation department with authority to supervise the probation conditions. Condition 6.f does not … authorize the probation officer to irrationally tell a defendant ‘to jump,’ as defense counsel fears.” (Id., at pp. 1240-1241, italics added.)
Thus, the court declined to interpret the challenged condition in an irrational, manner. We will do the same here. It is clear from the context that in imposing the drug condition the court meant to direct that appellant, as a condition of probation, not illegally possess and/or use, among other things, “intoxicants.” Just as the Kwizera court did not interpret the challenged condition as meaning that a probation officer could irrationally tell the probationer “to jump,” we will not presume that the juvenile court meant to prohibit appellant from taking, for example, medicine legally prescribed by a physician. Accordingly, we will construe the drug condition to provide that appellant must not illegally use, possess, or be under the influence of any alcoholic beverage or controlled or intoxicating substance, or possess any associated paraphernalia. As construed in this manner, the drug condition is not unconstitutionally overbroad.
DISPOSITION
The maximum term of physical confinement of five years one month set by the court is stricken. As modified, the judgment is affirmed.