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In re Christina M.

California Court of Appeals, Fifth District
Jul 8, 2008
No. F054774 (Cal. Ct. App. Jul. 8, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. JW098170-01, Peter A. Warmerdam, Juvenile Court Referee.

Kristen Elizabeth Owen, 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, Barton Bowers and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Cornell, Acting P.J., Gomes, J., and Kane, J.

Pursuant to a negotiated disposition, appellant Christina M., a minor, admitted allegations that she committed the following offenses: assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), dissuading or attempting to dissuade a witness from testifying by means of force or threat of force (Pen. Code, § 136.1, subd. (c)(1)) and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). Subsequently, following the disposition hearing, the court adjudged appellant a ward of the court, placed her on probation for a period to expire no later than her twenty-first birthday, vested appellant’s care and placement with the probation department, ordered her detained in juvenile hall pending placement, and imposed various terms and conditions of probation, including that appellant “[not] possess, use or consume any drug, intoxicant, or inhalant, nor associate or initiate contact with anyone known to the minor to be involved in the same.” We refer to this condition of probation as the drug condition.

We quote the drug condition as it is set forth in the juvenile court’s written order. The court’s oral pronouncement of the drug condition was identical, with the exception that the court omitted the mention of inhalants. We assume this omission was inadvertent, and we conclude the drug condition actually imposed by the court is that set forth in its written order.

On appeal, appellant’s sole contention is that the drug condition is unconstitutionally vague and overbroad. As we explain below, we will construe the challenged condition in the manner accepted by the parties, and on that basis affirm.

DISCUSSION

Appellant contends the drug condition is unconstitutionally vague and overbroad because, she asserts, it (1) prohibits her from taking medications prescribed by a physician and over-the-counter medications as directed for health-related purposes, and (2) infringes on her First Amendment right of free association by prohibiting her from associating with other people who legally take prescription and over-the-counter medications. To remedy these defects, appellant argues, the drug condition should be modified to provide that she not illegally possess, use or consume any drug, intoxicant or inhalant, nor associate or initiate contact with anyone she knows to be involved in such activities.

The People first counter that appellant forfeited her claim because she failed to raise it below. We disagree. As a general rule, the failure to object, at the time the probationary conditions are imposed, waives a claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) However, this rule does not extend to a facial challenge to a probation condition on constitutional grounds of vagueness and overbreadth where the issue presents a pure question of law that can be corrected without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 887-889.) Appellant raises such a challenge here. Therefore, her claim is not waived by her failure to raise it below.

We turn now to the merits of appellant’s argument. As indicated above, the major premise of appellant’s claim is that the drug condition prohibits both illegal and legal drug use, and prohibits association with persons who use drugs both legally and illegally. This premise is false.

On this point we find instructive People v. Kwizera (2000) 78 Cal.App.4th 1238. In that case, the defendant challenged the imposition of “probation condition 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.)

Thus, the court declined to interpret the challenged condition in an irrational manner. We will do the same here. 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 prescribed by a physician, and we will therefore interpret the drug condition as limiting appellant’s conduct with respect to the illegal use and possession of drugs. The People interpret the condition in this manner, and appellant, in her reply brief, states she “can accept this approach ….” Accordingly, we will interpret the drug condition to provide as follows: Appellant shall not illegally possess, use, or consume any drug, intoxicant, or inhalant, nor associate or initiate contact with anyone that she knows to be involved with or in possession of same. As the parties agree, as construed in this manner the drug condition is neither unconstitutionally overbroad or vague.

DISPOSITION

The judgment is affirmed.


Summaries of

In re Christina M.

California Court of Appeals, Fifth District
Jul 8, 2008
No. F054774 (Cal. Ct. App. Jul. 8, 2008)
Case details for

In re Christina M.

Case Details

Full title:In re CHRISTINA M., a Person Coming Under the Juvenile Court Law. THE…

Court:California Court of Appeals, Fifth District

Date published: Jul 8, 2008

Citations

No. F054774 (Cal. Ct. App. Jul. 8, 2008)