Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. PJ45911, Fred J. Fujioka, Judge.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
E.H., a minor, appeals from the order declaring him a ward of the court (Welf. & Inst. Code, § 602) entered following his admission that he possessed a controlled substance, cocaine (Heath & Saf. Code, § 11350, subd. (a)). The juvenile court ordered E.H. placed home on probation. E.H. contends: (1) the juvenile court erred by denying his suppression motion; (2) one of the conditions of his probation is unconstitutionally overbroad; and (3) imposition of a maximum period of confinement was improper because he was not removed from his parents’ custody. We order the challenged probation condition and the maximum period of confinement stricken, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 2, 2010, the People filed a petition under Welfare and Institutions Code section 602 alleging that 16-year-old E.H. possessed a controlled substance, cocaine. (Health & Saf. Code, § 11350, subd. (a).) E.H. filed a motion to suppress evidence (Welf. & Inst. Code, § 700.1). At a hearing on the motion, the following evidence was adduced.
Harald Holcomb was a teacher at Robert H. Louis High School, a continuation school. E.H. was a student at the school. On December 18, 2009, Holcomb was substituting for the principal in his role as “administrator designee.” Approximately 75 students were in attendance that day. Shortly before 8:00 a.m., Holcomb unlocked and opened the only boys’ restroom at the school. There was no fresh “tagging, ” that is, graffiti, at the time. Once or twice prior to 10:00 a.m., he performed another bathroom check, and did not observe any tagging. At approximately 10:45 a.m., Holcomb performed another routine check of the restroom and discovered that someone had tagged the area above the urinals, using a black marker.
To allow monitoring by school authorities, students who entered the restroom were required to sign a roster. The roster for the boys’ bathroom on the morning of December 18, 2009 listed four names, including E.H.’s. Holcomb thought one of the boys who signed the roster might be responsible for the graffiti. He had the boys come to his office.
Holcomb questioned E.H. first. E.H. denied being involved with the tagging. Holcomb asked him to empty his pants pockets. E.H. complied, placing the contents, including his wallet, on a table. According to Holcomb, E.H. turned out his pockets when asked and “didn’t have to be forced or anything.” None of the items in E.H.’s pants pockets connected him with the tagging. Holcomb, who was searching for a marker or similar object, then asked for E.H.’s jacket. Holcomb searched the jacket and found a false pocket. It contained a lighter and cigarettes, which were against school regulations. Holcomb then searched E.H.’s wallet, which was on the table, for “[a]ny other type of paraphernalia that’s not allowed on campus.” Inside the wallet, he discovered a plastic baggy containing a white powder. At that point Holcomb ceased searching and had the office manager call police.
Holcomb was not sure, but believed that the office manager and another teacher eventually questioned the other three boys.
After considering the arguments of the parties, the juvenile court denied the suppression motion. The court concluded it was reasonable for Holcomb to search E.H. for evidence related to the tagging. Once that search disclosed the cigarettes and lighter, the search of the wallet was justified as a search incident to arrest. Alternatively, the search of the wallet was permissible because the discovery of the cigarettes and lighter made it reasonable for Holcomb to “search for further contraband which might have been located in the wallet.”
E.H. subsequently admitted the allegation in the petition that he possessed cocaine. The juvenile court sustained the Welfare and Institutions Code section 602 petition, declared E.H. a ward of the court, and placed him home on probation. E.H. appeals.
DISCUSSION
1. Suppression motion.
a. Applicable legal principles
“The denial of a motion to suppress evidence brought in juvenile proceedings is reviewable on appeal from the final judgment, even if the judgment is predicated upon the minor’s admission of the allegations of the petition.” (In re Cody S. (2004) 121 Cal.App.4th 86, 90.) We review the evidence in the light most favorable to the trial court’s ruling and defer to the trial court’s express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (People v. Lomax (2010) 49 Cal.4th 530, 563; People v. Redd (2010) 48 Cal.4th 691, 719; In re Sean A. (2010) 191 Cal.App.4th 182, 186; In re Cody S., supra, at p. 90.) We affirm the trial court’s ruling if it is correct on any theory of law applicable to the case, even if for reasons different than those given by the trial court. (People v. McDonald (2006) 137 Cal.App.4th 521, 529; In re Cody S., supra, at pp. 91-92, fn. 4.)
The Fourth Amendment protects public school students against unreasonable searches and seizures, and students have a legitimate expectation of privacy in their persons and in the personal effects they bring to school. (New Jersey v. T.L. O. (1985) 469 U.S. 325, 333-334 (T. L. O.); In re Sean A., supra, 191 Cal.App.4th at p. 186; In re Cody S, supra, 121 Cal.App.4th at p. 91.) However, “strict application of the principles of the Fourth Amendment as used in criminal law enforcement matters does not appropriately fit the circumstances of the operation” of the public schools. (In re Sean A., supra, at p. 186.) Because a “student’s legitimate expectation of privacy must be balanced against the school’s obligation to maintain discipline and to provide a safe environment for all students and staff, school officials may conduct a search of the student’s person and personal effects based on a reasonable suspicion that the search will disclose evidence that the student is violating or has violated the law or a school rule. ‘Reasonable suspicion’ is a lower standard than probable cause. Ultimately, the legality of the search ‘depend[s] simply on the reasonableness, under all the circumstances, of the search.’ ” (In re Cody S., supra, at pp. 91-92, fns. omitted; T. L. O., supra, 469 U.S. at p. 341; In re K.S. (2010) 183 Cal.App.4th 72, 78; In re Lisa G. (2004) 125 Cal.App.4th 801, 805.)
Thus, determining the reasonableness of a search involves “a two-fold inquiry: (1) whether the search was justified at its inception, and (2) whether the scope of the search, as actually conducted, was reasonably related to the circumstances that justified the initial search. [Citation].” (In re Lisa G., supra, 125 Cal.App.4th at p. 805; T. L. O., supra, 496 U.S at p. 341.) A search is justified at its inception if there are reasonable grounds for suspecting the search will disclose evidence the student has violated or is violating the law or school rules. (T. L. O., supra, at pp. 341-342; In re Lisa G., supra, at p. 806.) “ ‘There must be articulable facts supporting that reasonable suspicion. Neither indiscriminate searches of lockers nor more discreet individual searches of a locker, a purse or a person... can take place absent the existence of reasonable suspicion. Respect for privacy is the rule––a search is the exception.’ [Citation.]” (In re Lisa G., supra, at p. 806, citing In re William G. (1985) 40 Cal.3d 550, 564.) A search of a student may not be predicated on mere curiosity, rumor, or hunch. (In re William G., supra, at p. 564.)
b. Application here.
(i) Search of E.H.’s pockets and jacket.
The juvenile court correctly concluded that the search of E.H.’s pockets and jacket was reasonable under the Fourth Amendment. Holcomb had a reasonable suspicion that a search of the jacket and pockets would disclose evidence that E.H. had violated a school rule, that is, had tagged the bathroom. Holcomb’s testimony established that sometime during the morning of December 18, 2009 a student tagged the bathroom using a black marker. E.H. was one of four students whom Holcomb knew had been in the bathroom that morning, based on the roster. It was reasonable for Holcomb to believe E.H. or one of the other boys was responsible for the tagging, as they were known to have been inside the bathroom at the relevant time. (See generally T. L. O., supra, 469 U.S. at pp. 345-346.)
The searches of E.H.’s pockets and jacket were reasonably related to the circumstances that justified the initial search. Holcomb testified he was looking for a marker or similar writing implement. A search for a marker was, obviously, reasonably related to the circumstances that justified the search, in that E.H.’s possession of a marker, coupled with his presence in the restroom during the relevant time frame, would have strongly suggested he was the tagger. The search was appropriately limited to E.H.’s jacket and pants pockets, locations where a marker could easily be stowed. The search was not extensive and did not involve any touching of E.H.’s person. It was therefore justified at its inception and reasonable in scope, and no constitutional violation is apparent. (See generally In re Cody S., supra, 121 Cal.App.4th at p. 92; In re William V. (2003) 111 Cal.App.4th 1464, 1472.)
E.H.’s arguments to the contrary are not persuasive. He contends that Holcomb’s testimony that students were “constantly... going to the rest room or back and forth” required a finding that “an undetermined, larger number of boys” actually entered the bathroom that morning but failed to sign the roster. Therefore, he posits, it was more likely that one of the boys who failed to observe the rules, and did not sign the roster, committed the tagging. He also points out that the roster did not list specific times, meaning his restroom visit could have taken place before the tagging occurred. We do not believe Holcomb’s testimony required a finding that numerous boys in addition to the four who signed the roster visited the restroom that morning. Holcomb’s testimony was that he periodically checked the bathroom between classes; that “whenever there’s students on the yard, [he had] a next door teacher” watch his classroom; and that it “seem[ed] like” there were lots of students going to the restroom back and forth. The cited portion of Holcomb’s testimony thus addressed his general practices for restroom checks. He did not testify that students failed to sign the roster as a matter of course, or that on the morning in question he observed or knew that students in addition to the four who signed the roster had actually visited the restroom.
But, even assuming other students did use the restroom that morning without signing the roster, that circumstance does not undercut Holcomb’s reasonable suspicion of E.H. It was, of course, possible that the culprit was a student who entered the bathroom without signing the roster. But one could just as well argue that E.H. placed his name on the roster in order to appear compliant with the rules and deflect suspicion from himself. Holcomb was not required to speculate that unidentified persons were responsible. Holcomb knew E.H. and the three other boys had definitely been in the restroom at the relevant time. It was reasonable for him to suspect one of them was the culprit. “[T]he requirement of reasonable suspicion is not a requirement of absolute certainty: ‘sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment....’ [Citation.]” (T. L. O, supra, 469 US. at p. 346.)
(ii) Search of E.H.’s wallet.
The search of E.H.’s wallet presents a more difficult question. Holcomb’s search of the wallet would clearly have been permissible if the wallet could have contained a marker or other evidence of tagging. After discovering the cigarettes and lighter––possession of which violated school rules––Holcomb could also have searched the wallet if he had a reasonable suspicion it contained evidence related to E.H.’s smoking or possession of cigarettes or the lighter. (See T. L. O., supra, 469 U.S. at p. 347 [school official searched student’s purse for cigarettes; upon finding rolling papers, official was justified in further exploration of the purse for marijuana].) A wallet, however, is an unlikely place to find either a marker or evidence related to cigarette smoking. When asked whether he had been searching for a cigarette in the wallet, Holcomb acknowledged that he was searching for “[a]ny other type of paraphernalia that’s not allowed on campus.”
The People contend the wallet search was constitutionally permissible because E.H. consented to it. This contention is not borne out by the record. Assuming arguendo that E.H. consented to emptying his pockets and handing over his jacket for search––a contention we do not necessarily accept––there was no showing he consented to the search of his wallet. Holcomb did not ask for permission to search the wallet, and E.H. did not invite him to do so. To the contrary, Holcomb simply searched the wallet, which was at that point on the table, without consulting or getting permission from E.H. Even if E.H. voluntarily emptied his pockets, including the wallet, that action was not tantamount to a consent that Holcomb look inside the wallet. As a factual matter, therefore, the wallet search cannot be justified as a consent search.
The juvenile court concluded the wallet search was a permissible search incident to arrest. The People, wisely, do not advance this theory on appeal. If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his or her presence, the subject’s arrest does not offend the Fourth Amendment. (Atwater v. Lago Vista (2001) 532 U.S. 318, 354-355; People v. McKay (2002) 27 Cal.4th 601, 607.) In a proper case, once there is probable cause to arrest, it is immaterial that a search precedes the suspect’s arrest. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240; In re Jonathan M. (1981) 117 Cal.App.3d 530, 536.) As explained in In re Lennies H.: “ ‘An officer with probable cause to arrest can search incident to the arrest before making the arrest. [Citations.]’... The fact that a defendant is not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest. [Citations.]” (In re Lennies H., supra, at pp. 1239-1240, fn. omitted.) Here, however, unlike in Lennies H., as far as the record shows E.H. was never arrested for possession of the cigarettes, although he was arrested for possession of cocaine after his wallet was searched. A warrantless search cannot be justified by a hypothetical arrest that did not occur. In Knowles v. Iowa (1998) 525 U.S. 113, the United States Supreme Court “held that the exception for a search incident to a custodial arrest could not be applied where no custodial arrest had occurred.” (People v. McKay, supra, at p. 613, fn. 6.) Thus, assuming without deciding that E.H. could have been arrested for possession of the cigarettes under Penal Code section 308, subdivision (b), he was not. Nothing in the record suggested Holcomb arrested E.H., or intended to have him arrested, for possession of the cigarettes and lighter. He had police summoned only after discovering the cocaine in the wallet. Thus, because E.H. was not in fact arrested for possession of cigarettes, the wallet search cannot be justified as a search incident to arrest.
Penal Code section 308, subdivision (b) provides in pertinent part: “Every person under the age of 18 years who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance shall, upon conviction, be punished by a fine of seventy-five dollars ($75) or 30 hours of community service work.” (But see Pen. Code, § 853.5, subd. (a) [except in the case of specified Vehicle Code offenses, person may be taken into custody for an infraction only if he or she refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint].)
Therefore, the question is whether Holcomb’s discovery of the cigarettes and lighter gave rise to a reasonable suspicion that E.H. was carrying other contraband in the wallet. On this question, we find In re Cody S., supra, 121 Cal.App.4th 86, instructive. In Cody S., the minor’s school received an anonymous telephone call reporting that Cody had a knife in his backpack. The campus safety officer, Stanley, had Cody and the contents of his physical education (P.E.) locker brought to her office. He admitted having a knife in his backpack, where he had left it after a camping trip. Stanley opened a zippered compartment of the backpack and found baggies containing what appeared to be marijuana residue. She opened another zippered compartment and found a knife. In a third zippered compartment, she discovered a baggie of marijuana. She then searched his wallet, which was in the pocket of a pair of trousers in the backpack, and found $190. (Id. at pp. 90-91.) In re Cody S. concluded that the search of the backpack and its contents was constitutionally permissible. The court reasoned that due to the nature of a P.E. locker, Cody had no expectation of privacy therein, and removal of the items did not constitute a search. (Id. at p. 93.) Cody’s admission that he had a knife justified the search of the backpack. (Id. at p. 92.) The court further explained: “The continued search after the discovery of the knife was also justified. Having found both a knife and other contraband, Stanley could reasonably have entertained the suspicion that the minor’s backpack contained additional contraband items in violation of the law or of school rules, or both.” (In re Cody S., supra, at pp. 93-94.) The same is true here.
Cody’s car was also searched. The juvenile court granted Cody’s motion to suppress evidence found in the car because Cody had not consented and the vehicle was not on school grounds. (In re Cody S., supra, 121 Cal.App.4th at p. 91.)
E.H. points us to Phaneuf v. Fraikin (2d Cir. 2006) 448 F.3d 591 (Phaneuf), in support of his contention that the wallet search was unlawful. In Phaneuf, the seniors at a Connecticut high school were about to embark on their senior picnic. In accordance with a pre-announced search, school officials searched Phaneuf’s purse, revealing a package of cigarettes. Phaneuf was over 18 and was legally entitled to possess the cigarettes, but school regulations prohibited possession on school grounds. (Id. at pp. 592-593.) Another student informed school authorities that Phaneuf had stated she possessed marijuana and planned to hide it “ ‘down her pants’ ” during the search. (Id. at p. 593.)Phaneuf was pulled off the picnic bus and taken to the nurse’s office, where she denied possessing marijuana. School officials believed her demeanor indicated she was lying. Phaneuf had a history of disciplinary problems, but not drug possession. Phaneuf’s mother was summoned to conduct a strip search. While waiting for the mother to arrive, the principal again searched Phaneuf’s purse and found the cigarettes, as well as a lighter. (Id. at p. 594.) Phanuef’s mother arrived and objected to the search but was told school officials would call police if she did not cooperate. She, a school official, and Phaneuf went into a small room in the nurse’s office, and Phaneuf’s mother conducted the strip search with the school official behind her. Phaneuf was required to raise her shirt, pull down her bra, drop her skirt, and pull her underpants away from her body. (Ibid.) No marijuana was found. Phaneuf brought a civil suit, alleging violation of her Fourth Amendment and various state law rights.
The Second Circuit concluded the search was not justified at its inception, and therefore violated the Fourth Amendment. (Phaneuf, supra, 448 F.3d at p. 592.) Phaneuf concluded the student tip was insufficient to meet the heightened reasonable suspicion standard applicable to a strip search; Phaneuf’s past disciplinary problems did not involve drug use, and therefore had little bearing on the existence of reasonable suspicion for a highly intrusive search; school officials’ descriptions of the basis for their conclusion Phaneuf was lying were conclusory; and the cigarettes found in Phaneuf’s purse had “such a tenuous connection to the alleged marijuana on her person so as to be of relatively little consequence....” (Id. at p. 599.) In regard to the latter point, the court first questioned whether, based on the record, the cigarette discovery was actually a basis for initiation of events or was merely advanced after the fact as a justification. As particularly pertinent here, the Second Circuit further reasoned: “[T]he district court concluded that the discovery of the cigarettes was the linchpin of this case: that the cigarette generated a ‘heightened level of suspicion justif[ying] the extended level of intrusion necessary to conduct a search of Kelly Phaneuf’s person.’ [Citation.] But the probative force of the cigarette find is limited, at best. Use of tobacco might be barely relevant if the school was interested in Phaneuf’s marijuana use generally. It is of significantly less relevance in evaluating (1) whether Phaneuf brought marijuana to school and (2) whether she was smuggling marijuana in her clothing. The school acted unreasonably in treating all contraband alike: Surely, a discovery of cigarettes cannot alone support a suspicion that a student is carrying a firearm or is bootlegging gin. Without further explanation, the school cannot vault from the finding of one type of (commonly used) contraband, to a suspicion involving the smuggling of another.” (Id. at p. 600.)
E.H. urges that the same logic applies here. In his view, his possession of cigarettes and a lighter could not support a reasonable suspicion he was carrying some other form of contraband in his wallet. He urges that, as in Phaneuf, Holcomb made an impermissible “vault from one contraband finding to another without reasonable suspicion.”
Whether a particular search is reasonable depends on a balancing of “ ‘ “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” [Citation.]’ ” (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1739; In re Cody S., supra, 121 Cal.App.4th at pp. 91-92 [the legality of the search of a student turns on the “ ‘reasonableness, under all the circumstances, of the search’ ”].) As Phaneuf recognized, “ ‘as the intrusiveness of the search of a student intensifies, so too does the standard of Fourth Amendment reasonableness.’ [Citations.]” (Phaneuf, supra, 448 F.3d at p. 597.) “[T]he reasonableness of the suspicion is informed by the very intrusive nature of a strip search, [citation], requiring for its justification a high level of suspicion. ‘What may constitute reasonable suspicion for a search of a locker or even a pocket or pocketbook may fall well short of reasonableness for a nude search.’ [Citation.]” (Id. at p. 596.)
While we would agree that the discovery of the cigarettes and lighter would not have provided the heightened level of suspicion necessary to conduct a strip search of E.H., here a much less intrusive search is at issue. E.H. was already the subject of a search. He was already in the office. His pockets had already been turned out and his jacket searched, actions which, as we have explained, were not constitutionally infirm. His wallet was already on the table. Therefore, the only additional intrusion was Holcomb’s foray into the wallet itself. The search involved no physical touching and no disrobing. Its scope was limited and unlikely to intrude into highly personal property. While it is possible a wallet could contain intimate items, in general wallets contain cash, change, identification, and the like, items which are not sensitive or private.
On the other side of the balance, “[t]he governmental interest at stake is of the highest order.” (In re Randy G. (2001)26 Cal.4th 556, 566.) “ ‘ “When society requires large groups of students, too young to be considered capable of mature restraint in their use of illegal substances or dangerous instrumentalities [to congregate in the public schools], it assumes a duty to protect them from dangers posed by anti-social activities––their own and those of other students––and to provide them with an environment in which education is possible.” ’ ” (In re William V., supra, 111 Cal.App.4th at p. 1471.) Thus, while we consider the question close, balancing the intrusion to E.H.’s legitimate expectation of privacy against the governmental interest at stake, we conclude the search of the wallet was supported by reasonable suspicion. Accordingly, the trial court properly denied the suppression motion.
2. Probation condition.
a. Additional facts.
After the juvenile court denied E.H.’s suppression motion, E.H. admitted possessing cocaine. The juvenile court sustained the petition and placed E.H. home on probation, subject to certain conditions. As relevant here, probation condition 40 provided: “[D]o not loiter in the gang area claimed by [the] Vineland Boys.” E.H.’s counsel informed the court, “my client indicates he lives in the Vineland Boys area, ” and expressed concern that the probation condition meant E.H. could not “hang out [in] front of his own house.” The juvenile court replied: “Exactly. I really don’t want him to. I specifically am saying you can’t loiter in the area. In my view, one of the principal things about being in a gang, you hang out in the territory because mostly it’s boring, as he probably knows, if he’s loitering and hanging out with people who are in the gang, they’re going to try to get him to use drugs and drink. He’s a target. He’s better off if he loiters somewhere else which is great or if he stays inside his house. But it’s my view that loitering is like the principal activity of a gang member because it’s a boring life, and they’re not going anywhere, they’re not doing [anything.]” Defense counsel objected that the condition was overbroad and the equivalent of house arrest, in that E.H. could not “even be in his front yard.” The juvenile court responded, “Yes. [¶]... [¶]... [E.H.], I want to make it clear you can go to the mall and hang out there. [¶]... [¶]... [Y]ou can go somewhere else where there’s no gangs and hang out. [¶]... [¶]... You can go to the beach. It’s not a problem.” In the court’s view, if E.H. was standing in front of his house “[w]ith a bunch of your friends, you’re a target, and I don’t want you to be a target.” E.H. indicated he understood.
b. Discussion.
In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; People v. Perez (2009) 176 Cal.App.4th 380, 383.) A probation condition that imposes limitations on a person’s constitutional rights must be closely tailored to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890; People v. Olguin (2008) 45 Cal.4th 375, 384.) Likewise, a probation condition that forbids conduct that is not itself criminal must be reasonably related to the defendant’s crime or to deter his or her future criminality. (People v. Perez, supra, at p. 383.) Consequently, courts have stricken conditions that are so broad as to prohibit lawful conduct in public places. (Id. at pp. 384-385.) A plurality of the United States Supreme Court has recognized that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” (Chicago v. Morales (1999) 527 U.S. 41, 53, fn. omitted (plur. opn. of Stevens, J.).)
A court may, of course, impose probation conditions to discourage defendants from engaging in gang-connected behavior. (People v. Perez, supra, 176 Cal.App.4th at p. 383.) Here, the probation report indicated E.H. was a gang associate and his brother was a gang member. Additionally, he admitted using alcohol, marijuana, and cocaine. The juvenile’s court’s goal of preventing E.H. from being in contact with gang members was therefore reasonably related to E.H.’s rehabilitation.
However, E.H. argues that the probation condition was overbroad. In his view, it prohibits him from engaging in innocent activities in front of his house, such as waiting for a ride, playing in his yard, or chatting with neighbors, in violation of his constitutional rights to travel and freedom of association. The People counter that the word “loiter” should be understood by reference to the limited definition set forth in Penal Code section 647, subdivision (h). That statute provides in pertinent part: “As used in this subdivision, ‘loiter’ means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.”
The People’s argument is not persuasive. Clearly, the juvenile court did not intend “loiter, ” as used in condition 40, to have the meaning the People suggest, nor did the court explain to E.H. that the condition should be so limited. The court characterized “loiter” as “hanging out, ” not lingering for the purpose of committing a crime. Indeed, the court told E.H. he could “loiter” at other places such as the mall or beach. Certainly, the court was not suggesting that E.H. could linger at the mall or beach with the purpose of committing a crime. Contrary to the People’s argument, a probation condition should be given the meaning that would appear to a reasonable, objective reader. (People v. Olguin, supra, 45 Cal.4th at pp. 382-383.) The dictionary defines “loiter” as “to delay an activity with aimless idle stops and pauses, ” to “dawdle, ” to “hang around, ” to “lag behind, ” and to remain in an area for no obvious reason. (Webster’s Collegiate Dictionary (10th ed. 1996) p. 686, col. 1.) This was clearly the sense in which the court intended the word “loiter” to be understood, and was consistent with its explanation to E.H.
Because condition 40 expressly infringes upon E.H.’s constitutional right to loiter (Chicago v. Morales, supra, 527 U.S. at p. 53), it was required to be closely tailored to the purpose for which it was imposed. (In re Sheena K., supra, 40 Cal.4th at p. 890.) Given that E.H. lives in the area claimed as the territory of the Vineland Boys gang, the probation condition, as described by the court, sweeps too broadly. As E.H. argues, the condition prohibits him from engaging in lawful activities in front of his home, such as waiting for a ride or chatting with non-gang-affiliated neighbors. (See generally People v. Perez, supra, 176 Cal.App.4th at p. 384.) Moreover, the juvenile court’s appropriate concern that E.H. not spend time in front of his home “hanging out” and drinking or engaging in other inappropriate activities with gang members or associates was already addressed in a variety of other, unchallenged probation conditions. For example, other conditions of probation required that E.H. not associate with anyone known to him to be a gang or tagging crew member; not associate with anyone known to be disapproved of by his parents or probation officer; not drink alcohol; not engage in any graffiti or tagging activity; and be inside his residence between the hours of 10:00 p.m. and 8:00 a.m. These conditions adequately addressed the court’s appropriate goals, rendering condition 40 largely duplicative. Accordingly, we order condition 40 stricken.
3. Maximum term of confinement.
At the disposition hearing, the court clerk queried, “What’s the max?” and the prosecutor responded, “Three.” The trial court did not set a maximum term of confinement. Nonetheless, the dispositional minute order contained in the clerk’s transcript indicates a maximum confinement period of three years. As E.H. argues and the People concede, the clerk’s transcript is in error and the maximum term of confinement must be stricken, for two reasons.
Welfare and Institutions Code section 726, subdivision (c) provides that if a minor is removed from the physical custody of his or her parents as the result of an order of wardship made pursuant to section 602, the order shall specify a maximum term of confinement. By its terms, the statute only applies if the minor is removed from the physical custody of his or her parent or guardian. Here, E.H. was not removed from the custody of his parents, and the May 25, 2010, minute order setting a maximum term of confinement was in error. (In re Ali A. (2006) 139 Cal.App.4th 569, 573; In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
Additionally, the juvenile court did not orally impose a maximum term of confinement. Where a minute order or abstract of judgment differs from the court’s oral pronouncements, the minute order does not control and any discrepancy is deemed to be the result of clerical error, which may be corrected by this court. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; People v. Price (2004) 120 Cal.App.4th 224, 242; People v. Zackery (2007) 147 Cal.App.4th 380, 385; People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1.) Accordingly, we order the maximum term of confinement stricken from the May 25, 2010, minute order.
DISPOSITION
Probation condition 40 and the three-year maximum term of confinement are ordered stricken. In all other respects, the judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.