Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. JJ15245. S. Robert Ambrose, Juvenile Court Referee.
David L. Polsky, 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, Steven D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
The juvenile court sustained a petition alleging that appellant J.J. possessed cocaine base for sale in violation of Health and Safety Code section 11351.5. The court found that appellant was a person described by Welfare and Institutions Code section 602, adjudged her to be a ward of the court, and placed her on home probation with a maximum confinement period of five years.
Appellant appeals from the orders sustaining the petition and adjudging her to be a ward of the court, contending that three of the probation conditions imposed by the court are unconstitutionally vague and that the minute order must be corrected to remove a condition not imposed by the court. We remand the matter for the court to clarify the probation condition requiring continued attendance at school and to strike or impose the notification condition. We affirm the juvenile court's orders in all other respects.
Facts
On the night of May 15, 2007, police officers observed appellant standing on the corner of Standford and 6th Streets in downtown Los Angeles with three men. She was holding a clear plastic bag containing an off-white substance which resembled and was later determined to be cocaine. The three men left. Police detained appellant and discovered two sandwich-size baggies full of cocaine rocks, with a gross weight of 20 grams. Appellant did not have any paraphernalia to ingest the cocaine.
Based on the quantity of the cocaine and the lack of paraphernalia, Los Angeles Police Officer Rodriguez opined that appellant possessed the cocaine for sale.
Appellant testified on her own behalf, and denied selling or intending to sell the cocaine. She claimed that the three men had given her the baggies to look at and would not take them back. When the police appeared, the men ran. She did not know the men.
By the time of the dispositional hearing in this matter, appellant was 18 years old and living in San Bernardino. She lived with her siblings without a parent present. She was in charge of the siblings. She was attending Los Angeles Trade-Technical College and trying to transfer her classes to San Bernardino.
Discussion
Appellant contends that three of her probation conditions are unconstitutionally vague and overbroad and must be modified. We agree that the school attendance condition requires clarification, at a minimum. We see no error in the curfew or narcotics users conditions.
"'A juvenile court is vested with broad discretion to select appropriate probation conditions. [Citation.] The court may impose any reasonable condition that is "fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced."'" (In re Byron B. (2004) 119 Cal.App.4th 1013, 1015.)
A probation condition is unconstitutionally vague if it "'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) It "'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether if the condition has been violated.'" (Ibid.)
A claim that a probation condition is unconstitutionally vague and overbroad is not forfeited by the failure to raise it in the juvenile court. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
The first condition that appellant contests is the requirement that she be in her residence by 10:00 p.m. She contends that it is vague because it fails to specify the time she is permitted to leave her residence. Appellant is correct that the court did not specify an end time at the hearing. The minute order containing her probation conditions does specify that she may leave her residence at 6:00 a.m., however. A probation condition that otherwise would be deemed vague may be constitutional if the juvenile court offers additional oral or written comments clarifying the condition. (See In re Sheena K., supra, 40 Cal.4th at pp. 891-892; In re Byron B., supra, 119 Cal.App.4th at p. 1018 [upholding probation condition as constitutional when oral pronouncement omitted knowledge requirement but minute order included knowledge requirement].)
The order specifies "Do not be out of residence between 10 p.m. and 6 a.m. except with parental consent."
Appellant contends that there is nothing to show that she was aware of the contents of the minute order, and that she did not have an opportunity to object to the reasonableness of the 6:00 a.m. ending time. A copy of the appellant's brief in this matter was served on appellant. She has now had notice of the condition. Appellant speculates that "[p]erhaps the requirement that she remain inside until 6 a.m. is incompatible with her school or work schedule." If this time is actually incompatible with her schedule, she may raise this issue on remand. If it later becomes incompatible, she may move for a modification in the juvenile court. (Welf. & Inst. Code, §§ 775, 778.)
The second condition that appellant contests is the requirement that she stay away from places where narcotics users congregate. Appellant contends the condition is vague because it does not require that she know that a place is one where narcotics users congregate. We do not agree.
At the dispositional hearing, the court stated that appellant "is to stay away from places where users congregate." Appellant's counsel responded, "In the areas that she knows users congregate." The court replied, "We know the area of 6th and Stanford where users congregate, she is not to congregate. Is there a problem with that, [counsel]." Counsel replied, "No." The court stated, "She has to know that . . . ." The minute order for the hearing states that appellant is to "stay away from places where known users congregate." (Emphasis added.) Appellant again contends that there is nothing to show that she was aware of the contents of the minute order. As we discuss, supra, she is now.
The third condition that appellant contests is the requirement that she stay in school. Appellant was 18, had finished high school and was going to Los Angeles Trade-Technical College at the time of the dispositional hearing. She contends that the following statement by the court is unconstitutionally vague: "[C]ontinue going to school . . . [¶] I don't want you to stop. I want you to keep going to school. [¶] . . . [¶] I want you to do your best in school." We agree.
Respondent contends that appellant's claim does not involve a pure question of law and cannot be resolved without reference to the particular record developed in the court. Respondent concludes that appellant has waived this claim by failing to raise it below. (In re Sheena K., supra, 40 Cal.4th at p. 889.) We decline to find waiver. The only relevant fact in this case is appellant's age. We do not believe that such a fact should bar our review.
Continued school attendance is usually an appropriate probation condition in juvenile cases. (See In re Robert M. (1985) 163 Cal.App.3d 812, 815-816.) The law requires children between the ages of 6 and 18 to attend school full-time. (Ed. Code, § 48200.) Public school is free through high school. Thus, a school attendance requirement is appropriate for children.
Appellant is not a minor and there is no reason to believe that her continued education would be free. Further, there is nothing in the court's condition to suggest how long she must remain in school, what degree she should try to obtain, or whether her attendance must be full-time. Accordingly, this matter must be remanded for a hearing to determine what, if any, school attendance requirement is appropriate for her.
Appellant also contends that another probation condition, shown on the minute order for the dispositional hearing, was not actually imposed by the court and must be stricken or imposed. This condition requires that she notify her probation officer before changing her address, school, or employment. Appellant contends, correctly, that the court did not include this condition during its oral pronouncement and that this condition must be remanded for the juvenile court to impose or strike the condition. Respondent agrees. We agree as well.
Absent any indication in the record of an oral pronouncement, the entry in the minute order is viewed as a clerical error. (See People v. Carter (2003) 30 Cal.4th 1166, 1199.) However, the juvenile court has authority to impose the condition as long as it retains jurisdiction over appellant. (Welf. & Inst. Code, § 775; In re Sheena K., supra, 40 Cal.4th at p. 889.) Thus, the court should either impose or strike the notification condition as part of the hearing on remand of this case.
Disposition
This matter is remanded for a hearing to clarify the probation condition requiring continued school attendance, and to strike or impose the condition requiring notification before changing address, school or employment. The court's orders are affirmed in all other respects.
We concur: MOSK, J. KRIEGLER, J.