Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J08-01525
Haerle, J.
I. INTRODUCTION
Appellant appeals from a portion of the dispositional order of the Contra Costa Juvenile Court entered verbally at a hearing held on March 2, 2009 (hereafter March 2), contending that the court’s verbal modification of—or addition to—the probation conditions imposed on appellant was, at least in one respect, too vague. We agree and hence modify the juvenile court’s order.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant, age 17 at the time of the relevant offense, was detained by the Contra Costa County juvenile authorities for a burglary he and a companion both admitted committing in a neighboring home in Oakley in August 2008.
On September 17, 2008, the Contra Costa District Attorney filed a single count petition pursuant to Welfare and Institutions Code section 602, alleging one count of first degree burglary under Penal Code sections 459 and 460, subdivision (a).
On November 5, 2008, this petition was amended to add two misdemeanor counts, one of receiving stolen property (Pen. Code § 496, subd. (a)) and one count of trespass and refusing to leave private property (Pen. Code, § 602, subd. (o)).
Pursuant to an agreement between the parties, on January 26, 2009, the court amended the receiving stolen property count to make it a felony (to which appellant then admitted) and dismissed the remaining counts.
The record before the court (which we will summarize in abbreviated fashion) established that appellant has had a troubled youth. He has been receiving children’s mental health services since age five. At around that point in time, according to the probation report, he had been diagnosed with “Attention Deficit Hyperactivity Disorder, as well as Aspergers, a high-functioning form of autism,” as well as “Developmental Coordination Disorder, mood disorders, and Pervasive Developmental Disorder.” He first became involved with Welfare and Institutions Code section 5150 (section 5150) issues when his behaviors included running away from home and falsely reporting that his mother was kidnapping him. At age 10, he was referred to child services for brandishing a weapon, and later for burglary, vandalism and arson at a school. Two years later, at age 12, he had two more section 5150 evaluations after running away from home again several times; probation was “vacated” in April 2003. And then there were various and sundry other problems resulting in assignments to special mental health and educational program services, but with unsatisfactory results apparently throughout the period 2004 through early 2008.
At the time of the sustained offense, i.e., August 2008, appellant was a special education student in the 12th grade and in counseling, albeit apparently relatively “stabilized” and off his medications.
At the dispositional hearing on March 2, the court adjudged appellant an indefinite ward of the court, to be supervised by probation from the home of his mother, and imposed various conditions of probation. The court found that the maximum period of confinement was three years.
At that hearing, the court had before it the probation report with its various recommended, written conditions. The court then verbally articulated what one of these conditions required, stating, several times, that the condition meant “at the very least... doing his best at school.” Appellant’s counsel specifically objected to that articulation of the schooling condition, but the court did not retract it. Three days later, appellant filed a notice of appeal from the dispositional order on the same grounds.
III. DISCUSSION
Appellant contends the trial court’s various verbal articulations of the “doing his best at school” probation condition are all unconstitutionally vague and hence should be stricken. He also contends that that condition is “fundamentally unfair because it requires that appellant maintain a behavioral standard that may be beyond his capability.” We agree with the first contention, and thus order the verbal addition noted above stricken. As a result, we do not need to reach appellant’s second contention regarding the same verbal “add on” to appellant’s probation condition.
If, as appears possible from appellant’s briefs to us, appellant is making a separate and distinct argument, e.g., that appellant did not have the inherent capacity to meet the court’s requirement of “school performance,” that argument is clearly waived because nothing remotely close to this was asserted by appellant’s counsel at the March 2 hearing. (See In re Sheena K. (2007) 40 Cal.4th 875, 883, fn. 4 (Sheena K.), & In re Justin S. (2001) 93 Cal.App.4th 811, 814.)
Our Supreme Court articulated the applicable rule quite thoroughly just a few years ago in Sheena K.: “As we have explained on other occasions, the underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’ [Citation.] The vagueness doctrine bars enforcement of ‘“a statute which 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.” [Citation.]’ [Citation.] A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘“reasonable specificity.”’ [Citation.] [¶] A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] 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. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890; see also People v. Turner (2007) 155 Cal.App.4th 1432, 1435-1437 (Turner).)
As regards appellant’s schooling, the written probation conditions of March 2 are not ambiguous and perfectly appropriate. They require appellant to: “Attend school regularly & obey school authorities” and then, in handwriting at the end: “No unexcused absences or tardies. No behavior issues at school resulting in suspension or expulsion.”
These written conditions were reapproved a week later by the same court.
It was, as both parties’ briefs make clear, the court’s verbal interpretations of these conditions at the March 2 hearing which are the source of the problem. The first such was that appellant “do your best at school.” When, a few minutes later, after appellant’s counsel objected that this was “constitutionally vague and over broad,” the court tried to clarify what it meant; however, in our view it failed to do so. It said: “To do his best, at the very least that would include excellent attendance, no unexcused absences or tardies, and making his own best efforts.” (Emphasis added.)
A few minutes later, the court essentially repeated this “clarification,” stating: “By the way, so the order is very clear as to school, doing his best at school at the veryleast includes no unexcused absences or tardies, and no behavioral problems such that they would result or do result in a suspension or expulsion. That’s a very precise order.” (Emphasis added.)
Appellant’s counsel promptly stated: “I disagree” to which the court responded: “Okay. That’s fine.”
But, in our opinion, it was not. Left in place was the quite vague and ambiguous term “doing his best at school.” That phrase was not effectively modified by the court subsequent additional words (“excellent attendance... no unexcused absences... no behavioral problems such that they... result in a suspension or expulsion”), because the key words objected to by appellant’s counsel, i.e., “do his best at school” was not changed, but only highlighted, by the court’s later use of the phrase “at the very least.” But modifying “do your best” by then explaining what it means “at the very least” does not vitiate the inherent vagueness in “do his best at school.” To the contrary: the use of the “at the very least” phrase clearly meant that more, possibly much more, was intended by the “do your best” phrase. Therefore, theoretically at least, an overly-aggressive probation officer, or someone determined to motivate such an officer, could contend that, even though there were no unexcused absences or tardinesses or behavior problems resulting in a suspension or expulsion, appellant was not in some other respect “doing his best at school” by, e.g., not getting good enough grades, not paying close enough attention in class, not being polite enough to his teachers, not keeping his locker in neat enough shape, etc. We thus conclude that the court’s verbal additions to the otherwise perfectly reasonable and acceptable written probation terms proffered by the probation department were both unnecessary and too vague and ambiguous for continued inclusion in appellant’s probation conditions.
We believe the People incorrectly interpret the court’s “clarification.” Per their brief to us, the court “subsequently clarified the condition to require that appellant regularly attend school and be of good conduct.” But the “at the very least” phrase strongly implies that much more might well be required. We thus disagree with respondent’s contention that the court only articulated a “minimal level of compliance” in its verbal statements at the hearing.
As the Turner court noted: “We have the power to modify a probation condition to render the condition constitutional. (Sheena K., supra, 40 Cal.4th at p. 892.)” (Turner, supra, 155 Cal.App.4th at p. 1436.) We agree and accordingly do so here in the concluding section of this opinion.
IV. DISPOSITION
The verbal probation condition stated by the juvenile court on March 2 regarding appellant “doing his best at school” is ordered stricken, but the conditions in the court’s written order of the same date are affirmed. Otherwise, the juvenile court’s judgment and orders are affirmed.
We concur: Kline, P.J., Lambden, J.