Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. J212668 Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
Minor admitted an allegation that he committed the misdemeanor offense of driving a vehicle without a license. (Veh. Code, § 12500, subd. (a).) The juvenile court, pursuant to its discretion under Welfare and Institutions Code section 725, subdivision (a), placed minor on summary probation with various terms and conditions without declaring him a ward of the court. After minor failed to abide by the terms of his summary probation, the juvenile court declared him a ward of the court and ordered minor continued on formal probation with additional terms and conditions. Minor appeals, contending the court erred in failing to provide him with an evidentiary hearing on the alleged violations of probation, failing to require the preparation of a social study report to aid in the court’s disposition, and that some of minor’s probation conditions are constitutionally infirm. We find that minor forfeited any right to an evidentiary hearing on the probation violations and the preparation of a social study report by failing to object below. We agree, however, that some of defendant’s probation conditions are constitutionally infirm and, therefore, will order those terms modified. In all other respects the judgment below is affirmed.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
An officer initiated a traffic stop on minor while minor was riding a motorcycle. Minor attempted to evade the officer after the officer activated his lights and twice activated his siren. When minor finally yielded, he admitted he attempted to elude the officer because he “didn[’]t want to get caugh[t].” The People filed a Welfare and Institutions Code section 602 juvenile wardship petition alleging minor committed the misdemeanor offenses of evading a police officer (count 1—Veh. Code, § 2800.1, subd. (a)) and driving without a license (count 2—Veh. Code, § 12500, subd. (a)). Minor was additionally cited and charged with the infraction of driving an unregistered vehicle (count 3—Veh. Code, § 4000, subd. (a)(1)).
After minor admitted the truth of the allegation in count 2, counts 1 and 3 were dismissed. Minor stipulated to the police report as a factual basis for his admission. Minor waived the preparation of a social studies report. Minor’s terms and conditions of probation included requirements that he obey all laws (term 1), obey his parents (term 2), notify the probation officer of any intended change of address (term 4), attend school regularly (term 6), and perform 20 hours of unpaid community service (term 9).
A probation report compiled in anticipation of the five-month review hearing indicated that minor had violated numerous terms of his probation. Minor ran away from home twice and had yet to return home on the latest occasion. Minor dropped out of school. Furthermore, minor failed to complete any of his community service hours. The probation officer recommended reinstatement of the original juvenile wardship petition.
At the hearing on the probation violations, the following colloquy occurred between the court and defense counsel:
“[The Court]: The court has before it new terms and conditions. [¶] My intention is to take the minor off informal, summary, probation, place him on formal . . . . [¶] I understand that’s over your objection, [Defense Counsel]?
“[Defense Counsel]: Yes.
“[The Court]: Okay. The court does that, finds that the minor did not successfully complete summary probation, basically just didn’t show up at all, ran away from home, isn’t—isn’t meeting the good-faith spirit of the summary probation terms that were offered. [¶] Minor’s now declared a ward of the court, placed in the custody of his parents, maintained in the home of his parents on the original terms and conditions of probation dated March 15th. [¶] The court adds terms 11 through— [¶] . . . [¶] . . . 26, orders the parents to participate in family counseling, parent education or any other type of treatment service that would be of benefit to the minor and the family. [¶] . . . [¶]
“[Defense Counsel]: Just for the record, the defense is objecting to the additional terms.”
The above quoted passage is, in substance, the entirety of the hearing regarding minor’s alleged violations of probation and the subsequent disposition. The additional terms of probation included term 12, “Not associate with known users or sellers of controlled substances nor be in any place where they are known to be used or sold”; term 13, “Neither use nor possess any controlled substance or toluene base substance without a medical prescription and even then only after a written notice is given the probation officer by a physician”; term 21, “Not associate with any known probationer, parolee, or gang member, or anyone known by the probationer to be disapproved of by his/her parent(s) or probation officer”; and term 24, “Minor’s parent(s) is to attend Parent Project or other approved parenting program as directed by the probation officer and not terminate said class until approved by the probation officer.”
II. DISCUSSION
A. Minor Forfeited Any Right to an Evidentiary Hearing on the Alleged Probation Violations and Ultimate Disposition
Minor maintains that the court’s failure to hear testimony, receive items into evidence, take any factual stipulations, and/or allude to prior discussions with counsel constituted a violation of minor’s statutory right to an evidentiary hearing on the alleged violations of probation. We find that sufficient evidence was implicitly taken to justify the court’s finding and that, in any event, minor forfeited any right to an evidentiary hearing.
Section 725 provides, in pertinent part, that “[a]fter receiving and considering the evidence on the proper disposition of the case, the court may[,] . . . [¶] . . . without adjudging the minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months. . . . If the minor fails to comply with the conditions of probation imposed, the court may order and adjudge the minor to be a ward of the court.”
Here, the record, when read in its entirety, indicates that the court did take into consideration evidence prior to entering its order. The record showed that the court had considered the probation officer’s report. The court stated “that the minor did not successfully complete summary probation, basically just didn’t show up at all, ran away from home, isn’t—isn’t meeting the good-faith spirit of the summary probation terms that were offered.” (Italics added.) On this record, the only way the court could have known this is if it had, indeed, read and considered the probation officer’s report. Moreover, the minute order for the hearing explicitly states that “the court has read and considered the probation officer’s memo report dated 08/16/2007.” (Capitalization omitted.) Likewise, it is apparent from the record that prior to the initiation of the hearing, discussions regarding the proper jurisdictional and dispositional findings were held off the record between the court and counsel. The court stated that it understood its tentative disposition was over defense counsel’s objection, to which defense counsel responded in the affirmative. Again, the only way the court could have known that its disposition was contrary to defense counsel’s recommendation was if it had, in fact, discussed the matter beforehand. Thus, sufficient evidence was received and considered by the court to support its ruling.
Moreover, to the extent that minor had a right to an evidentiary hearing on the matter, replete with cross-examination of prosecution witnesses, minor forfeited that right by failing to object below. In In re Deon W. (1998) 64 Cal.App.4th 143, after the minor admitted the truth of the allegation in the section 602 petition, the court exercised its discretion pursuant to section 725 in granting the minor informal probation without declaring him a ward of the court. (In re Deon W., supra, at p. 145.) Thereafter, the probation department sent the court written notice that the minor had violated specific terms of his probation. (Ibid.) The court indicated that it intended to remove the minor from his current placement with his grandmother and find a suitable alternative placement. (Id. at p. 146.) The minor’s counsel requested an evidentiary hearing pursuant to section 777 and a contested dispositional hearing. (In re Deon W., supra, at p. 146.) The court denied the request, declared the minor a ward of the court, and entered a placement order. (Ibid.)
On appeal, the court held that the juvenile court’s failure to provide the minor with an evidentiary hearing prior to its finding that he had violated the terms of his probation was not error both because defendant had forfeited that right by failing to object and because he had no interest in contesting the violation. (In re Deon W., supra, 64 Cal.App.4th at p. 147.) Here, minor contends he did object; however, it is clear from the context of the record that minor was objecting solely to the court’s indicated disposition, not its finding that minor had violated the terms of his probation. The court stated that it had “before it new terms and conditions. [¶] My intention is to take the minor off informal, summary, probation, place him on formal probation . . . . [¶] I understand that’s over your objection, [Defense Counsel]?” Defense counsel replied that it was. Thus, counsel objected only to the placement of minor on formal probation with additional terms and conditions, not to the determination that minor had violated the terms of his probation. Later, defense counsel reiterated the basis of his objection: “Just for the record, the defense is objecting to the additional terms.” (Italics added.) Thus, minor forfeited his right to an evidentiary hearing on the allegation that he violated the terms of his probation by failing to request one below.
Moreover, we also see no interest minor may have had in contesting the violations. Both minor’s brother and father informed the probation officer that minor ran away from home. Minor’s brother informed the probation officer that minor failed to attend school and had dropped out. Minor’s father conceded that despite minor’s assurances otherwise, minor had still failed to return home with just over a week left before the five-month review hearing. Finally, it was undisputed that minor failed to complete his court-ordered community service. Granting minor an unrequested evidentiary hearing would have constituted an empty formality, amounting to a waste of the court’s, minor’s, and the witnesses’ time.
As for minor’s contention that he had a constitutional due process right to an evidentiary hearing which could not be forfeited absent a knowing and intelligent waiver of such right, we note that minor fails to cite any authority, nor can we find any, for that proposition. This is particularly so when, as here, minor faced no prospect of being removed from his current custody or of being incarcerated. (In re Arthur N. (1976) 16 Cal.3d 226, 240, superseded on another ground by statute as stated in In re Eddie M. (2003) 31 Cal.4th 480, 485.)
Similarly, minor forfeited any right to a contested dispositional hearing. As noted above, minor’s objections were limited to the indicated disposition, not the manner of its determination. Minor offered no affirmative evidence nor suggested any error in the evidence relied upon by the court in constructing its disposition. Minor cites In re Deon W., supra, 64 Cal.App.4th 143 for the proposition that he was entitled to the preparation of a social study report prior to the dispositional hearing. (Id. at p. 147.) However, in that case, the minor had specifically requested a contested dispositional hearing, as opposed to the case at hand where minor failed to do so. (Id. at pp. 146-147.) Likewise, in that case, the minor was facing removal from his present custodial parent, as opposed to the instant case where minor was continued in the custody of his parent. Moreover, here, minor previously waived the preparation of a social studies report. It is particularly difficult to imagine, and minor gives us no help in doing so, how a social study report would have aided him when the only consequence he faced was wardship on formal probation with additional terms and no change in custody.
B. Probation Conditions
1. Terms 12 and 21 Must be Modified to Provide for Knowing Violations by Minor
For ease of reference, we reiterate the terms of probation challenged by minor herein: Term 12, “Not associate with known users or sellers of controlled substances nor be in any place where they are known to be used”; and term 21, “Not associate with any known probationer, parolee, or gang member, or anyone known by the probationer to be disapproved of by his/her parent(s) or probation officer.” Minor contends the above listed probation conditions are unconstitutionally vague and overbroad. We agree.
“A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146 [“‘. . . The Constitution, the statute, all case law, demand and authorize only “reasonable” conditions, not just conditions “reasonably related” to the crime committed.’ [Citation.] [¶] Careful scrutiny of an unusual and severe probation condition is appropriate [citation]”].) “[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation . . . .’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) Similarly, “[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.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
Our state Supreme Court recently determined that a probation condition requiring that the defendant not associate with anyone disapproved of by her probation officer was unconstitutionally vague “in the absence of an express requirement of knowledge[.]” (In re Sheena K., supra, 40 Cal.4th at p. 891.) This was because the condition itself did not notify the defendant in advance with whom she was prohibited from associating nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) While that court recognized that it had previously approved of reading an implied requirement of knowledge into a similar probation condition, it rejected doing so in its case: “In the interest of forestalling future claims identical to defendant’s based upon the same language, we suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone ‘known to be disapproved of’ by a probation officer or other person having authority over the minor.” (Id. at p. 892.) Thus, it approved the appellate court’s modification of minor’s probationary conditions to include an explicit requirement of knowledge. (Id. at pp. 879, 892.)
In People v. Garcia (1993) 19 Cal.App.4th 97, the court held that a probationary term requiring defendant not associate with users and sellers of narcotics, felons or ex-felons was constitutionally overbroad in failing to recognize that the defendant may, inadvertently, socialize with individuals unknown to him to fall within such categories. (Id. at p. 102.) Likewise, the court found an implicit recognition of the knowledge requirement within the condition incompatible with constitutional goals: “[T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.” (Ibid.) Hence, it explicitly modified defendant’s condition to prohibit him from associating with persons he knew to be users or sellers of narcotics, felons or ex-felons. (Id. at p. 103.)
In People v. Lopez (1998) 66 Cal.App.4th 615, the defendant’s probationary term 15 barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing. (Id. at p. 622.) That court found the term constitutionally vague and overbroad in that it failed to put defendant on proper notice with whom he was prohibited from associating, what he could wear, and what activities he might lawfully engage in. (Id. at pp. 628-631.) That court found an implied requirement of knowledge on the part of the defendant insufficient to overcome the constitutional infirmities: “Without at least the insertion in this aspect of the condition of a knowledge element, [the defendant] was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise [the defendant] of the ‘identified’ items of gang dress before he was charged with a violation.” (Id. at p. 634.) Hence, the court modified the defendant’s conditions of probation to require that defendant not associate with anyone known by him to be a gang member and not wear clothing known by him to be gang attire. (Id. at p. 638.) With these minor modifications, the court found the defendant’s probationary terms passed constitutional muster. (Ibid.)
The obvious jurisprudential trend is towards requiring that a term or condition of probation explicitly require knowledge on the part of the probationer that he is in violation of the term in order for it to withstand a challenge for constitutional vagueness. While both instant terms have an express knowledge requirement, neither indicates to whom that requirement relates. Thus, minor could be held in violation of his probation because he associated with someone whom only his probation officer knew to be a prohibited individual, this despite the probation officer’s failure to communicate that individual’s status to minor. Even the People here acknowledge that the probationary conditions should be modified to include a specific knowledge requirement relating expressly to minor. Therefore, we shall order that minor’s probationary terms 12 and 21 be modified in accordance with the views expressed herein.
In addition, minor maintains that term 12 fails to distinguish between associating with known users of illegal controlled substances and those who are using legally prescribed controlled substances. While we do not believe that this term would be commonly misunderstood or even would be misunderstood by minor, we find its language in fact very broad. “Controlled substances” are defined and listed in Health and Safety Code sections 11054 and 11055. They include not only Schedule I substances which generally have no recognized medical use, like heroin and marijuana (Health & Saf. Code, § 11054, subds. (c)(11) & (d)(13)), but many other commonly prescribed medications. Many of these substances are stored, dispensed, and used in hospitals and pharmacies.
In view of the great likelihood that minor will at some time find himself in the company of someone who is taking a legal and legitimately prescribed controlled substance, or in a hospital or pharmacy, we agree that probation term 12 should be modified to include the concept of illegality.
Therefore we order minor’s terms of probation revised to read as follows: Term 12, “Not knowingly associate with users or sellers of illegal or illegally-obtained controlled substances nor knowingly be any place where illegal or illegally-obtained controlled substances are to be used”; and term 21, “Not knowingly associate with any probationer, parolee, or gang member, or anyone known by the probationer to be disapproved of by his/her parent(s) or probation officer.”
2. Terms 13 and 24 Must Be Modified to Provide for an Act or Forbearance on the Part of Minor
Minor contends terms 13 and 24 are constitutionally infirm because they require conduct by persons over whom the minor has no control. Preliminarily, we disagree with the People’s contention that minor forfeited his right to appellate challenge of terms 13 and 24 by his failure to object to them below. In the first instance, as noted above, minor did object to imposition of additional conditions of probation. While he did not object specifically to these terms or assert the same basis for the objection herein asserted, minor did challenge, in toto, all the additional terms and conditions imposed when the juvenile court placed minor on formal probation. We believe that objection was sufficient to preserve the challenge asserted on appeal.
The People cite In re Justin S. (2001) 93 Cal.App.4th 811, for the proposition that a minor must object to the imposition of a condition of probation in the juvenile court in order to preserve the issue for appellate challenge. However, that court limited its holding to appellate challenges on the basis of the reasonableness of a condition of probation. (Id. at p. 814.) “[A]n unreasonable condition of probation is one that is unrelated to the crime of which the offender was convicted, relates to conduct which is not itself criminal, requires or forbids conduct which is not reasonably related to future criminality, or does not serve the statutory ends of probation. [Citations.]” (Id. at p. 813, fn. 1.) Here, minor is not challenging the reasonableness of the conditions as they relate to the allegations found true against him, but is objecting to the facial validity of those conditions.
In In re Sheena K., supra, 40 Cal.4th 875, our state Supreme Court held that a challenge to a condition of probation “as facially vague and overbroad presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition.” (Id. at p. 888.) Hence, such a contention does not require objection in the court below in order to be asserted on appeal. (Ibid.) While it is true that minor’s contentions herein do not raise constitutional issues of vagueness or overbreadth, we find them sufficiently divorced from the factual circumstances of minor’s case to warrant resolution “‘without reference to the particular sentencing record developed in the trial court.’ [Citation.]” (Id. at p. 889; see also People v. Welch (1993) 5 Cal.4th 228, 235-236.) Thus, to the extent one might find minor’s objections insufficient, his contentions on appeal are, nonetheless, not forfeit because they are not directed at the conditions’ reasonableness, but at their facial validity, which does not require resort to the specific facts of his case. (People v. Welch, supra, at p. 235; In re Justin S., supra, 93 Cal.App.4th at pp. 814-815.)
It is also somewhat logically incongruous for the People to concede minor’s appellate argument regarding the invalidity of terms 12 and 21; yet maintain he has forfeited challenge to other terms which, likewise, do not resolve around the particular facts of the case. Moreover, the preemptive and cursory nature of the jurisdictional and dispositional hearing, a “hearing” which consisted of absolutely no argument and occupies just slightly over two pages of text in the reporter’s transcript, convinces us that any such objection would have been futile. As noted in Welch, “[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile. . . .” (People v. Welch, supra, 5 Cal.4th at p. 237.) Here, the trial court stated its indicated disposition while concurrently acknowledging minor’s objection. The court gave no suggestion that it was at all inclined to further discussion regarding the validity of individual probationary terms. Therefore, we find any more specific objection would have been futile.
Again, for ease of reference, we restate the probation terms herein challenged: Term 13, “Neither use nor possess any controlled substance or toluene base substance without a medical prescription and even then only after a written notice is given the probation officer by a physician”; and term 24, “Minor’s parent(s) is to attend Parent Project or other approved parenting program as directed by the probation officer and not terminate said class until approved by the probation officer.” Minor contends that these conditions violate fundamental notions of fairness because the terms subject minor to sanctions for acts or omissions on the part of persons over which minor has no control, i.e., minor can, in effect, be punished for the actions or lack of action on the part of others. We agree and, therefore, will order the terms modified to provide that minor may only be sanctioned for behavior, or lack thereof, on the part of himself.
Term 13 requires that the physician give written notice to the probation officer prior to minor’s possession of any prescribed controlled substance. This term inappropriately places minor’s probationary burden on minor’s physician, whom minor may have no control over. We shall order the term modified to require that the burden of written notice provided to the probation officer of any prescription for a controlled substance be placed appropriately upon minor. Thus, term 13 shall be modified as follows: “Neither use nor possess any controlled substance or toluene base substance without a medical prescription and even then only upon providing written notice to the probation officer within a reasonable time.” This term, as modified, will allow minor to control the manner in which notice is given and permit minor to fill his prescription prior to giving notice to the probation officer where the consumption of the substance may be required expeditiously due to minor’s condition. Minor may, of course, delegate the task of notifying the probation officer of the prescription to his physician; however, he shall be responsible for any miscarriage of that duty where he does so.
Term 24 requires that minor’s parent(s) continuously attend any parenting program ordered by the probation officer until ordered otherwise. Again, this provision requires an act on the part of someone other than minor which, if not complied with, could subject minor to repercussions despite no deficiency in thought or deed on his own part. As minor notes, section 727, subdivision (a) provides, in pertinent part, that “[w]hen a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 601 or 602 . . . [¶] . . . [¶] . . . and when the court orders that a parent or guardian shall retain custody of that minor . . . the parent or guardian may be required to participate with that minor in a counseling or education program including, but not limited to, parent education and parenting programs operated by community colleges, school districts, or other appropriate agencies designated by the court.” (Italics added.) This provision mirrors one provided for under section 729.2.
In interpreting section 729.2’s provision for permitting the juvenile court to order parental program participation, we previously concluded that the success of a minor’s probationary program “depends, in part, on the parents’ willingness to assume responsibility for providing help and guidance to the minor.” (In re Jason J. (1991) 233 Cal.App.3d 710, 717.) Thus, “[i]n light of the specific statutory authorization for requiring parental counseling as a condition of probation,” we upheld such a condition because “parental involvement is intended to promote the minor’s rehabilitation.” (Ibid.) Nonetheless, this was only so where the required counseling program required “joint participation by minor and his parents. . . .” (Ibid.) Where such a condition required participation solely by the parent, that term was invalid. (Id. at pp. 717-718.)
Here, term 24 requires participation solely by minor’s parent(s). It does not indicate any requirement of joint participation by minor and his parent(s). Thus, the term as constituted is invalid. Hence, we shall order the term modified to read, “Minor’s parent(s), in participation with minor, is to attend Parent Project or other approved parenting program as directed by the probation officer and not terminate said class until approved by the probation officer.” To the extent that minor contends the condition should be stricken in its entirety, we stand by our decision in In re Jason J.
III. DISPOSITION
We hereby modify minor’s conditions of probation to read as follows: Term 12, “Not knowingly associate with users or sellers of illegal or illegally-obtained controlled substances nor knowingly be any place where illegal or illegally-obtained controlled substances are to be used”; term 13, “Neither use nor possess any controlled substance or toluene base substance without a medical prescription and even then only upon providing written notice to the probation officer within a reasonable time”; term 21, “Not knowingly associate with any probationer, parolee, or gang member, or anyone known by the probationer to be disapproved of by his/her parent(s) or probation officer”; and term 24, “Minor’s parent(s), in participation with minor, is to attend Parent Project or other approved parenting program as directed by the probation officer and not terminate said class until approved by the probation officer.” In all other respects the judgment is affirmed.
We concur: McKinster Acting P.J. Richli J.