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In re Joshua

Court of Appeals of California, Fourth Appellate District, Division Two.
Nov 21, 2003
No. E032951 (Cal. Ct. App. Nov. 21, 2003)

Opinion

E032951.

11-21-2003

In re JOSHUA W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSHUA W., Defendant and Appellant.

Alemayehu G. Mariam, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Plaintiff and Respondent.


Following a contested dispositional hearing, the juvenile court found true that minor committed a battery with serious bodily injury (Pen. Code, § 243, subd. (d)(1)) and an assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Thereafter, minor was declared a ward of the court and placed on probation under various terms and conditions in the custody of his parents. On appeal, minor contends two of his probation conditions are unconstitutionally overbroad, vague, confusing and contradictory. We agree and will modify the probation conditions.

I

FACTUAL BACKGROUND

On March 20, 2002, Miguel A., a student at Apple Valley High School in Apple Valley, California, was walking home from school when minor and his friends, Tabatha D. and Vanessa C., approached Miguel in a car. Minor got out of the car and demanded Miguel apologize to Tabatha for calling her "tubby." Miguel refused and continued walking. Minor again confronted Miguel and challenged him to a fight, but Miguel kept on walking. Minor continued to taunt Miguel to fight, but Miguel did not want to fight. Eventually, minor stepped up to Miguel and struck him in the back of the head. Miguel fell to the ground and lost consciousness; he woke up with minor standing over him. Other people approached, and a young woman who went to Miguels school took him to her house to get treated.

Subsequently, Miguel was taken to a hospital. Miguel suffered a bloody nose, a black eye, a lump on the left side of his face, and swollen eyes.

Minors defense was that he fought Miguel in self-defense and that it was a mutual combat. Tabatha explained that, after Miguel gave Tabatha an insincere apology for calling her "tubby," minor and Miguel began yelling at each other, and Miguel attempted to hit minor. The two of them then began fighting. Minor struck Miguel between five to eight times while Miguel was on the ground. Tabatha also claimed that Miguel had a chain and lock wrapped around his hand. Vanessa corroborated Tabathas testimony.

II

DISCUSSION

Minor contends two of the probation conditions imposed upon him by the juvenile court were unconstitutionally vague and/or overbroad, contradictory, confusing, and unreasonable. The People respond the challenged probation conditions are confusing and contradictory and should be modified. We are inclined to agree with the parties.

At the time of the dispositional hearing, the juvenile court imposed the following probation conditions, among others: "6. Attend school regularly, abide by all school rules and regulations and exert his/her best efforts. [¶] 7. Not be on any school campus except for GED test."

It appears minor, who is currently 19 years old, objected to condition 7, as well as others, but not to condition 6, without stating his reasons. Minor claims he did not waive this issue because the waiver rule does not apply to probation conditions that violate constitutional rights. Although defense counsel or minor did not object to the challenged conditions on constitutional grounds, and to forestall a future ineffective assistance of counsel claim, we will address minors claims on the merits.

In addition, we note, a split of authority on the waiver question. The Supreme Court has held that a defendant may not complain of the unreasonableness of conditions of probation for the first time on appeal. (People v. Welch (1993) 5 Cal.4th 228, 232-236.) Many courts have extended that waiver rule to issues of constitutionality as well, i.e., vagueness or overbreadth. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152 [observe good conduct]; In re Josue S. (1999) 72 Cal.App.4th 168 [maintain satisfactory grades].) However, certain exceptions have been recognized, as when an objection would be futile (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033) or when the condition violates a statute (In re Khonsavanh H. (1998) 67 Cal.App.4th 532, 536-537 [involuntary AIDS testing].) (One court has held that a constitutional challenge to the vagueness or overbreadth of a probation condition is not waived when the objection presents a pure question of law that can be resolved without reference to the sentencing record. (In re Justin S. (2001) 93 Cal.App.4th 811, 814-815.)

A trial court has broad but not unlimited discretion in setting the terms and conditions of probation. (Pen. Code, § 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Welch, supra, 5 Cal.4th at p. 233; People v. Warner (1978) 20 Cal.3d 678, 682-683.) Therefore, we review for abuse of discretion.

While a probationer retains rights of privacy and liberty under the federal Constitution (People v. Keller (1978) 76 Cal.App.3d 827, 832, overruled on other grounds in People v. Welch, supra, 5 Cal.4th 228, 237), probationary conditions may nevertheless place limits on constitutional rights if reasonably necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941; see also Gilliam v. Municipal Court (1979) 97 Cal.App.3d 704, 708 ["[a] condition of probation which requires a defendant to give up a constitutional right is not per se unconstitutional"].)

Therefore, "[c]onditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands." (In re White (1979) 97 Cal.App.3d 141, 149-150; see also In re Michael D. (1989) 214 Cal.App.3d 1610, 1616.)

"[T]he void for vagueness doctrine applies to conditions of probation. [Citations.] An order 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." (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325; accord People v. Hernandez (1991) 226 Cal.App.3d 1374, 1380, disapproved on other grounds in People v. Welch, supra, 5 Cal.4th at pp. 232, 236-237.)

Here, we agree with the parties that the challenged conditions are not sufficiently precise to inform minor what is required of him and to allow the court to determine when a violation has occurred. (People v. Lopez, supra, 66 Cal.App.4th at p. 630; In re Jason J. (1991) 233 Cal.App.3d 710, 719, overruled on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237.) Furthermore, when conditions 6 and 7 are read together, they are confusing and contradictory.

Based on the foregoing, probation condition Nos. 6 and 7 should be modified. We may modify the probation conditions accordingly. (See In re Justin S., supra, 93 Cal.App.4th 811, 816.)

Minor argues that condition No. 7 should be stricken altogether. However, we will modify it according to the juvenile courts intent.
At the time of the dispositional hearing, the prosecutor argued that minor not be allowed on "any school campus except for a school campus to take his GED [condition 7] so that the victim can go to his school and attend football games [on] other campuses without fear of running into this minor." Minor and his father objected to this condition because minors brothers played football at Rialto High School (the current incident happened outside the campus of Apple Valley High School). The juvenile court responded, "Its not very likely that [minors] going to be involved in a fight at Rialto High School, but I have a duty to protect society at large in case he does."

III

DISPOSITION

Minors probation condition No. 6 is modified to read: "Attend school regularly, abide by all school rules and regulations and exert his best efforts only for the purpose of attending classes to obtain his GED." Minors probation condition No. 7 is modified to read: "Not be allowed onto any campus and/or school grounds other than the campus that he is attending to obtain his GED." In all other respects, the judgment is affirmed.

We concur: HOLLENHORST, Acting P.J., McKINSTER, J.


Summaries of

In re Joshua

Court of Appeals of California, Fourth Appellate District, Division Two.
Nov 21, 2003
No. E032951 (Cal. Ct. App. Nov. 21, 2003)
Case details for

In re Joshua

Case Details

Full title:In re JOSHUA W., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:Court of Appeals of California, Fourth Appellate District, Division Two.

Date published: Nov 21, 2003

Citations

No. E032951 (Cal. Ct. App. Nov. 21, 2003)