Opinion
C059140
7-9-2009
In re JULIANNA B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JULIANNA B., Defendant and Appellant.
Not to be Published
After considering witness testimony and a summary disposition report filed by the probation department, the juvenile court sustained a petition charging Julianna B. (a minor) with giving false information to a peace officer (Veh. Code, § 31). The court denied minors counsels request for informal probation supervision (Welf. & Inst. Code, § 654; further undesignated references are to this code), declared the minor a ward of the court, removed her from her parents custody, and returned her to her parents home on a trial basis. The court placed her on formal probation and imposed certain conditions, including counseling "as deemed appropriate by probation," random searches, and alcohol and drug testing.
The minor contends on appeal that the juvenile courts failure to consider a social study in making its dispositional order was reversible error per se; the courts denial of her request for informal probation supervision was an abuse of discretion; and the conditions of probation requiring counseling, random searches, and drug and alcohol testing were unreasonable based on the factors set forth in People v. Lent (1975) 15 Cal.3d 481 (Lent). We agree there is no basis in the record for the conditions requiring random searches and drug and alcohol testing and will therefore strike those conditions, but will otherwise affirm the juvenile courts orders.
FACTUAL AND PROCEDURAL BACKGROUND
A gray truck occupied by the minor and Tyler K. veered into the right lane of traffic, running into Shannon Kindles truck and forcing her off the road, causing her to drive over a sidewalk and up an embankment, plowing over a stop sign in the process. As the accident was occurring, Kindle observed a female in the front passenger seat of the gray truck.
The accident caused $14,000 of damage to Kindles truck.
Kindles car came to rest in the parking lot of Auto Zone. The gray truck drove into the adjacent Walgreens parking lot and parked. Kindle called the police and described what happened. As she did, the minor ran up crying, "Please dont tell, please dont tell. He wasnt here." Kindle recognized the minor as the girl who had been sitting in the passenger seat of the gray truck at the time of the accident. Kindle told the dispatcher, "[T]here was a boy driving it and they kind of switched drivers and she [the minor] is saying please dont tell them . . . ."
Cindy Tinker witnessed the accident from across the street and ran over to Kindles car. When the gray truck finally came to a rest, Tinker saw the minor get out of the passengers side and Tyler K. get out of the drivers side. Tyler and the minor spoke briefly and then Tyler "ran up the road." The minor ran up to Kindles car, panicked and crying, asking Tinker "not to say that he [Tyler K.] was driving." Tinker told the dispatcher several times, "[T]heyre switching drivers."
Tyler K. eventually returned to the scene of the accident and spoke with police, saying the minor had been driving and he was a passenger, and telling them he left the scene to get a drink.
Brendon Lawhon, a sales manager at Auto Zone, was working at the time of the accident. Lawhon told police he could not see the collision or who was behind the wheel of either vehicle involved. He went over to Kindles truck to make sure no one was hurt. When Kindle and Tinker asked where Tyler was, the minor said, "oh, there was no one here." Lawhon told the minor that Tyler would get into trouble if he did not return to the accident scene, after which she called Tyler.
At the contested jurisdiction hearing, contrary to his statement to police at the time of the accident, Lawhon testified that he heard a loud boom and went outside, lit up a cigarette and looked over to see the gray truck parking in the Walgreens parking lot. Lawhon saw Tyler getting out of the passenger side of the truck and close the passenger door. He also saw the minor, who was standing "on the drivers side right where the cab and the bed meet," closing the door.
Tyler testified he was a passenger in the gray truck and it was the minor who was driving. He stated he left the scene of the accident because the minor told him to, but returned when the minor called him and told him to come back.
The minor testified that she was the driver of the gray truck and, at the time of the accident, she had a restricted drivers license prohibiting her from having a passenger in the vehicle. She claimed that was the reason she asked Kindle and Tinker not to tell police Tyler was with her in the truck. She denied switching places with Tyler.
The minors testimony was interrupted by the court bailiff, who informed the court that he had observed the minors father coaching the minor during her testimony. The minors father was removed from the courtroom and, upon his return, admonished by the court against any further misconduct.
The bailiff informed the court that, in response to a question whether Tyler had ever driven the minors truck, the minors father mouthed the words "never, never."
At the conclusion of the hearing, the juvenile court sustained the allegations in the petition.
At the subsequent disposition hearing, minors counsel told the court, "Your Honor, were objecting to the report and recommendations. In our view the Court has not gotten a proper picture of this young woman whos a good student, never been in trouble before, has no problem with drugs or alcohol. We believe that the matter should simply be referred back to probation under [section] 654." The district attorney objected, noting, "This went through a contested juris. The Court heard the evidence." The court denied the request for informal supervised probation pursuant to section 654, stating, "[t]he court feels that there are issues that go beyond this young lady that extend to the family." Instead, the court imposed formal probation with specified conditions as recommended by probation, including counseling as "deemed appropriate by probation" (condition no. 29), random searches (condition no. 30), and drug and alcohol tests (condition no. 32). The court set the matter for annual review, noting it would "entertain a motion to dismiss probation early . . . provided the work hours are done, the fines and fees are paid, and [the minor] has done well in school."
The minor filed a timely notice of appeal.
DISCUSSION
I
Absence of Social Study in Making Disposition Order
The minor claims the juvenile court committed reversible error per se by entering a dispositional order without the benefit of a social study, contrary to the requirements of section 706 and California Rules of Court, rule 5.785(a). Alternatively, she urges the documentation before the court at the disposition hearing did not substantially comply with those requirements, nor did her counsels questions at the hearing correct the problem.
Whenever a minor comes before a juvenile court for disposition, he or she is entitled to have the court look at their entire record, including a current social study. (In re Deon W. (1998) 64 Cal.App.4th 143, 147; §§ 280, 702, 706; Cal. Rules of Court, rule 5.785 (hereafter rule 5.785).) "The probation officer must prepare a social study of the child, which must contain all matters relevant to disposition, including any parole status information, and a recommendation for disposition." (Rule 5.785(a).)
The disposition hearing was conducted June 11, 2008. There is no evidence that a social study was ever prepared, nor is there any explanation for its absence. Instead, the probation department filed a summary disposition report, attached to which were several written statements prepared by the minors mother and a statement by the minor.
The minor suggests the court did not review the June 2, 2008, version of the report containing the attachments. We reject that argument based on the courts comment at the disposition hearing that "[t]his is on for a summary report filed June 2nd."
Where there is substantial compliance with the social study requirement, i.e., the court has information before it sufficient to make a proper disposition of the case, "the error is not of constitutional dimension" and the courts order will not be set aside unless the error results in prejudice to the minor. (In re Eugene R. (1980) 107 Cal.App.3d 605, 615 (Eugene R.), overruled on other grounds in Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 115.)
"`While there are no precise requirements outlined in the code or case law as to the contents of the social study, drawing an analogy from what the juvenile court must consider in making a disposition, the probation officers report should address, in addition to other relevant and material evidence, the age of the minor, [her] social, personal and behavioral history, the circumstances and gravity of the offense committed by the minor, and the minors "previously delinquent history." (§ 725.5.) The social study should also include `an exploration of and recommendation to the wide range of alternative facilities potentially available to rehabilitate the minor. (In re Devin J. (1984) 155 Cal.App.3d 1096, 1100 [].)" (In re L.S. (1990) 220 Cal.App.3d 1100, 1104.)
Here, the summary disposition report contained general information about the minor, including her age and criminal history, and probations recommendation that the minor be placed on formal probation subject to specified general and special conditions. As such, it met several of the requirements of rule 5.785. As for other information "relevant to disposition," the statements prepared by the minors mother contain a significant amount of personal information regarding the minor, including the fact that she has lived with her parents since birth; she has lived in the same home for 14 years; she just completed her junior year in high school; she has never had any serious illness, injuries, or accidents; she has, until the accident, maintained good grades in school, making the honor roll through junior high; she has become more social at school since the accident; she spends her spare time showing and training horses and has won awards for doing so; she was very upset by the accident, both physically and emotionally; there were no drugs or alcohol involved in the accident; the family filed a formal complaint against the officer in charge of the accident investigation the year prior regarding an incident involving the minors older sister; she has "never posed any problem to her family" and "has never been caught drinking, smoking, or engaging in any activity that she should not be engaging in"; she checks in regularly when she is away from home; she lives in a "normal (stable)" environment with her parents and her two siblings, neither of whom have any criminal history; she has no mental health issues; and is "loved dearly by her family." That information was more than sufficient for purposes of making a disposition order. One might even argue the absence of a social study worked to the minors benefit given that the lions share of the information provided to the court was positive information about the minor contained in statements prepared by her mother. While the minor argues there were "many unanswered questions" and "all matters relevant to a proper disposition of her case were not before the court," she does not tell us what relevant information was not put before the court. She also does not argue, nor can we find any basis on which to conclude, that she would have fared any better had a social study been prepared.
Based on the record before us, it is not reasonably probable the minor would have received a more favorable result had the court received a social study before disposition. (Eugene R., supra, 107 Cal.App.3d at p. 615; People v. Watson (1956) 46 Cal.2d 818, 836.) We find no error here.
II
Denial of Informal Probation Supervision
The minor contends the juvenile court abused its discretion when it denied her request for informal probation supervision pursuant to section 654. She is wrong.
Section 654 provides that the probation officer "may, in lieu of filing a petition to declare a minor a dependent child of the court or a minor or a ward of the court under Section 601 or requesting that a petition be filed by the prosecuting attorney to declare a minor a ward of the court under subdivision (e) of Section 601.3 or Section 602 and with consent of the minor and the minors parent or guardian, delineate specific programs of supervision for the minor, for not to exceed six months, and attempt thereby to adjust the situation which brings the minor within the jurisdiction of the court or creates the probability that the minor will soon be within that jurisdiction." (§ 654.) As the People correctly point out, that authority exists prior to the filing of a petition. Here, the petition had already been filed.
Informal supervision is available after the petition has been filed, but only prior to adjudication of the petition. (§ 654.2; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 967.)
The court conducted a jurisdictional hearing and, at the conclusion of that hearing, sustained the petition. The minor did not make her request for informal supervision pursuant to section 654 until the subsequent disposition hearing, and there was no request made for informal supervision pursuant to section 654.2. Given that the petition had already been sustained, and in the absence of a timely request for informal supervision pursuant to section 654.2, the juvenile court was not required to consider the issue at the disposition hearing at all. (In re Abdirahman S., supra, 58 Cal.App.4th at p. 968.) On that basis, we reject the minors claim.
III
Validity of Probation Conditions
When a minor is adjudged a ward of the court on a delinquency petition, the court "may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (§ 730.) "A condition of probation will not be held invalid unless it `(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . [Citation; fn. omitted.]" (Lent, supra, 15 Cal.3d at p. 486.)
"Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation. `A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court. [Citation.]" (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153.)
"Thus in planning the conditions of appellants supervision, the juvenile court must consider not only the circumstances of the crime but also the minors entire social history." (In re Todd L. (1980) 113 Cal.App.3d 14, 20.)
Consistent with section 730, the juvenile court "enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.] That discretion will not be disturbed in the absence of manifest abuse. [Citation.]" (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)
The minor argues the probation conditions at issue are unreasonable under the Lent test. The People argue the minor forfeited her claims by failing to raise them at the hearing and, in any event, the claims lack merit. Assuming the minors general objection to the recommendations in the summary disposition report preserved her claims for appeal (People v. Welch (1993) 5 Cal.4th 228, 233-237 [probationer forfeits claim that condition was factually inappropriate based on factors set forth in Lent if claim not first brought to the attention of the sentencing court]), we conclude the claim as to the counseling condition lacks merit.
A. Condition Requiring Counseling
According to the minor, the counseling condition fails two of the three Lent criteria: it is not reasonably related to her crime, and it does not require or forbid conduct that is reasonably related to future criminality. We disagree.
The court found the minor lied to police officers when she told them she was driving the truck that caused the accident. The minor reiterated that lie during her testimony at the jurisdictional hearing. Also troubling is the fact that the minors testimony had to be interrupted due to the bailiffs observation that the minors father was coaching her testimony regarding whether Tyler had ever driven the gray truck. While it is true there is no evidence that the minor suffers from any sort of mental illness or disorder, it is not outside the bounds of reason to conclude that the minors deception, apparently condoned and encouraged by her fathers willingness to contribute to such behavior, while in court under oath, would be well-served by counseling, both to deal with the current crime and prevent future criminality.
The minor also claims the requirement that counseling be at the discretion of the probation officer renders the condition overbroad because a probation offer who "failed to provide a social study to the court . . . should not be entrusted with the responsibility for determining the minors mental health needs." Given the lack of any meaningful analysis by the minor, we are not persuaded by her claim. Furthermore, as the People aptly point out, the fact that the appropriateness of the minors counseling is determined by the probation officer to whom she will be required to regularly report will "ensure the requirement is narrowly tailored to [the minors] needs . . . ."
The juvenile court did not abuse its discretion with regard to the counseling condition.
B. Conditions Requiring Random Searches and Drug and Alcohol Testing
The minor claims the conditions requiring random searches and testing for drugs and alcohol have no relationship to her crime, and are not supported by the record. We agree. The minor was found to have lied to a police officer about who was driving at the time of the accident. There is nothing in the record to suggest that the accident involved or was caused or motivated by drugs or alcohol, nor is there any evidence to suggest that the minor had, either at the time of the accident or prior thereto, a problem with, or any involvement with, drugs or alcohol. According to her mothers statement, the minor "has never been involved in drug[s] and alcohol use and is very responsible about keeping in touch with her parents when away from home." There was no evidence offered to dispute that statement. The drug and alcohol testing condition is invalid.
The minor also claims the condition requiring searches violates her rights under the Fourth Amendment of the United States Constitution. However, we need not reach that claim, given our disposition on other grounds.
The search condition is similarly invalid. The minors crime did not involve any weapons, drugs or drug paraphernalia, and she was not found to be in possession of anything illegal at the time of the accident. The minor has no history of possessing weapons or illegal substances, and there is no evidence in the record that random searches of her person, belongings, or residence would help prevent future criminality.
Applying the Lent criteria, and after evaluating the record, we conclude the probation conditions requiring random searches and drug and alcohol testing are both invalid. We shall order those conditions stricken.
DISPOSITION
The order is modified by striking the two conditions of probation requiring random searches and drug and alcohol testing. In all other respects, the order is affirmed.
We concur:
HULL, J.
BUTZ, J.