Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J224717, Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Phillip I. Bronson, 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, Assistant Attorney General, and Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J
After a contested jurisdictional hearing, the Riverside County Juvenile Court found true that defendant and appellant K.Y. (minor) committed a robbery in violation of Penal Code section 211. Subsequently, after finding minor’s legal residence to be San Bernardino County, the matter was transferred to that county for disposition. Following a dispositional hearing, minor was declared a ward of the court and placed on probation on various terms and conditions in the custody of his parents. On appeal, minor contends (1) probation condition No. 10 precluding him from using or possessing “any controlled substance or any toluene base substance without a medical prescription” and without written notice to his probation officer by a physician is unreasonable and unconstitutional; and (2) his counsel’s failure to object to the challenged probation condition constituted ineffective assistance. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
Minor and his cohorts forcefully took the victim’s cellular telephone after the victim refused to give her phone to minor. The victim later identified minor as the person who attacked her and stole her phone. Minor admitted that he had taken the victim’s phone but claimed that he had done so to fit in with his companions.
II
DISCUSSION
As part of the terms and conditions of his probation, the juvenile court ordered minor to “[n]either 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” (condition No. 10). Minor contends this condition is unreasonable and unconstitutionally vague and overbroad. Acknowledging that his trial counsel failed to object to the challenged condition in the court below, minor also asserts that his counsel was ineffective for failing to object and request a modification.
Generally, failure to timely challenge a probation condition in the trial court forfeits the claim for purposes of appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; People v. Welch (1993) 5 Cal.4th 228, 234; In re Josue S. (1999) 72 Cal.App.4th 168, 170.) However, in In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the California Supreme Court held that a minor may raise on appeal a challenge to the constitutionality of a probation condition so long as the claim presents a pure question “‘“of law that can be resolved without reference to the particular sentencing record developed in the trial court”... ’” (id. at p. 889) and is “easily remediable on appeal by modification of the condition” (id. at p. 888). This is because “an appellate claim amounting to a ‘facial challenge’ [where] phrasing or language of a probation condition is unconstitutionally vague and overbroad because, for example, of the absence of a requirement of knowledge... does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts a task that is well suited to the role of an appellate court.” (Id. at p. 885.) In contrast, a juvenile court is generally “in a considerably better position than the Court of Appeal to review and modify a... probation condition that is premised upon the facts and circumstances of the individual case.” (Ibid.) Also, a juvenile defendant “who fails in the trial court to challenge a condition of probation on the ground of unreasonableness ” forfeits the claim. (Id. at p. 883, fn. 4.)
As minor acknowledges, he did not object below to the probation condition he now challenges and on this basis has forfeited his reasonableness claim. However, under Sheena K., minor is not precluded from challenging the constitutionality of the probation condition.
Nonetheless, in the interest of judicial economy and to forestall minor’s ineffective assistance of counsel claim, we will address minor’s claims on the merits.
We review a trial court’s choice of probation terms for abuse of discretion. “In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A condition will not be invalidated 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....’” (People v. Lent (1975) 15 Cal.3d 481, 486.) A condition that requires a defendant to give up a constitutional right is not necessarily unconstitutional. (Gilliam v. Municipal Court (1979) 97 Cal.App.3d 704, 708.)
Furthermore, restrictive conditions may be imposed upon juveniles more freely than upon adults. “The juvenile court is empowered to impose conditions of probation in juvenile cases and has broad discretion when formulating such conditions. A juvenile probationer may be therefore subject to ‘any and all reasonable conditions’ the court ‘may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ In deciding what probation conditions are appropriate, the court shall consider not only the circumstances of the offense but also the minor’s entire social history. Such conditions are valid and enforceable unless they bear no reasonable relationship to the underlying offense or prohibit conduct that is neither criminal in nature nor related to future criminality. On appeal, the court’s exercise of discretion will not be disturbed absent a manifest abuse of discretion.” (In re Juan G. (2003) 112 Cal.App.4th 1, 6-7, fns. omitted.)
Keeping this standard of review in mind, we shall address minor’s challenges to the probation condition at issue. Minor challenges the provision that he must not use or possess any controlled substances without a medical prescription and, even then, not until after written notice has been given to his probation officer. We see no problem with this term.
Minor argues that the term is unreasonable because he would violate it if he were taken to an emergency room and given medication to save his life. He also contends that as drafted this condition violates his “fundamental right to seek medical care to alleviate pain and suffering and to prolong life and his due process right to substantive due process.” Minor’s arguments are themselves unreasonable. Not only must they fail under the rationale of People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna), but in a true emergency, when a medication must be used immediately to save a life, no physician writes a prescription to be carried at leisure to an outpatient pharmacy for filling. In such circumstances, medication is administered directly, often by injection or intravenous line. In any other situation, by definition not an emergency because the patient is merely given a written prescription to be filled later, there is time for notice to, and consultation with, a probation officer. The probation officer may well be able to give the physician important information about the probationer’s medical and legal background, and this information may in turn alert the doctor to order minimal amounts of the necessary substance and to supervise the patient’s use more carefully than might otherwise be necessary.
Acuna, supra, 14 Cal.4th 1090 is a California Supreme Court case in which the defendants challenged as unconstitutionally vague terms of an injunction that prohibited them from gathering in a certain neighborhood and associating with known members of certain gangs. (Id. at pp. 1100-1101, 1115, 1117.) The court pointed out that, in vagueness claims, “the underlying concern is the core due process requirement of adequate notice.” (Id. at p. 1115.) Terms challenged on vagueness grounds must be analyzed in context and under a notion of reasonable certainty. A “statute will not be held void for vagueness ‘if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.’” (Id. at p. 1117.) Moreover, “the element of knowledge is fairly implied in the decree” and to the extent that knowledge cannot be so implied, said the court, “we are confident that the trial court will... impose such a limiting construction on [the term in question] by inserting a knowledge requirement should an attempt be made to enforce that [term] of the injunction.” (Ibid.)
Minor also argues that the challenged probation condition is unreasonable because it is not reasonably related to his current offense and future criminality. We disagree. This condition relates to conduct that is criminal in and of itself. Both the Penal Code and Health and Safety Code provide that use and possession of a controlled substance without a prescription is a criminal act. (See, e.g., Pen. Code, § 381; Health & Saf. Code, § 11377.) In addition, the record indicates that minor acted in concert with others and that minor admitted he had committed the crime because “really I was just try in’ to fit into this crowd that I wanted to be in” and “[b]ecause that’s what everybody was do in’ at the time, and I wanted to fit in,” thus showing his inability to refrain from behavior he knows to be wrong due to peer pressure. Accordingly, the condition is reasonable and relates to future criminality.
Minor’s arguments to the contrary are unavailing. We therefore deny minor’s request to modify or strike the subject probation condition.
III
DISPOSITION
The judgment is affirmed.
We concur: GAUT. J., KING. J.