Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SQ1016053.
NEEDHAM, J.
L.F. appeals from an order imposing probation conditions following a transfer of her wardship case from Solano County to Mendocino County. (Welf. & Inst. Code, §§ 602, 750; Cal. Rules of Court, rules 5.610 & 5.612.) She contends: (1) the juvenile court in Mendocino County imposed more onerous probation conditions than those imposed by the Solano County court without a requisite change in circumstances; (2) the gang conditions as modified were overbroad and unconstitutional; and (3) certain conditions are unenforceable because the Mendocino County court failed to make an adequate oral record. We modify some of the gang conditions but otherwise affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
On September 7, 2009, 15-year-old L.F. provoked and fought with another girl in a Vallejo public park. On December 21, 2009, she struggled with Vallejo police officers during a detention to investigate a possible burglary and had to be tasered. The district attorney filed section 602 wardship petitions in the Solano County juvenile court alleging that L.F. had committed the misdemeanors of battery in violation of Penal Code section 242 and resisting a peace officer in violation of Penal Code section 148, subdivision (a)(1). L.F. admitted the allegations.
At the dispositional hearing held on July 15, 2010, the court declared L.F. a ward under section 602, retained her in her mother’s custody, and placed her on supervised probation. It rejected the probation officer’s recommendation of informal supervision under section 725 without a declaration of wardship, noting that L.F. had admitted to using alcohol about three times a month, was failing in school, and had gang-related issues (having admitted to the probation officer that she had been “jumped into” the Norteños street gang when she was 11 or 12 years old).
The terms of L.F’s probation included requirements that she notify the probation department of any anticipated change of address at least 48 hours in advance in writing; submit to searches without probable cause; abstain from drug and alcohol use; submit to weekly drug testing for 60 days and submit to testing ordered by any peace officer; complete 50 hours of volunteer work, though she could earn credit toward those hours by getting good grades; and pay restitution as directed by the probation department plus a restitution fine of $50. The court orally imposed “full gang terms, ” prohibiting her from associating with known gang members, being present in areas where gang members were known to meet or gather, wearing gang clothing or paraphernalia, or acquiring gang tattoos.
Shortly after the dispositional hearing, L.F. moved with her mother to Mendocino County. The Solano County juvenile court granted her petition to transfer her case to the Mendocino County juvenile court, which accepted the transfer at a hearing held September 14, 2010. (See § 750.) The Mendocino County Probation Department officer advised the court that L.F.’s family had been difficult to reach. She recommended that the court adopt the probation conditions imposed by the Solano County court but put them in the “format” used in Mendocino, noting that the standard conditions used in Mendocino were “a lot more specific” than those in the order issued by the Solano County court. Defense counsel objected to any change in the original disposition without additional facts, noting that she would reserve on the issue of adding supervision and drug testing fees.
The court ordered that the Solano County probation conditions would remain in effect pending a new probation interview. It instructed the probation officer to prepare a new order that was in a format used by Mendocino County, and indicated that any proposed substantive changes to the conditions imposed by the Solano County court should be addressed in a new report. The probation officer filed a short report confirming that L.F. now resided in Mendocino County and submitted proposed written “Findings and Orders” setting forth the terms of L.F.’s probation. The report did not explicitly recommend a change in any of the Solano County probation conditions.
On October 19, 2010, a hearing was held to consider adoption of the “Findings and Orders” drafted by the Mendocino County Probation Department. The proposed order included the following conditions relevant to this appeal: “11. Said minor is to submit to search and seizure at any time of the day or night of her person, property, or any property under her control, by any probation officer or peace officer, with or without cause, with or without a warrant;” “13. Said minor is not to possess or consume any alcohol, marijuana, narcotics, or illegal drugs at any time, and submit to a physical examination and/or chemical testing for the purpose of detecting the presence of illegal use of alcohol, drugs or narcotics when so ordered by any probation officer or peace officer with or without cause;” “14. Said minor is to pay a restitution fine of $100 through the Probation Department....;” “15. Pursuant to Mendocino County Resolution Number 90-199, said minor/parents are ordered to pay a $205.00 annual drug/alcohol testing fee through the Mendocino County Probation Department....;” “16. The parent/s/guardian of said minor shall, jointly and severally, make monthly payments of $50.00 through the Probation Department.... The financial officer will distribute the monies to the respective accounts; i.e., victim restitution, juvenile hall reimbursement, restitution fine, etc.;” “18. [Parents] are ordered to reimburse Mendocino County for said minor’s reasonable cost of support in an amount commensurate with their ability to pay....;” and “30. Said minor is ordered to complete 50 community service hours....”
The proposed order also contained a number of gang-related conditions: “21. Said minor shall not be a member of any criminal street gang, act in furtherance of, in association with or for the benefit of any criminal street gang;” “22. Said minor shall not associate with any person known to her as a criminal street gang member(s) and shall not frequent any area where criminal street gang members are known to her to congregate or areas known for criminal street gang related activity;” “23. Said minor shall not wear or possess any clothing or item or display any hand signs with gang significance or which are indicia of criminal street gang membership (i.e., colors, symbols, insignias, numbers, monikers, patterns, etc.) known to her to be such, as may be identified as such by probation officers or any other law enforcement officer;” “24. Said minor shall submit to photographing as directed by any probation officer or other law enforcement officer;” “25. Said minor shall not possess any graffiti materials, including but not limited to, acid, spray paint cans, marker pens and liquid shoe polish;” “26. Said minor shall not obtain new gang related tattoos, brands, burns, piercings or voluntary scarring and shall permit photographing of all tattoos that exist to the date of this order;” and “29. Said minor shall not attend any Court proceeding unless minor is a defendant, witness or party in interest to that proceeding.”
Defense counsel objected, claiming the new order “substantially modif[ied]” the previous disposition. Specifically, counsel complained that: (1) the order did not incorporate the Solano County court’s order giving L.F. the option of earning community service credits through good grades; (2) the restitution fine was set at $100, rather than the $50 set by the Solano County court; (3) the Solano County court had ordered that L.F. submit to weekly drug and alcohol testing for only 60 days, a period that had already expired, whereas the proposed order mandated testing “when so ordered by any probation or peace officer, with or without cause, ” for an indefinite period; (4) L.F.’s parents were ordered to pay a $205 annual fee for drug and alcohol testing that had not been previously ordered; (5) a $20 monthly supervision fee should be paid by the parents, rather than by L.F. as the order currently specified; and (6) the gang terms added requirements that were not specifically contained in the Solano County order.
In response to these objections, the court modified the proposed order by deleting the community service requirement, having determined that L.F. had satisfied that condition by earning all As except for one B+ in school. It reduced the restitution fine to $50 as ordered by the Solano County court, ordered that the $20 monthly supervision fee would be paid by L.F.’s parents rather than L.F. personally, subject to the parents’ ability to pay, and directed that the $205 alcohol and drug testing fee would be subject to the parents’ ability to pay. The court indicated that it was appropriate to impose fees related to L.F.’s supervision in Mendocino County since she had now been transferred and “[t]his county has the right to treat her just like any other probationer.”
DISCUSSION
A. Introduction
When a minor is declared a ward under section 602, the juvenile court may render various dispositions, including supervised probation. (§ 727; In re Kazuo G. (1994) 22 Cal.App.4th 1, 8.) A juvenile court has broad discretion to impose probation conditions, which are a part of the dispositional order and must be in the minor’s best interests. (§ 730; In re Christopher M. (2005) 127 Cal.App.4th 684, 692 (Christopher M.); In re Antonio R. (2000) 78 Cal.App.4th 937, 941; In re Bernardino S. (1992) 4 Cal.App.4th 613, 622 & fn. 5.) When a wardship case is transferred from one county to the other under section 750 based on the minor’s change in residence, the receiving court “must commence at the same phase as when the case was transferred.” (Cal. Rules of Court, rule 5.612(c).)
Section 775 is part of the statutory scheme governing juvenile delinquency cases and broadly provides, “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.” The “procedural requirements” applicable to a modification that does not entail a removal from parental custody or a commitment to the Youth Authority (see § 777) are notice and an opportunity to be heard, both of which were provided in this case. (See § 776.) Section 778 also allows the minor, parent or other interested party to “upon grounds of change of circumstance or new evidence, petition the court in the same action... for a hearing to change, modify, or set aside any order of the court previously made....”
B. “Modification” of Prior Probation Order
L.F. asks us to strike certain probation conditions imposed by the Mendocino County Court that were not included in the original Solano County probation order. Citing section 778, she argues that these conditions were unauthorized because they were not supported by a change in circumstances. We question the premise that a juvenile court may only impose additional probation conditions upon a change of circumstances. (See § 775; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 110-116.) But, assuming such a showing is required, the transfer of the case to Mendocino County for supervision by a different court and probation department was itself a change of circumstances supporting some modifications to the probation conditions.
We also reject L.F.’s challenges to the modified conditions on other grounds.
Three of the conditions now challenged by L.F. as inconsistent with the Solano court’s order were directed to her parents: Condition No. 16., which required her parents to pay $50 a month toward financial obligations already imposed; Condition No. 18, requiring them to reimburse Mendocino County for the reasonable cost of L.F.’s support; and Condition No. 15, requiring them to pay a $205 annual fee for L.F.’s alcohol and drug testing. These conditions place no burden on L.F. personally, and her parents have not appealed from the order. L.F. lacks standing to assert the claims on their behalf. (In re George B. (1991) 228 Cal.App.3d 1088, 1094.)
Nor are we persuaded by L.F.’s challenge to Condition No. 8, which requires that she obtain the approval of the probation officer before changing her residence. Assuming her counsel did not forfeit this claim by failing to lodge a specific objection (see In re Justin S. (2001) 93 Cal.App.4th 811, 814-815 (Justin S.); In re Abdirahman S. (1997) 58 Cal.App.4th 963, 971), the condition was supported by a showing that the family’s only street address in Mendocino County was a post office box, and that it had been difficult for the probation department to contact them since the move to Mendocino. The condition requiring permission to move, as opposed to the Solano County condition that only required L.F. to give prior notice of a move, was a reasonable additional safeguard to ensure that L.F. remained under the court’s supervision.
L.F. also suggests that the court exceeded its authority by imposing Condition No. 13, which required her to submit to drug and alcohol testing when instructed to do so by the probation officer or other law enforcement officer. This requirement is not inconsistent with the Solano County court’s order, which required weekly drug testing for only 60 days but also directed that L.F. would “submit to drug/alcohol testing by any Peace Officer.”
Turning to the gang-related conditions, L.F. argues that two of them were inconsistent with the original probation order: No. 24, which required her to submit to photographing as directed by her probation officer or other law enforcement, and No. 25., providing that she “not possess any graffiti materials, including but not limited to, acid, spray paint cans, marker pens and liquid shoe polish.” Defense counsel did not specifically object to these two conditions and the challenge has been forfeited. (Justin S., supra, 93 Cal.App.4th at pp. 814-815.) In any event, the Solano County court had imposed “full gang terms, ” even if it did not specify all of the details of those terms.
Although counsel generally objected that the Mendocino County gang terms added conditions that were not in the prior probation order, she did not identify the specific conditions to which she referred and suggested that the prior order was “a little confusing” because it listed six specific gang-related items but also provided for “full gang terms.”
C. Constitutionality of Gang Conditions
L.F. also argues that a number of the gang conditions imposed by the Mendocino County court (Conditions Nos. 21, 22, 23, 24, 25 and 29) were unconstitutionally vague and overbroad. (See In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) The Attorney General does not dispute that these claims are cognizable on appeal, though counsel failed to lodge an objection on this ground in the juvenile court. (Id at p. 889.) Moreover, the Attorney General agrees that the challenges to four of these conditions have merit (Conditions Nos. 21, 22, 25 and 29), and should be modified in the manner proposed by L.F. in her opening brief. We will order those conditions modified as directed in the disposition of this opinion.
Turning to the two gang conditions whose constitutionality is still at issue (Conditions Nos. 23 and 24), we apply the following principles: “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 [constitutional] 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 constitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)
Condition No. 23 provides, “Such minor shall not wear or possess any clothing or item or display any hand signs with gang significance or which are indicia of criminal street gang membership (i.e., colors, symbols, insignias, numbers, monikers, patterns, etc.) known to her to be such, as may be identified as such by probation officers or any other law enforcement officer.” L.F. argues that the term “gang significance” is too vague to be enforced and proposes that it be omitted from the condition. We disagree that a reasonable probationer would not understand the meaning of “gang significance” and see no need to modify the language of the condition. (See People v. Lopez (1998) 66 Cal.App.4th 615, 638 [appellate court modified gang condition to include prohibition against insignia, monikers “or other markings of gang significance]”.)
L.F. argues that her constitutional right to privacy was violated by Condition No. 24, which provided: “Said minor shall submit to photographing as directed by any probation officer or other law enforcement officer.” She asks us to modify that condition to allow only photographs of tattoos, brands, burns, piercings or voluntary scarring, a limitation that would effectively limit photographs taken to those showing a violation of Condition No. 26, prohibiting her from obtaining new gang-related tattoos or markings.
L.F.’s claim to a right of privacy must be assessed under Hill v. National College Athletic Assn. (1994) 7 Cal.4th 1, 26, which requires a complaining party to show (1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct constituting a serious violation of the privacy interest. (Christopher M., supra, 127 Cal.App.4th at p. 695.) A violation of privacy will not be found “where the invasion of the privacy interest is justified because it substantially furthers one or more legitimate competing or countervailing privacy or non-privacy interests.” (Ibid.)
Requiring L.F. to submit to photographs at the direction of probation or law enforcement furthers the important interest of allowing the court to assess her compliance with gang conditions targeting her dress and appearance. It also facilitates her identification in the event of other contacts with law enforcement. Given this latter purpose, we cannot say that the condition must be tailored to photographs of gang tattoos and markings in order to withstand constitutional scrutiny. We note that even without this condition, L.F. would be subject to searches of her person; the additional intrusion of a photograph (which would, presumably, be kept in a confidential juvenile court file) does not amount to a serious violation of her privacy.
D. Oral Advisement of Probation Conditions
Finally, L.F. argues that the probation conditions were unenforceable because the Mendocino County court did not recite each of them orally at the hearing at which they were imposed. We disagree. Probation conditions in a juvenile case “ ‘need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and the probationer has a probation officer who can explain to him the contents of the order.’ ” (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1155.)
DISPOSITION
The juvenile court’s written “Findings and Orders, ” issued on October 19, 2010, is modified in the following respects:
Paragraph No. 21 shall be modified to read: “Said minor shall not be a member of, act in furtherance or for the benefit of, or associate with any organization, association or group of three or more that the minor knows to be a criminal street gang.”
Paragraph No. 22 shall be modified to read: “The minor shall not associate with any person known to the minor as a criminal street gang member, and shall not be in any areas where gang members are known by the minor to meet or get together, or areas known by the minor or specified by the probation officer for gang-related activity.”
Paragraph No. 25 shall be modified to read: “Said minor shall not possess any articles that the minor knows to be graffiti materials, including acid, spray paint cans, marker pens and liquid shoe polish.”
Paragraph No. 29 shall be modified to read: “Said minor shall not be present at any court proceedings where she knows or the probation officer informs her that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang, unless the minor is a party, a defendant in a criminal action, or a witness to that proceeding.”
As so modified, the order is affirmed.
We concur: JONES, P.J., BRUINIERS, J.