Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW112191-0, Jon E. Stuebbe, Judge.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Cornell, J. and Hill, J.
This is an appeal from the order of probation imposed upon a juvenile, Matthew Y. Matthew contends that one of the conditions of probation is unconstitutionally overbroad. He also contends that he is entitled to an extra day of precommitment credit. For the following reasons, we remand to the juvenile court to award the extra day of precommitment credit.
FACTUAL & PROCEDURAL BACKGROUND
On October 17, 2006, Matthew admitted to committing a lewd and lascivious act upon a child. On October 24, 2006, the juvenile court set Matthew’s maximum period of physical confinement at 8 years, less 13 days credit for time served.
The court removed Matthew from the custody of his parents, making him a ward of the Juvenile Court and vested placement and care with the probation department pending further court order. The court ordered, as a condition of his probation, that Matthew “is not to possess, use or consume any drug, nor associate or initiate contact with anyone that he knows to be involved with or in possession of the same.”
On October 15, 2007, the juvenile court conducted a one-year review of Matthew’s case plan. The court found that the progress of Matthew and his parents toward achieving placement goals was moderate. It ordered placement and care of Matthew to remain vested in the probation department. The court also stated that “[a]ll prior orders not specifically set aside or modified are to remain in full force and effect.”
On October 16, 2007, Matthew filed a timely notice of appeal.
DISCUSSION
On appeal, Matthew contends that he should have received an extra day of precommitment credit, i.e., 14 days instead of the 13 days credited by the trial court. The People concede this point. Thus, we will remand with instructions to the juvenile court to award Matthew 14 rather than 13 days of precommitment credit.
We noted that the Clerk’s Transcript indicates that the trial court awarded Matthew 23 days of precommitment credit. This appears to have been an erroneous transcription (23 instead of 13). In any case, the parties on appeal agree that 14 days of precommitment credit is the correct amount.
Matthew also seeks to modify the condition of probation requiring that he “is not to possess, use or consume any drug, or associate or initiate contact with anyone that he knows to be involved with or in possession of the same” by inserting the word “illegal” before “drug.” According to Matthew, the probation condition as currently imposed is unconstitutionally overbroad because it includes legal as well as illegal possession, use or consumption of drugs. The People argue that an appeal of the probation condition is untimely because Matthew did not file an appeal of the original probation order within 60 days, but concede, that if this Court concludes that it is timely, the People agree that we should so modify the condition of probation.
In In re Sheena K. (2007) 40 Cal.4th 875, the California Supreme Court held that a probationer does not forfeit her claim that a term of her probation is unconstitutionally vague or overbroad even though she failed to object in the juvenile court. (Id. at p. 878.) Thus, a challenge to a “facial constitutional defect in the relevant probation condition” that is “capable of correction without reference to the particular sentencing record developed in the trial court” can be heard by an appellate court. (Id. at p. 887.)
However, In Sheena K. involved a timely appeal from the order of probation. Here, in contrast, Matthew did not file a timely appeal from the order of probation that was imposed on October 24, 2006. Thus, Matthew has forfeited his right to challenge the conditions of his probation. (People v. Ramirez (2008) 159 Cal.App.4th 1412.) We note that upon remand to address the issue of precommitment credit, the juvenile court also may use that opportunity to modify the terms and conditions of probation to remedy any problems. For example, to address the issue of constitutional overbreadth, the juvenile court may modify the probation order as follows: “He is not to possess, use or consume any illegal or illegally-obtained drug, or associate or initiate contact with anyone that he knows to be involved with or in possession of the same.”
DISPOSITION
The case is remanded to the juvenile court to modify the order imposing the terms of probation as stated in this opinion.