Opinion
A101690.
11-7-2003
In re MICHAEL S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL S., Defendant and Appellant.
Defendant Michael S. appeals from an order imposing conditions of probation, challenging one of the conditions imposed. We affirm.
I. BACKGROUND
Defendant was charged, pursuant to Welfare and Institutions Code section 602, with one count of misdemeanor vandalism (Pen. Code, § 594, subd. (b)(1)), and one count of felony grand theft from a person (Pen. Code, § 487, subd. (c)). A probation report indicates that the charges stemmed from an attack on a fellow high school student at a Burger King near Deer Valley High School, in which defendant and several other students took the victims cell phone; the victim was also punched and kicked.
Defendant entered a negotiated plea of no contest to the grand theft charge, and the vandalism charge was dismissed. At the dispositional hearing, the juvenile court found defendant a ward of the court pursuant to Welfare and Institutions Code section 602, committed him to a six-month ranch program, and imposed various conditions of probation. Among those conditions, defendant was prohibited from going to any school at which he was not enrolled. Defendant filed a timely notice of appeal.
II. DISCUSSION
Defendant contends on appeal that the probation condition ordering him to stay away from campuses at which he is not enrolled is unreasonable, overbroad, and violates his constitutional rights to freedom of association and travel. In particular, he argues the condition is not reasonably related to the underlying offense, which did not take place on a school campus; that it prevents him from engaging in legitimate activities on school campuses; that it will not prevent future criminality; and that it is not narrowly tailored to his circumstances and offense.
Defendant did not object to this condition of probation when it was imposed; as a result, he has waived his objection. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151, citing People v. Welch (1993) 5 Cal.4th 228, 234-235; see also In re Abdirahman S. (1997) 58 Cal.App.4th 963, 970-971.) Even an objection that a condition of probation is constitutionally flawed must be made at the trial court to preserve the claim on appeal. (People v. Gardineer, supra, 79 Cal.App.4th at p. 151; In re Josue S. (1999) 72 Cal.App.4th 168, 170-171.) As the court in Gardineer explained, the requirement of a timely objection allows the court to modify or delete an allegedly unreasonable condition, or to explain why it is necessary in the particular case, thus discouraging the imposition of invalid probation conditions and reducing the number of appeals brought on that basis. (People v. Gardineer, supra, 79 Cal.App.4th at pp.151-152, citing People v. Welch, supra, 5 Cal.4th at p. 235.)
The court in In re Justin S. (2001) 93 Cal.App.4th 811, 814-815, recognized an exception to the general rule of waiver where the claim raises a pure question of law that can be resolved without reference to the sentencing record developed in the trial court, and defendant contends this exception applies here. In Justin S., the defendant argued that a probation condition prohibiting delinquent behavior did not give him sufficient notice of the prohibited conduct, and that a condition prohibiting him from associating with gang members was unconstitutionally overbroad. (Id. at pp. 815-816.) The court did not have to resort to the record to determine that the term "`delinquent behavior" was fairly defined by the law, and that a prohibition of association with gang members, "without restricting the prohibition to known gang members is `"a classic case of vagueness."" (Ibid.) In this case, however, it is not possible to evaluate defendants claim that the challenged probation condition is unreasonable and not narrowly tailored to his circumstances without reference to the record. In these circumstances, we conclude defendant has waived his challenge to the condition of probation.
Defendant also contends that, assuming we conclude a contemporaneous objection was required, he received ineffective assistance of counsel when his counsel failed to object to the condition. A claim of ineffective assistance of counsel will be upheld on appeal where "(1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defense to prejudice . . . . If the record sheds no light on why counsel acted or failed to act in the manner challenged, `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation], the contention must be rejected." (People v. Haskett (1990) 52 Cal.3d 210, 248, italics added; see also People v. Fosselman (1983) 33 Cal.3d 572, 581-582.)
We cannot conclude there could be no satisfactory explanation for defendants counsels failure to object to the challenged condition, even assuming the condition was impermissible. The record before the court included a lengthy discipline report from defendants school, showing a history of disruptive behavior. And defendant admitted he was, ultimately, expelled from Deer Valley High. The record also showed that, following the incident, defendant had threatened the victim at Deer Valley. Given that defendants counsel was advocating defendant remain in the custody of his guardians and not be sent to the boys ranch, it would have been reasonable for counsel to avoid any implication that defendant might want to enter school grounds unnecessarily. Moreover, immediately before the juvenile court imposed the probation conditions, defendant repeatedly interrupted the court, saying several times that statements made by the victims mother were not true. In response to the interruptions, the juvenile court judge told defendant, "I do not want to hear anymore. Im making my decision today. You keep it up, and Im going to up it." Under the circumstances, defendants trial counsel might have made a strategic decision not to prolong the hearing in order to prevent defendant from disrupting it further. Thus, on this record, we cannot conclude defendant received ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
We concur: KAY, P.J. and SEPULVEDA, J.