Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J08-01637
SIMONS, J.
Defendant Mitchell A., born in January 1995, appeals from a dispositional order adjudging him a ward of the juvenile court (Welf. & Inst. Code, § 602) and permitting him to reside with his parents under the supervision of the probation officer, after he admitted possessing a locking blade knife on school grounds (Pen. Code, § 626.10, subd. (a).) He contends the court erred in making him a ward of the court and in imposing curfew and search probation conditions. We reject the contentions and affirm.
The background facts are taken from the probation report.
On August 14, 2008, the 13-year-old defendant was a middle-school student in Brentwood. On that date, a Brentwood police officer was dispatched to the school for a report of a student in possession of a locking blade knife. The school’s vice-principal told the officer that the parent of another student had advised the vice-principal that defendant had a knife on campus and the parent was fearful defendant was going to use it against her son. The vice-principal confronted defendant, who produced a knife with a three-inch blade and a cigarette lighter.
Defendant told the police officer he was carrying the knife for personal protection “because he never knows when someone may ‘jump’ him.” Defendant said he did not intend to stab anyone or fight anyone on campus. He said he got the knife at home. He admitted he smokes cigarettes occasionally.
Juvenile Wardship Petition
On October 14, 2008, a juvenile wardship petition was filed under Welfare and Institutions Code section 602 alleging defendant’s commission of carrying a knife on school grounds (Pen. Code, § 626.10, subd. (a)) and possession of tobacco paraphernalia (Pen. Code, § 308, subd. (b)). On November 19, defendant admitted the Penal Code section 626.10 offense and the petition was sustained on that charge. The tobacco paraphernalia charge was dismissed. Defendant was found to come within Welfare and Institutions Code section 602.
Probation Officer’s Social Study and Case Assessment
In December 2008, defendant and his mother were interviewed at the probation department. Defendant appeared, “very happy,” inquisitive and “sincerely remorseful for his actions,” saying he made a “stupid choice” and did not really understand the consequences of his actions. He said he brought the knife to school “without thinking.” Although he knew it was wrong to have a weapon on campus, he did not think he would get caught. Defendant denied any gang affiliation and had no gang-related marks or tattoos.
Defendant was expelled from his school as a result of the instant offense and thereafter enrolled in a different middle school. He had no attendance or behavioral problems at the new school and his grades were “pretty good.” Defendant admitted using marijuana on at least 10 occasions in the seventh grade, but denied any marijuana use since January 2008. He also admitted occasional tobacco use. He denied ever using other drugs or alcohol. Defendant attended a few counseling sessions through his church after the incident, after which the counselor told defendant’s mother there was no need for defendant to continue because he did not appear to have mental or behavioral problems.
Defendant’s mother said that at the time of the offense, she had just moved back home with her husband and children after a year’s separation. She said that during that time the family was under a lot of stress, which may have led to defendant “act[ing] irrationally” and committing the instant offense. Defendant’s mother said that as a result of the instant offense, defendant was grounded for two weeks. She said defendant had not been in trouble before or since this incident. She described his behavior at home as “good”; he had no major behavioral problems and was “always responsible with following his 6:00 curfew.”
Defendant’s older brother has been cited for trespassing, possession of marijuana, and hit and run driving, and has spent time on informal probation.
The probation report noted that in committing the instant offense defendant acted carelessly and without much regard for his actions and the negative repercussions that could follow. Bringing a knife onto school grounds put every student on campus at risk. The report stated that prior to the offense, defendant appeared to struggle academically, although he consistently passed all his classes. His grades improved upon his transfer to the new school. He is active in his community as a church member and has a very supportive family with parents who care very much for him and want to see him be successful. He never had behavioral problems prior to the instant offense and consistently maintained good school attendance.
The probation officer opined, “[d]ue to the nature of the offense, the minor appears to need the type of supervision that probation can provide.” The probation officer recommended that defendant be adjudged a ward of the court, and be ordered to follow a strict curfew, submit to drug and alcohol testing, and pay a $25 restitution fine. It was also recommended that defendant participate in individual counseling and that the weapon be destroyed.
Dispositional Hearing
At the December 2008 dispositional hearing, the People agreed with the probation officer’s recommendation that defendant be declared a ward of the court and placed on probation at home. Defense counsel referred to the incident as an “aberration” for defendant and requested that defendant not be adjudged a ward of the court, and instead be granted six-month’s probation. (Welf. & Inst. Code, § 725, subd. (a).) The probation officer agreed that the report was “very positive.”
All further undesignated section references are to the Welfare and Institutions Code.
After adjudging defendant an indefinite ward of the court, the court stated: “I do think that the practical reality is that given what we have in the report, which is all positive, he seems to be a good student. I’m happy to set a review essentially in six months. And if he’s... done well at school,... I probably would be dismissing [his] case at the end of six months.” The court ordered defendant to continue to reside in his parent’s home supervised by probation. In addition to other standard conditions of probation, the court imposed a curfew of 6:00 p.m. to 6:00 a.m. on school nights and 8:00 p.m. to 6:00 a.m. on other nights, and ordered defendant to submit to search and seizure by any peace officer at any time with or without a warrant.
Defendant filed a timely notice of appeal from the disposition order.
DISCUSSION
I. The Court’s Wardship Determination Was Not an Abuse of Discretion
Defendant contends the court erred in adjudging him a ward of the court without any evidence that removing custody from his parents was necessary. The parties agree that the court’s decision to adjudge defendant a ward of the court is reviewed for abuse of discretion. (In re Todd W. (1979) 96 Cal.App.3d 408, 416.) In conducting our review we must indulge all reasonable inferences to support the juvenile court’s decision and will reverse only if the court has acted beyond the scope of reason. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330; In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.)
Section 725 provides in pertinent part, “After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows: [¶] (a) If the court has found that the minor is a person described by Section 601 or 602, by reason of the commission of an offense other than any of the offenses set forth in Section 654.3, it may, without adjudging the minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months.... [¶] (b) If the court has found that the minor is a person described by Section 601 or 602, it may order and adjudge the minor to be a ward of the court.”
Section 602, subdivision (a), provides in relevant part: “[A]ny person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”
Defendant does not dispute the legal sufficiency of the petition which alleged he was within the provisions of section 602, or that substantial evidence supports his commission of a criminal offense which satisfied the court’s section 602 determination.
“One of the purposes of the Juvenile Court Law is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will best serve his welfare and ‘preserve and strengthen the minor’s family ties.’ ” (In re Wayne J. (1979) 97 Cal.App.3d 776, 780 (Wayne J.), quoting, § 202.) Thus, the Juvenile Court Law “ ‘ “ ‘contemplates a progressively restrictive and punitive series of disposition orders... —namely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, [Division of Juvenile Facilities] placement.’ ” [Citation.]’ [Citation.]” (Wayne J. at p. 780.)
“Inherent in a section 602 wardship is the continuing jurisdiction over the minor by the court which can place him in the home of his parents under probation supervision (§ 727[,] made applicable by § 730.)... The benefit of probation to the minor under the circumstances is that he is able to remain at home and is given needed guidance and discipline which his parents should, but in many cases cannot or will not give him, and he and his parents are afforded the assistance of a professional counselor in the person of the probation officer.” (Wayne J., supra, 97 Cal.App.3d at pp. 782-783.)
Under section 727, subdivision (a), the court, in its discretion, may order a ward to be on probation with or without the supervision of the probation officer.
In determining a proper disposition for a minor, the juvenile court must consider, “the circumstances and gravity of the offense committed by the minor.” (§ 725.5; In re Robert H., supra, 96 Cal.App.4th at p. 1329.) The court must also consider the probation officer’s social study of the minor and any other relevant and material evidence offered. (§ 706.)
In this case, the evidence supports the court’s determination to adjudge defendant a ward of the court. Bringing a knife onto his middle school campus was a serious offense which could have had very significant consequences. Defendant’s statement that he brought the knife to school for protection and the concern of a fellow student’s parent that defendant might harm her son, support a reasonable concern that defendant was prepared to use the knife at school, in a potentially violent conflict with other students. By his admission, defendant had smoked marijuana on at least 10 occasions in the seventh grade and occasionally smokes cigarettes. He had previously struggled academically. In addition, defendant’s 17-year-old brother had been cited for trespassing, possession of marijuana, and hit and run driving, and had spent time on informal probation. Thus, despite assertions by defendant’s mother that the incident was the result of “family stress” which caused defendant to “act irrationally,” and by defense counsel that the incident was merely an “aberration,” the court acted within its discretion in determining that defendant’s welfare would be best served under the jurisdiction of the juvenile court, so that he could receive the discipline and guidance necessary while preserving and strengthening his family ties by residing at home with his parents.
For these reasons we also reject defendant’s assertion that, because less intrusive alternatives to wardship existed, the wardship order violated the family’s substantive due process rights.
II. The Early Curfew Condition Was Properly Imposed
Defendant next contends the court abused its discretion in imposing an early curfew. He argues the curfew curtails his early evening freedom of movement and is constitutionally overbroad in that it is not related to any aspect of the offense or his social history, and is not reasonably related to future criminality. In addition, defendant argues the curfew condition is not carefully tailored and reasonably related to any compelling state interest and therefore restricts his First Amendment right to freedom of movement and his parents’ due process rights to rear him without governmental interference.
As we noted above, the court imposed a curfew of 6:00 p.m. to 6:00 a.m. on school nights and 8:00 p.m. to 6:00 a.m. on other nights.
A. Forfeiture
Defendant concedes he did not object to the curfew condition below, but asserts his constitutional overbreadth challenge presents a question of law and therefore is not forfeited by failure to object. Alternatively, he requests that we exercise our discretion to review the claim and strike or modify the curfew condition.
The doctrine of forfeiture on appeal applies if the objection involves a discretionary sentencing choice or unreasonable probation conditions “premised upon the facts and circumstances of the individual case.” (In re Sheena K. (2007) 40 Cal.4th 875, 885, 889 (Sheena K.).) However, Sheena K. clarified that the forfeiture doctrine does not apply to a challenge to a probation condition on constitutional grounds of vagueness or overbreadth where the issue presents a pure question of law capable of being resolved without reference to the particular sentencing record developed in the trial court. (Id. at p. 887.)
Here, Sheena K. compels the conclusion that defendant forfeited any claims as to the reasonableness of the curfew condition. The parties dispute whether the overbreadth claim is a pure question of law. Assuming, arguendo, the overbreadth claim is forfeited, we consider the merits of the claim to obviate an ineffective assistance of counsel claim.
B. Merits
Pursuant to section 730, subdivision (b), the juvenile 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.” The court has broad discretion in formatting juvenile probation conditions, and may impose a condition that is reasonable for a juvenile although it is not reasonable for an adult. (In re R.V. (2009) 171 Cal.App.4th 239, 246-247.) The court may also impose a condition that infringes on constitutional rights so long as that condition is tailored specifically to meet the needs of the juvenile. (In re Tyrell J. (1994) 8 Cal.4th 68, 81; In re Michael D. (1989) 214 Cal.App.3d 1610, 1616.) This power of the juvenile court is founded on the notion that the state functions as the minor’s parent once the minor is adjudged a ward of the court. Thus, in determining a question such as whether a juvenile’s probation condition is constitutionally overbroad, we look to whether that condition “is consistent with the rehabilitative purpose of probation and constitutional parental authority.” (In re Frank V. (1991) 233 Cal.App.3d 1232, 1243.)
Defendant argues that the early curfew condition was imposed without regard to his social history or present needs and therefore was not carefully tailored and reasonably related to any compelling state interest.
Section 729.2 provides in relevant part: “If a minor is found to be a person described in Section 601 or 602 and the court does not remove the minor from the physical custody of the parent or guardian, the court as a condition of probation, except in any case in which the court makes a finding and states on the record its reasons that that condition would be inappropriate, shall: [¶]... [¶] (c) Require the minor to be at his or her legal residence between the hours of 10:00 p.m. and 6:00 a.m. unless the minor is accompanied by his or her parent or parents....”
Section 729.2 “serve[s] as a floor, not a ceiling, for juvenile probation conditions.” (In re Walter P. (2009) 170 Cal.App.4th 95, 99-100 (Walter P.), citing In re Jason J. (1991) 233 Cal.App.3d 710, 719 (Jason J.) [“affirming probation condition requiring curfew from ‘dark’ to 6 a.m.”], disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1499, 1502 (Laylah K.) [“affirming probation condition requiring 8:00 p.m. to 5:00 a.m. curfew”].) A curfew condition more restrictive than that in section 729.2 may be imposed within the court’s discretion to serve the court’s mission to rehabilitate the minor and strengthen family ties. (Walter P., at p. 102.) In Laylah K., the curfew condition was upheld against constitutional challenge where it was tailored to the minor’s gang involvement and need for greater parental supervision. (Id. at p. 1502.)
Here, in imposing the curfew, the court made clear that if defendant was out with a parent, he could stay out later than the curfew time so as to do things together as a family. The court also stated, “and mom or dad, you can always require him to come home earlier. If his grades weren’t as good as they were, I would set a much earlier curfew, but I assume you will probably do that if you see any slippage in there.”
Based on the record before us, the curfew condition was tailored to defendant’s need for parental supervision. At the time of the wardship, defendant was 14 years old and already under a 6:00 p.m. curfew set by his parents. Thus, the curfew imposed by the court was arguably less restrictive than that imposed by defendant’s parents. Moreover, there is no evidence in the record that the effect of the court-imposed curfew was to curtail his early evening freedom of movement. That the curfew imposed by the court was similar to that imposed by defendant’s parents belies defendant’s claim that it impacted his parents’ rights to rear him. Instead, the court’s curfew reinforced the curfew already set by the parents. Defendant’s use of marijuana and cigarette smoking, in addition to the circumstances involved in his committing the instant offense, support the court’s implied determination that greater parental supervision was necessary. Defendant has failed to establish any constitutional violation as a result of the curfew imposed.
III. The Search Condition Was Properly Imposed
Finally, defendant contends the search condition imposed should be stricken because it is constitutionally overbroad in that it was “an unnecessary response, unrelated to the legitimate government objective of rehabilitating [him] and preventing the presence of weapons at school.”
Defendant again concedes he did not object to the search condition below. As we determined above, even assuming the overbreadth claim is forfeited, we consider the merits of the claim to obviate an ineffective assistance of counsel claim.
In particular, defendant argues that the probation conditions requiring him to attend counseling, obey his parents’ directions and cooperate at school were adequate to serve the government’s interest in controlling his conduct.
“ ‘[T]he condition of probation permitting police... to conduct warrantless searches is imposed by the juvenile court to serve the important goal of deterring future misconduct.’ [Citation.]” (In re Jaime P. (2006) 40 Cal.4th 128, 132.) The seriousness of defendant’s offense, his being in possession of both the knife and a lighter on his school campus, and his admitted use of cigarettes and prior use of marijuana all suggest the possibility of future criminality, justifying the search condition imposed.
DISPOSITION
The order is affirmed.
We concur. JONES, P.J., NEEDHAM, J.