Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. FJ45124. Robin Miller-Sloan, Judge. Reversed and modified in part and affirmed in part.
Dee A. Hayashi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
R.M., a minor, appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 by reason of his having committed corporal injury to a spouse/cohabitant/child’s parent (Pen. Code, § 273.5, subd. (a)). The juvenile court declared appellant’s offense to be a misdemeanor and placed him on home probation with a maximum term of confinement of one year, imposing probation condition No. 47, among others, that, “The minor shall have only peaceful contact with victim.” Appellant contends that (1) the probation condition requiring that he only have “peaceful contact” with the victim is unconstitutionally vague and should be modified to clarify its requirements, and (2) the juvenile court erred in setting a maximum term of confinement, which should be stricken.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We reverse and modify in part and affirm in part.
FACTUAL BACKGROUND
On January 17, 2009, appellant lived with his parents and his girlfriend, A.A. with whom he had a six-month-old child. On that date, appellant and A.A. had an argument, during which appellant grabbed her, pushed her on the couch, and struck her three times in the back of the head. When she got up and walked over to their son, appellant threw a cell phone at her, striking her. As a result, A.A. suffered two 2-inch cuts to the right side of her neck.
DISCUSSION
I. “Peaceful Contact” probation condition
The juvenile court placed appellant home on probation on conditions, including that he “[shall] have only peaceful contact with the person known as [A.A.].” Appellant contends that this condition is unconstitutionally vague because it is unclear what “peaceful contact” means. Consequently, it does not give appellant adequate notice of what is required of him. We agree.
Trial courts have broad discretion to prescribe probation conditions in order to foster rehabilitation and to protect public safety. (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) “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 challenge on the ground of vagueness. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “A probation condition which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process.” (People v. Freitas, supra, at p. 750.) To avoid being void for vagueness, a probation condition ‘“must be sufficiently precise for the probationer to know what is required of him.’” (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) The challenge to a probation condition as being facially vague is a pure question of law, easily remedial on appeal by modification of the condition. (In re Sheena K., supra, at p. 888.)
As the juvenile court observed, because appellant and A.A. lived together and had a child together, the disposition was “somewhat complicated by the living situation of the parties.” It is that living arrangement that makes the “peaceful contact” condition uncertain. When two people reside together, there is a multitude of interpersonal interactions. Is every argument in which they might engage to be considered a non-peaceful contact? Is every aggravation of one of them by the other a non-peaceful contact? Do the sensibilities of each of them, which may well differ, determine what is a peaceful contact? These unanswered questions make the “peaceful contact” condition rife for uncertainty by appellant, as well as a juvenile court called upon to determine if the condition has been violated. It requires little to clarify the condition to eliminate the worst of its uncertainty. For these reasons we conclude that the “peaceful contact” condition is unconstitutionally vague.
The People argue that the “peaceful contact” condition is not vague because section 213.5, relating to issuing a protective order, is “synonymous” with the challenged probation condition. That code section enumerates the types of conduct that may be enjoined during the pendency of a dependency petition. We disagree.
While the “peaceful contact” probation condition has a similar objective to the ex parte restraining order available under section 213.5, the term “peaceful contact” is not used in that section. In any event, the challenged probation condition makes no reference to section 213.5 so as to inform the minor that the conduct set forth in that statute applies to the condition.
We therefore modify condition No. 47 to specify the conduct forbidden by it, as follows: “The minor shall only have peaceful contact with the victim, which means, not harassing, molesting, threatening, injuring, intimidating, attacking, battering, assaulting, sexually assaulting, stalking, destroying the personal property of, unlawfully disturbing the personal property of, or blocking the movements of the victim.” The enumerated noncomplying conduct is sufficient to give guidance to appellant and the juvenile court as to the parameters of the proscribed behavior.
II. Maximum term of confinement
At the disposition hearing, the juvenile court ordered appellant home on probation and set a maximum term of confinement of one year. Appellant contends that the juvenile court erred in setting a maximum term of confinement. He argues that that term is only appropriate when the appellant is removed from parental custody, as set forth in section 726, subdivision (c).
Section 726, subdivision (c) provides, in pertinent part, “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [¶] As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code....”
The People contend that while the juvenile court was not required to set a maximum term of confinement, such a term does not prejudice appellant because it has no legal effect and does not require reversal or remand. We conclude that it was error to set a maximum term of confinement and that the better course is to strike it.
In In re Ali A. (2006) 139 Cal.App.4th 569 (Ali A.), the minor was placed in the custody of his parents under the supervision of a probation officer, and the juvenile court set the maximum confinement term at three years, the upper term for the charged offense. The minor contended that the juvenile court failed to exercise its discretion in setting the maximum term of physical confinement pursuant to former section 731, subdivision (b) (now section 731, subd. (c)), because that section permits the juvenile court to set the maximum term of confinement at less than the highest of the three statutory terms for the offense. The reviewing court rejected the minor’s contention, observing that former section 731, subdivision (b) applies only to commitments to the California Youth Authority. (Ali A., supra, at pp. 572–573.) The Court of Appeal continued, “Given that the juvenile court did not commit the minor to the CYA, one may well ask why the [juvenile] court’s dispositional order included a maximum term of confinement.” (Ali A., supra, 139 Cal.App.4th at p. 573.) It concluded that since the minor had not been committed to the CYA or removed from the custody of his parents, and therefore neither former section 731, subdivision (b) nor section 726, subdivision (c) was applicable, the juvenile court had no discretion—or was not required—to set a maximum term of confinement. (Ali A., supra, at pp. 571, 573.)
Former section 731, subdivision (b), as discussed in Ali A., provided, in pertinent part: “A minor committed to the Department of the Youth Authority... may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court....”
The Ali A. court simply affirmed the order of probation, finding that the maximum term of confinement contained in the dispositional order was “of no legal effect” until such time as the minor violated probation, a section 777 hearing was held, and the court modified the current disposition and removed him from his parents’ custody. At that time, the juvenile court would have to set and/or declare a maximum term of confinement in accordance with section 726, subdivision (c) and, if applicable, section 731, subdivision (b). (Ali A., supra, 139 Cal.App.4th at pp. 573–574.) Concluding that the minor was “not prejudiced by the presence of [the maximum confinement] term,” the court held that there was “no basis for reversal or remand in this case.” (Id. at p. 574.) In this regard, the court noted, “The minor suggests that if this maximum term of confinement is not stricken and he is later committed to the CYA, the judge responsible for that disposition may believe he or she is required to impose the three-year maximum term contained in the present order. We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect.” (Id. at p. 574, fn. 2.)
We agree with appellant that the maximum term of confinement is void and of no effect. We disagree with Ali A. that no remand or reversal is required. Appellant is entitled to a dispositional order that accurately reflects the punishment imposed upon him at the time of the dispositional hearing. Not only is the setting of a maximum term of confinement not required where, as here, a minor is not removed from the physical custody of his or her parents, but, should future proceedings result in a commitment to the Division of Juvenile Facilities, the maximum term of confinement gratuitously set at the time probation is granted may not be the term ultimately imposed. (Former § 731, subd. (b).) Rather than trusting or assuming that a future court will refer to an appellate opinion contained in the file if further proceedings occur upon violation of probation, we believe the better practice is to strike the order setting a maximum term of confinement. (See In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
DISPOSITION
The order of wardship is reversed and modified by striking the order setting a one-year maximum term of confinement and modifying probation condition No. 47, to read as follows: “The minor shall only have peaceful contact with the victim, which means, not harassing, molesting, threatening, injuring, intimidating, attacking, battering, assaulting, sexually assaulting, stalking, destroying the personal property of, unlawfully disturbing the personal property of, or blocking the movements of the victim.” In all other respects, the order of wardship is affirmed. The juvenile court is directed to correct the minute order of the disposition hearing accordingly.
We concur: BOREN, P. J. DOI TODD J.