Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. J214494, Francis M. Devaney and Amalia L. Meza, Judges.
NARES, Acting P. J.
The juvenile court declared William G. III a ward (Welf. & Inst. Code, § 602) after sustaining a petition that he committed lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and annoyed and molested a child under the age of 18 (Pen. Code, § 647.6, subd. (a)), a misdemeanor. The court placed William on probation, conditioned on, among other things, that he not associate with children under the age of 12 and not frequent places where children under the age of 12 congregate unless in the company of an adult who is at least 21 years of age and aware of the offenses William committed.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS
In February 2007 William, then 13 years old, his father and his sister lived in the home of Micah H. and O.H., along with their children P.V., 17, and Malachi H., four. Micah and William's father were business partners.
On February 5 at about 9:00 p.m., O.H. was checking on her children and discovered Malachi was not in his bedroom and not with her husband. O.H. went to William's bedroom to look for Malachi; she opened the bedroom door without knocking. William was lying on his bed completely naked and facing Malachi, who was kneeling on the bed in front of William. Malachi was shirtless and his pants and underwear were pulled down to his knees. Malachi's exposed genitals were about six inches from William's face. William's left hand was on Malachi's right thigh near the buttocks.
O.H. screamed for her husband when she walked in the bedroom. William covered himself with a blanket. Both Malachi's father and William's father ran to the bedroom. Micah observed William standing naked against the wall with a half-erect penis and a terrified look on his face.
At the adjudication hearing, the court (Judge Meza) sustained the section 602 petition, finding beyond a reasonable doubt that William committed lewd and lascivious acts on Malachi and molested him. The court also stated the overall maximum term of confinement was eight years four months.
At the dispositional hearing, the court (Judge Devaney) declared William a ward of the court and granted probation, conditioned on, among other things, that he complete 40 hours of community service and
"not associate with minors under the age of 12, and . . . not frequent places where minors under the age of 12 congregate, unless in the company of a responsible adult over the age of 21 who is aware of the allegations filed against the minor and aware that the minor is on probation for [Penal Code section] 288[, subdivision] (a) [and Penal Code section] 647.6[, subdivision] (a)]."
Noting that William was in juvenile hall for three weeks and then on home supervision for five weeks, the court placed William in his father's custody during probation. William's counsel did not object to any of the probation conditions.
DISCUSSION
I. Statement of Maximum Term of Confinement
William contends the court erred by setting a maximum term of confinement and the statement should be stricken from the record. We agree.
The maximum term of confinement only applies when a ward is placed in an out-of-home facility; it does not apply when a ward is placed in his or her parent's custody while on probation. Under section 726, subdivision (c), when a ward is removed from the physical custody of his parents or guardians under section 602, the juvenile court must specify the maximum term of confinement, which cannot exceed the time of confinement allowable for an adult convicted of the same offense. Section 726, subdivision (c) applies to all wardship cases except those in which the juvenile court places the minor with a parent under probationary supervision. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.) When a minor is not removed from the custody of parents or guardians, imposition of a maximum term of confinement is not required because it has no legal effect. (Id. at p. 574.)
A more specific statute, section 731, subdivision (c), applies only when the minor is committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (formerly, the Department of the Youth Authority). In such cases, the statutory provision "unambiguously provides that the juvenile court has discretion to a set a maximum term of physical confinement, based on the facts and circumstances of the case, so long as that term does not exceed the maximum period that could be imposed on an adult convicted of the same offense." (In re Sean W. (2005) 127 Cal.App.4th 1177, 1183.)
Here, the juvenile court was not required to set a maximum term of confinement because appellant was released to the custody of his parents following the disposition hearing. Thus, neither section 726, subdivision (c) nor section 731, subdivision (c) (see fn. 2, ante) applied in this case and will not apply in the future absent further proceedings to remove William from his parent.
A maximum term of confinement is of legal significance when announced at the disposition hearing if the court decides the ward is to be removed from the custody of the parent. Moreover, here the maximum term of confinement announced at the adjudication hearing was calculated incorrectly because it was based on both the felony lewd and lascivious act offense and the misdemeanor child molestation. Under Penal Code section 654, an act punishable in different ways by different provisions of the Penal Code may be punished under only one of those provisions. The true findings on lewd and lascivious acts count and the misdemeanor child molestation count were based on the same conduct by William. Under Penal Code section 654, any punishment imposed for the child molestation must be stayed.
William requests that we order the reference to the maximum term of confinement be stricken from the record. He maintains that there is a "real risk" the court would impose a term of eight years four months if his probation is revoked in the future.
Relying on In re Ali A., supra, 139 Cal.App.4th 569, the Attorney General contends that the court's error was harmless. In In re Ali A., supra, 139 Cal.App.4th at pages 573-574, the Court of Appeal reasoned that, when a juvenile is not physically confined, he or she suffers no harm if his or her maximum period of confinement is determined erroneously because "the maximum term of confinement contained in the current dispositional order is of no legal effect." The Court of Appeal also rejected the minor's request to strike the erroneous maximum term of confinement. (Id. at p. 574, fn. 2.)
We generally agree with the reasoning and result In re Ali A., supra, 139 Cal.App.4th 569. Here, we are remanding this matter so the court can amend a probationary condition (see part II, post). Thus, as a practical matter and in the interest of judicial economy, we direct the juvenile court to also correct this error on remand by deleting the maximum term of confinement from its minute order for the adjudication hearing.
II. Probation Condition
William contends the court erred by imposing the probation condition prohibiting him from associating with children under the age of 12 and frequenting places where children under the age of 12 congregate unless in the company of a responsible adult who is at least 21 years old and aware of William's offenses and aware of William's probationary status. William asks that we order the condition be amended in two respects.
Because William's counsel did not object to the probation condition, we must initially consider whether the failure to raise his objections in the juvenile court bars him from doing so on appeal. Our Supreme Court recently resolved a conflict between the courts of appeal on this question in In re Sheena K. (2007) 40 Cal.4th 875 (Sheena). The court held that the doctrine of forfeiture on appeal does not apply to challenges to probation conditions based on "facial constitutional defects" that do "not require scrutiny of individual facts and circumstances." (Id. at pp. 885, 886.) However, the forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions "premised upon the facts and circumstances of the individual case." (Id. at pp. 885, 889.) The forfeiture doctrine does not apply to William's first challenge to the probation condition, which involves a facial constitutional defect.
First, William argues that condition is unconstitutionally vague and over broad because it does not contain a knowledge requirement. (See In re Justin S. (2001) 93 Cal.App.4th 811, 816.) This challenge has not been waived. (Sheena, supra, 40 Cal.4th at p. 885.) The Attorney General concedes that William's substantive point has merit and does not oppose the modification of the probation condition to prohibit William's unsupervised association with minors whom he knows or reasonably should know are under the age of 12. We agree.
Second, William argues that because children as young as nine, 10 and 11 years old might attend his school, the prohibition against associating with children under the age of 12 should be modified to prohibit associating with children under the age of nine. William also notes the child whom he molested was four years old and claims the probation condition is not tailored narrowly enough to serve the state's interest of reforming and rehabilitating delinquents.
The court's choice of setting 12 as the cutoff age requires "scrutiny of individual facts and circumstances." (Sheena, supra, 40 Cal.4th at p. 885.) It " '[does] not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Id. at p. 889, citing People v. Welch (1993) 5 Cal.4th 228, 235.) Thus, William's challenge to the "under the age of 12" language has been waived because it was not raised in the juvenile court. (Sheena, supra, 40 Cal.4th at p. 889.) Even if this challenge were not waived, it lacks merit. (Ibid. [at times appellate court exercises its discretion to hear a constitutional claim despite holding claim has been forfeited].)
William's counsel told the juvenile court that William and his father had read the probation report and agreed with the report's recommendations. Although the probation report recommended that William be prohibited from associating with children under the age of 11, trial counsel did not object when the court told William he was not to have contact with children under the age of 12. The court added: "Stay out of elementary school grounds, play grounds, where little kids are playing. Chuck E. Cheese restaurants, anywhere like that where young children gather, you're not going to be there."
The supervision aspect of the probation condition and the juvenile court's comments belie any claim that William would violate his probation by associating with children in his classes. Further, we disagree with the notion that the cutoff age of 12 was not sufficiently tailored to meet the state's interest in rehabilitation.
The juvenile court has wide discretion in imposing conditions of probation─ perhaps even wider than a trial court has when granting probation to an adult. (Sheena, supra, 40 Cal.4th at p. 889.) " '[A] condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " (Ibid.)
In exercising its discretion to impose probation conditions, the court should consider all the attendant facts and circumstances as disclosed by the evidence and the probation officer's report. (People v. Ingram (1969) 272 Cal.App.2d 435, 439.) The probation report notes that William was suspended from school in the seventh grade for "inappropriate mutual sexual behavior" with a middle-school classmate. Given all the circumstances, using 12 as the cutoff age was not an abuse of discretion even though William's sex crimes involved a four-year-old child.
DISPOSITION
The matter is remanded to the juvenile court with directions to (1) strike the maximum term of confinement references in the court minutes of the adjudication hearing, and (2) modify the probation condition restricting William's unsupervised association with children under the age of 12 to expressly include a knowledge requirement. In all other aspects, the order of wardship is affirmed.
WE CONCUR: HALLER, J., McINTYRE, J.