Opinion
E073280
05-07-2020
In re A.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.P., Minor and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Minor and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J275719) OPINION APPEAL from the Superior Court of San Bernardino County. Pamela King, Judge. Affirmed as modified with directions. William G. Holzer, under appointment by the Court of Appeal, for Minor and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant A.P. (minor) was charged by petition with one count of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)) and one count of sexual battery by restraint (§ 243.4, subd. (a)). Minor admitted the second of these allegations. After a disposition hearing, the court placed minor on summary probation for six months, which included a term forbidding minor from associating with any person under the age of 10 "and who has been approved by the probation officer." Minor appealed.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, minor argues that the above probation term is unconstitutionally overbroad and vague. The People agree that the term, as imposed, is unconstitutionally vague. We modify with directions.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying offense are taken from the probation report.
On January 28, 2018, minor was a 13-year-old boy living at a foster home. On that day, minor orally copulated a four year old living in the same foster home. Another child living in the foster home witnessed minor's actions.
On April 13, 2018, the San Bernardino County District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging minor committed a lewd act upon a child. (Pen. Code, § 288, subd. (a).) On May 23, 2019, the People orally amended the petition to add an allegation that minor committed a sexual battery by restraint. (Pen. Code, § 243.4, subd. (a).) On June 12, 2019, minor admitted the second allegation, and the court dismissed the first allegation. The court ordered minor to remain in his group home and placed him on summary probation with certain terms.
Defense counsel objected to probation term 21, which originally stated that minor could "[n]ot associate with (persons/females/males) he/she knows or reasonably should know are under the age of 18, unless in the presence of a responsible adult who is aware of the nature of his/her background and current offense, and who has been approved by the probation officer." Defense counsel requested that minor only be prohibited from associating with children under 10, and that everything after "responsible adult" be stricken. The People agreed to permitting minor to associate with persons over 10, but argued that "the approval by probation officer clause . . . is appropriate as part of [minor's] supervision regime." In response, defense counsel stated, "I don't have an issue with the adult being approved by the probation officer as long as it does not require [minor] to specifically speak to the adult, get information from the adult, provide information, then give that to probation." The court ultimately agreed to reduce the age prohibition to 10 years old, but felt that the requirement that responsible adults "who has been approved by the probation officer," was appropriate because it did not believe "probation is out there to hurt the minor. They try to work with them to be successful." The court ultimately modified the term via interlineation. The modified term required that minor "[n]ot associate with (persons/females/males) he/she knows or reasonably should know are under the age of 10 and who has been approved by the probation officer."
Minor timely appealed.
III. DISCUSSION
Minor argues the probation term that minor "[n]ot associate with (persons/females/males) he/she knows or reasonably should know are under the age of 10 and who has been approved by the probation officer," is unconstitutionally overbroad and vague. The People agree that the term, as imposed, is vague. We agree with the parties that the term must be modified, and so modify it.
The Term Requiring Minor Not Associate with Those Under 10 Who have Been Approved by the Probation Officer is Unconstitutionally Vague
Because we find that the term is unconstitutionally vague, we do not address minor's contention that the term is also unconstitutionally overbroad. --------
"Welfare and Institutions Code section 730, subdivision (b) empowers the juvenile court to '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.' " (In re Erica R. (2015) 240 Cal.App.4th 907, 911.) While we normally "review the juvenile court's probation conditions for abuse of discretion" (id. at p. 912), where a defendant challenges a probation condition on constitutional grounds, including that the term is unconstitutionally vague, this question is considered de novo (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143).
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "The vagueness doctrine bars enforcement of ' "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citations.]' [Citation.] A vague law 'not only fails to provide adequate notice to those who must observe its strictures, but also "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." [Citation.]' " (Ibid.) Thus, "[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." (Ibid.) Where a term or condition of probation is unconstitutionally vague, a reviewing court has the power to modify it to render it constitutional. (Id. at p. 892.)
We agree with the parties that the term, as imposed, is unconstitutionally vague. It prohibits minor from interacting with children under 10 who have been approved by probation. The only valid reading of such a term would mean that minor would be permitted to have unsupervised association with children under 10 when probation has not approved these associations and would be prohibited from associating with children under 10 who probation has approved. This is an obviously absurd conclusion given minor's adjudication and the probation terms necessary for proper supervision. It appears to be an unintentional misstatement by the juvenile court. It is also not supported by the record, which shows that the parties and court discussed probation's approval of responsible adults and not particular children. Thus, as imposed, the term is confusing and fails to give minor adequate notice of which persons with whom he may or may not associate. We therefore agree with the parties that the term, as imposed, is unconstitutionally vague and must be modified.
The parties agree that the term should be modified as follows: "Not associate with (persons/females/males) he/she knows or reasonably should know are under the age of 10, unless in the presence of a responsible adult who has been approved by the probation officer." We agree that this resolves the central vagueness issue and is in accordance with the on-the-record discussion between the parties and the juvenile court.
However, we also agree with minor's objection in his opening brief that the parenthetical phrase "(persons/females/males)" remains vague, as it fails to identify which of these groups is included in the term. We believe this term should be modified to just refer to "persons." This is consistent with the term as orally proclaimed by the juvenile court, which stated that, "I think term 21 should read not associate with persons minor knows or reasonably should know are under the age of 10."
Given that we find the record relatively clear regarding what the underlying intent of the court was in imposing and in modifying this term, we exercise our independent authority to correct the vagueness issue without remanding to the juvenile court. Accordingly, we modify the term to read: Not associate with persons he knows or reasonably should know are under the age of 10, unless in the presence of a responsible adult who has been approved by the probation officer.
IV. DISPOSITION
Minor's probation term number 21 is modified to read: Not associate with persons he knows or reasonably should know are under the age of 10, unless in the presence of a responsible adult who has been approved by the probation officer.
In all other respects, the judgment is affirmed. The juvenile court is directed to prepare a supplemental minute order reflecting the corrected probation terms and to notify the minor and all parties to the proceedings.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.