Opinion
E073450
03-30-2020
In re B.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.C., Defendant and Appellant.
Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Heather B. Arambarri, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J281719) OPINION APPEAL from the Superior Court of San Bernardino County. Pamela P. King, Judge. Affirmed as modified. Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant B.C. (minor) was found carrying a bag of methamphetamine and a pipe in the front pocket of her pants. Following a contested jurisdictional hearing, the juvenile court found true that minor unlawfully possessed methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The court thereafter placed minor on probation on various terms and conditions in the custody of Children's Protective Services of Clark County, Nevada (Nevada CPS). Among minor's probationary terms and conditions, minor was required to "[r]eport any contact or questioning of possible law or probation violations by law enforcement to the probation officer within seventy-two (72) hours of said contact" (condition 17). Minor challenges condition 17, arguing it is unconstitutionally vague and overbroad. For the reasons explained herein, we modify condition 17.
II
FACTUAL AND PROCEDURAL BACKGROUND
On July 11, 2019, in Needles, California, San Bernardino County Sheriff's Deputy Wagner was on patrol looking for minor because she was a possible suspect in a burglary. He was flagged down by a person who stated that he knew the whereabouts of minor. After this citizen pointed at the direction where minor and another person were walking, Deputy Wagner contacted minor and searched her person. Upon searching her, Deputy Wagner found a bag containing a white crystal substance and a pipe in the front pocket of her pants. Subsequent testing revealed that the white crystal substance was 0.13 grams of methamphetamine. Detective Preston testified that 0.02 grams is the amount of methamphetamine that can constitute a single dose.
On July 15, 2019, the San Bernardino District Attorney's Office filed a juvenile wardship petition charging minor with four misdemeanor offenses: unauthorized entry of a dwelling (Pen. Code, § 602.5, subd. (a); count 1); vandalism causing less than $400 in damages (Pen. Code, § 594, subd. (b)(2)(A); count 2); and two counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); counts 3 & 4).
On August 6, 2019, prior to the jurisdictional hearing, the trial court granted the prosecution's request to dismiss counts 1, 2, and 4. Following trial, the juvenile court found true count 3.
On August 9, 2019, the court declared minor not to be a ward of the court, awarded her 30 days of credit for time served, and placed her on summary probation in the custody of Nevada CPS on various terms and conditions, including condition 17. Although defense counsel objected to other terms and conditions of minor's probation, counsel did not object to condition 17.
On August 14, 2019, minor filed a timely notice of appeal.
III
DISCUSSION
Minor argues condition 17 requiring her to "[r]eport any contact or questioning of possible law or probation violations by law enforcement" to her probation officer within 72 hours is unconstitutionally vague and overbroad. Specifically, she claims that condition 17 is unclear as to what type of contact must be reported and is overbroad because "any contact" "casts too broad of a net over activity that would otherwise not be worthy of reporting."
The record shows that minor did not object to the imposition of condition 17 in the trial court. The People do not assert that minor has forfeited her challenge to the condition but instead contend that the law enforcement contact condition is not impermissibly vague or overbroad.
Although ordinarily a defendant must object to a probation condition in the trial court in order to preserve the challenge for appellate review (see People v. Welch (1993) 5 Cal.4th 228, 234), where a condition is challenged as being unconstitutionally vague or overbroad on its face, an objection may be raised and considered for the first time on appeal (see In re Sheena K. (2007) 40 Cal.4th 875, 882 (Sheena K.)). This is because such challenges assert that the constitutional defect may be discerned from the language of the condition without reference to the facts in the record. (Ibid.) Minor's challenge to the law enforcement contact condition is a facial vagueness challenge and does not require us to consider the specifics of the record. We will therefore consider the merits of the challenge despite minor's failure to object in the trial court.
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him [or her], 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.) However, probation conditions are given "'"the meaning that would appear to a reasonable, objective reader."'" (In re I.V. (2017) 11 Cal.App.5th 249, 261 (I.V.).)
Minor relies on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), in support of her argument that condition 17 is unconstitutionally vague. The Relkin court considered a probation condition that required the defendant "to 'report to the probation officer, no later than the next working day, any arrests or any contacts with or incidents involving any peace officer.'" (Id. at p. 1196.) The defendant argued that the phrases "'contacts with' and 'incidents involving' peace officers are uncertain because one cannot determine whether those terms include occasional conversation with a police officer who lives down the street, answering an officer's questions as a witness to a crime, or participation in a demonstration where officers are present." (Id. at pp. 1196-1197.) The defendant also contended that the condition was also unconstitutionally vague "because it is subject to the '"whim of any police or probation officer,"' and unconstitutionally infringe[d] on [the defendant's] rights under the First Amendment of the United States Constitution." (Id. at p. 1197.)
The Relkin court determined that the condition was vague, but only in part. Specifically, the Relkin court concluded that "the portion of the condition requiring that defendant report 'any contacts with . . . any peace officer'" was vague because it "does indeed leave one to guess what sorts of events and interactions qualify as reportable." (Relkin, supra, 6 Cal.App.5th at p. 1197.) According to the Relkin court, it was not certain that the condition would not be triggered "when defendant says 'hello' to a police officer or attends an event at which police officers are present, but would be triggered if defendant were interviewed as a witness to a crime or if his 'lifestyle were such that he is present when criminal activity occurs,'" as the People had argued on appeal. (Ibid.) "The language does not delineate between such occurrences and thus casts an excessively broad net over what would otherwise be activity not worthy of reporting." (Ibid.)
The People contend that the condition at issue in Relkin is distinguishable from condition 17. Specifically, the People assert that condition 17 "is far more specific and narrowly tailored, as it only requires reporting of contacts that relate to possible law or probation violations." We agree in part. The contacts here relate to "any contact" "of possible law or probation violations by law enforcement." Unlike in Relkin, minor is not required to report "any [or all] contacts" with a law enforcement officer, but only those involving "possible law or probation violations."
We will nevertheless modify condition 17 as being vague. As such, we will include the word "initiated" before the phrase "by law enforcement." Once the language "initiated" is added to condition 17, this condition would appear to a reasonable, objective reader to refer to contacts of possible law or probation violations initiated by a law enforcement officer. Thus, this would not include mere greetings by minor to law enforcement officers or conversations with officers on the street or at events attended by minor. In addition, a reasonable reading of the condition as modified would sufficiently delineate between casual, random interactions between minor and a law enforcement officer, including the exchanging of pleasantries, and situations in which minor is a witness to a crime. The mere fact that there "'"'may be difficulty in determining whether some marginal or hypothetical act is covered by [a condition's] language'"'" does not render the condition "impermissibly vague." (I.V., supra, 11 Cal.App.5th at p. 261.)
IV
DISPOSITION
Condition 17 is modified as follows: "Report to the probation officer within seventy-two (72) hours any contact or questioning initiated by law enforcement about possible law or probation violations." As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.