Opinion
H051164
05-03-2024
In re C.R., a Person Coming Under the Juvenile Court Law. v. C.R., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 23JV46001A
LIE, J.The juvenile court took jurisdiction of minor C.R., made him a ward of the court, and granted him probation subject to a condition requiring C.R. and his parents to "participate in a counseling or education program as determined by the Probation Officer." But determining whether a minor or parent needs a program of education or counseling and, if so, what the general nature of that program will be is a core judicial function. Because this condition of probation improperly delegated that decisionmaking authority to the probation officer, we reverse.
I. BACKGROUND
A. The Wardship Petition
In March 2023, the Santa Clara County District Attorney filed a juvenile wardship petition under Welfare and Institutions Code section 602, alleging that C.R. came within the juvenile court's jurisdiction for committing two counts of second degree robbery (Pen. Code, § 211).
B. The Evidence at the Contested Jurisdictional Hearing
In March 2023, E.B. and his brother, Ed.B., were sitting on the bleachers at Washington Park in Sunnyvale when they were approached by C.R. and another minor. C.R. and the other minor asked E.B. and Ed.B. if they "had anything." When E.B. responded that he did not, C.R. and the other minor moved closer, asking E.B. to show them, and searched the brothers' pockets. C.R. and his companion then took away E.B.'s and Ed.B.'s phones. Later, Ed.B. flagged down a police officer and was able to identify C.R. and the other minor, who were still in the vicinity.
C. The Jurisdictional Finding and Disposition
In April 2023, the juvenile court sustained the two allegations of robbery and declared C.R. to be a ward of the juvenile court. The next month, the juvenile court placed C.R. on probation subject to numerous conditions, all imposed without objection. The probation conditions required C.R. to attend school without unexcused absences or tardies (condition 3), prohibited C.R. from using, possessing, or being under the influence of alcohol or drugs (condition 6), prohibited C.R. from possessing drug paraphernalia (condition 7), and required C.R. "and his parents participate in a counseling or education program as determined by the Probation Officer" (condition 12).
In an interview with a probation officer prior to his detention hearing, C.R. admitted to smoking cannabis twice a week.
C.R. timely appealed, and his appointed counsel filed a brief that stated the case and the facts but raised no arguable issues, citing People v. Wende (1979) 25 Cal.3d 436. We requested supplemental briefing from the parties on whether condition 12 is an unconstitutional delegation of judicial authority.
Because the breadth of the delegation represents a pure issue of law (see In re Sheena K. (2007) 40 Cal.4th 875, 888-889), we reach the merits of the constitutionality of the condition and will reverse and remand the dispositional order to the juvenile court.
II. DISCUSSION
Welfare and Institutions Code section 729.2 mandates various conditions when the juvenile court grants 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." Without this finding, unless the minor is also a dependent of the court or subject to a pending dependency petition, the court must "[r]equire the parents or guardian . . . to participate with the minor in a counseling or education program, including, but not limited to, parent education and parenting programs operated by community colleges, school districts, or other appropriate agencies designated by the court or the probation department ...." (§ 729.2, subd. (b) (hereafter § 729.2(b)).)
Unspecified statutory references are to the Welfare and Institutions Code.
Based on the wording of condition 12, we infer that the juvenile court imposed this condition, recommended by the probation department, to ensure its compliance with section 729.2. We do not, however, read section 729.2 as either requiring or authorizing a condition that merely recites the text of subdivision (b)-without designating the type of counseling or education required-or that expressly delegates to the probation department authority to determine what counseling or education C.R. or his parents must submit to.
Section 729.2(b) ensures that absent contrary findings, (1) the minor will participate in counseling or education the court deems appropriate; (2) the parents or guardians retaining custody or care of the minor will participate in those programs as needed; and (3) they may also have to participate in "parent education and parenting programs" to support the minor's rehabilitation. The juvenile court's authority to prescribe those programs (or to find them unnecessary) is broad. (See § 730, subd. (b) ["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"].)
When passing Senate Bill No. 1275 (1989-1990 Reg. Sess.), which enacted section 729.2, the Legislature stated that its purpose was in part to "mandate[] parental involvement, drug and alcohol counseling, structured probation programs monitored for compliance, and early judicial intervention with delinquent youths," and "to promote the positive development of juveniles by emphasizing the enforcement of school attendance laws and the establishment of special education and socialization programs designed for the individual needs of the minor." (Stats. 1989, ch. 1117, § 1(b), p. 4113.)
But under section 729.2(b), it is the juvenile court-not the probation department-on which the Legislature has imposed the duty to determine what type of counseling or education program would further a minor's rehabilitation. The separation of powers doctrine limits the delegation of judicial authority to nonjudicial officers, especially in the absence of judicial supervision and review of the exercise of that authority. (In re D.N. (2022) 14 Cal.5th 202, 208-209 (D.N.).) "While the probation officer may properly specify the details necessary to effectuate the court's probation conditions, it is the court's duty to determine the nature of the requirements imposed on the probationer." (People v. Smith (2022) 79 Cal.App.5th 897, 902 (Smith).) "[T]he court's order cannot be entirely open-ended." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1359.)
Although section 729.2(b) expressly allows delegation to the probation department of the authority to "designate[]" an "appropriate agenc[y]" for the type of counseling or education program the court has required, condition 12 delegates even the authority to decide the antecedent question of what counseling or education the minor or the parents need. Moreover, determining C.R.'s rehabilitative needs-what programs are" 'reasonably related to the crime of which the defendant was convicted or to future criminality'" (In re Ricardo P. (2019) 7 Cal.5th 1113, 1115) such that a failure to comply might forfeit his freedom from institutional custody-is fundamentally a judicial function. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372 [rejecting restriction imposed unilaterally by probation officer, when "it is the court's responsibility to tailor the conditions specifically to each minor"].)
In distinguishing the duty to decide the type of counseling or education program needed from the authority to designate a provider for the court-ordered program in section 729.2, we follow long-established canons of statutory construction. We presume that the Legislature intended no violation of the separation of powers doctrine when delegating authority to designate a certain provider to a probation officer under section 729.2(b), and thus did not authorize the probation department to unconstitutionally usurp judicial dispositional authority to delegate what kind of counseling or education is required. (See, e.g., Smith, supra, 79 Cal.App.5th at p. 903 [deeming unconstitutional a probation condition "entrusting the decision whether to mandate residential treatment to the probation officer"]; People v. Falsetta (1999) 21 Cal.4th 903, 912-913 ["courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity"].) We also "understand a qualifying phrase to apply only to the word or phrase that immediately precedes it and not to other words or phrases that appear earlier in a list or series." (Wilde v. City of Dunsmuir (2020) 9 Cal.5th 1105, 1127 [applying "last antecedent rule" to the taxation exemption from referendum Cal. Const., art. II, § 9, subd. (a)].) Here, "designated by . . . the probation department" modifies "agenc[y]" and not "program." (§ 729.2(b).)
Relying on In re D.N., supra, 14 Cal.5th 202, the Attorney General argues that "California courts have recognized that a juvenile court may place significant supervisory discretion in the probation department's hands, at least when the department's decisions are subject to judicial review." (Id. at p. 208.) But the Attorney General reads D.N. too broadly.
In D.N., the California Supreme Court found constitutional a condition delegating to the probation department the authority "to offer [the minor ward] community service for [future] alleged [probation] violations in lieu of pursuing a judicial proceeding." (D.N., supra, 14 Cal.5th at p. 213; id. at p. 215.) The high court analogized the challenged condition to juvenile diversion under section 654, which authorizes a probation officer, after investigating an alleged violation of criminal law, to offer a minor diversion with the consent of the minor's parent or guardian rather than enlist the district attorney to petition for wardship under section 602. (D.N., at p. 212.) Like diversion, the condition "was merely an option that the probation officer could offer to minor"-as distinct from a statute or order purporting to give the probation department "complete authority to decide whether to impose a particular condition of probation"; D.N. was thus free to refuse the offer and leave the probation department to petition the juvenile court to modify its order under section 777 or 778. (D.N., at p. 214.) Given the probation officer's statutory authority "to fashion an appropriate course of action" (id. at p. 212) that would spare the minor formal wardship proceedings for an alleged violation of criminal law, the provision at issue" 'function[ed] in the [same] spirit'" (id. at p. 213) as diversion or informal probation. The power to resolve alleged violations informally and consensually invoked "a type of power that was already within the probation department's core function, and in that respect involved no delegation of any uniquely judicial authority." (Ibid.)
Here, condition 12 does more than delegate to the probation officer the discretion to offer counseling or education programs as a mutually agreed alternative to formal proceedings to adjudicate alleged violations; it delegates to the probation officer the authority to mandate participation by both minor and parent in a program not ordered by the court, enforceable by formal proceedings under section 777, rather than an alternative to such proceedings. (Cf. D.N., supra, 14 Cal.5th at p. 211 [rejecting as inconsistent with the consensual nature of the condition minor's contention that" 'Probation [was] authorized to mandate'" unilaterally minor's performance of community service].)
The delegation here also lacks what in D.N. was a judicially prescribed limit. The condition challenged in D.N. gave the probation officer discretion-already limited to instances where the minor was alleged to have violated a (judicially imposed) condition of probation-to offer community service only up to a defined maximum number of hours. (D.N., supra, 14 Cal.5th at p. 204.) The juvenile court had already thus "determined that community service would be an appropriate response to a relatively technical or insignificant probation violation by minor, and that 50 hours was the most that minor might appropriately serve for such a violation"; it did not violate the separation of powers for the juvenile court to empower the probation department to determine the exact quantum of community service required within that limit. (Id. at p. 213.) In contrast, condition 12 omits any parameters for what type of program should be required, aside from the generic guidance that it should be a "counseling or education" program. As observed in D.N., "courts have found an improper delegation when the juvenile court has given nonjudicial persons or institutions complete discretion over a significant aspect of the court's legal control of the minor." (Id. at p. 209.)
We also reject the Attorney General's assertion that Smith, supra, 79 Cal.App.5th 897 supports condition 12. In Smith, the appellate court found that a probation condition requiring the defendant" 'to participate in any treatment/therapy/counseling program, including residential'" was an improper delegation of judicial authority. (Id. at p. 903.) Reversing the order only to the extent it delegated authority to mandate residential treatment, the court otherwise deemed the condition proper, construing it as limited to treatment, therapy, or counseling for the defendant's substance abuse. (Ibid.) The appellate court based this construction on another condition requiring the defendant to" 'complete a drug and alcohol assessment and follow through with treatment as directed by probation'" and on "the court's oral comments that [the defendant] needed treatment for her substance abuse problem." (Id. at pp. 902-903.) The Attorney General would have us read Smith as allowing us to construe the juvenile court's positive comments about C.R.'s progress as a tacit signal to the probation officer that "a residential program was not contemplated and that any program should be in the direction of furthering the already cooperative efforts of [C.R.] and his mother."
Before the jurisdictional hearing, C.R. had been released from electronic monitoring. And at the dispositional hearing, the juvenile court recognized that C.R. had a "supportive home" and that the court believed that C.R. had a "very solid foundation."
Assuming that the probation department at the dispositional hearing would have understood that the juvenile court at that point did not view residential treatment to be appropriate, we see nothing in the court's comments or probation order that would restrict a supervising probation officer from deciding that later circumstances justified mandating such a program under condition 12. And the juvenile court's positive comments about C.R.'s home environment suggested no constraint on the subject matter of the education or counseling programs the probation officer was authorized to mandate, either for C.R. or for his mother.
Unlike in Smith, nothing in the juvenile court's oral comments at the hearing or in any of the other imposed conditions suggested that the juvenile court considered or intended any narrowing of what education or counseling program might be necessary for C.R.'s rehabilitation or for his mother in support of that goal. To be sure, under conditions 6 and 7, C.R. was to abstain from possession and use of drugs or drug paraphernalia, but unlike the trial court in Smith, the juvenile court gave no indication that it considered drug education or treatment necessary to C.R.'s ability to comply with this variation on the general requirement to remain law abiding. Condition 3 independently mandates C.R.'s continued school attendance, so we do not view this condition as illuminating the universe of education programs potentially implicated by condition 12. We discern no interpretation of condition 3 that would effectively limit the probation department's discretion under condition 12 except one that would make condition 12 surplusage. So we decline the Attorney General's expansive view of what amounts to a signal clear enough to moderate the express and broad delegation of condition 12.
We express no opinion on the propriety of a condition authorizing the probation officer-in the event of a violation of conditions 6 or 7-to offer C.R. nonresidential drug treatment or education as an alternative to formal proceedings under section 777 or 778. (See D.N., supra, 14 Cal.5th 202.)
Because the record does not disclose whether the juvenile court intended condition 12 to serve a specific rehabilitative purpose under section 729.2 or whether it merely represented the probation department's boilerplate language, included in every grant of probation, we remand for the juvenile court to specify the type of counseling or education program required or to strike the condition if the court expressly finds it inappropriate.
III. DISPOSITION
The order is reversed and the matter remanded with directions for the juvenile court to either strike condition 12 with the findings required by Welfare and Institutions Code section 729.2 or modify it to specify the nature of the education or counseling the minor and his parents shall undergo.
WE CONCUR: GROVER, ACTING P.J., BROMBERG, J.