Opinion
F075795
02-14-2018
In re ERIK V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ERIK V., Defendant and Appellant.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJD070288)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Robert Anthony Fultz, Judge. R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Detjen, J.
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BACKGROUND
The Tulare County District Attorney filed a juvenile wardship petition alleging Erik V., a minor, (1) willfully resisted, delayed, or obstructed a peace officer in the performance of his duties (Pen. Code, § 148, subd. (a)(1)); and (2) was within the jurisdiction of the juvenile court (Welf. & Inst. Code, § 602, former subd. (a)). Following a contested jurisdiction hearing, the court found Erik violated Penal Code section 148, subdivision (a)(1). At the disposition hearing, Erik was declared a ward of the court and placed on probation while in the custody of his parents. The terms and conditions of his probation included the requirements he (1) be at his place of residence between 9:00 p.m. and 6:00 a.m., unless he was with a parent or received prior permission from his probation officer; and (2) pay all or part of the costs associated with drug testing.
Subsequent statutory citations refer to the Welfare and Institutions Code unless otherwise indicated. --------
On appeal, Erik challenges the home curfew and payment conditions. For the reasons set forth below, we conclude the probation condition requiring Erik to pay the costs of drug testing must be vacated. As modified, the probation order is affirmed.
DISCUSSION
I. Erik forfeited his claims regarding the home curfew condition.
"The juvenile court is authorized 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 Edward B. (2017) 10 Cal.App.5th 1228, 1232, quoting § 703, subd. (b).) "Consistent with this mandate, the juvenile court is recognized as having ' "broad discretion in formulating conditions of probation" ' [citation], and the juvenile court's imposition of any particular probation condition is reviewed for abuse of discretion [citation]." (In re D.G. (2010) 187 Cal.App.4th 47, 52.) "The juvenile court's discretion in imposing conditions of probation is broad but not unlimited." (In re Edward B., supra, at p. 1233.) "Our Supreme Court has stated criteria for assessing the validity of a probation condition: Upon review, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality." ' " (Ibid., quoting People v. Lent (1975) 15 Cal.3d 481, 486.) "An appellate court will not disturb the juvenile court's broad discretion over probation conditions absent an abuse of discretion." (In re Walter P. (2009) 170 Cal.App.4th 95, 100.)
"[F]ailure to timely challenge a probation condition on . . . Lent . . . grounds in the trial court waives the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 237.) Erik concedes he did not object to the home curfew condition at the disposition hearing.
Erik contends, however, the home curfew condition is "unconstitutionally overly broad." Our Supreme Court held "Welch's forfeiture rule should not extend to a facial challenge to the terms of a probation condition on constitutional grounds of vagueness and overbreadth" (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 (Sheena K.)), so long as the constitutional challenge presents "a pure question of law" (id. at p. 887). It explained:
"[A]n appellate claim—amounting to a 'facial challenge'—that phrasing or language of a probation condition is unconstitutionally vague and overbroad . . . does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court. [¶] . . . [¶]
". . . [A] challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law. . . . [¶] . . . [¶]
". . . We caution, nonetheless, that our conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground. . . . [W]e do not conclude that 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.]" (Sheena K., supra, 40 Cal.4th at pp. 885, 887, 889.)
Here, Erik argues the court was required to impose a home curfew condition pursuant to section 729.2, subdivision (c), which reads:
"If a minor is found to be a person described in Section 601 or 602 and the court does not remove the minor from the physical custody of the parent or guardian, the court as a condition of 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, shall: [¶] . . . [¶] . . . [r]equire the minor to be at his or her legal residence between the hours of 10:00 p.m. and 6:00 a.m. unless the minor is accompanied by his or her parent or parents, legal guardian or other adult person having the legal care or custody of the minor."Because the court imposed an earlier start time of 9:00 p.m. and "did not state any reasons as to why it failed to impose the curfew contained in section 792.2" (boldface & capitalization omitted), it allegedly contravened this statute. This does not appear to be an overbreadth challenge. (See In re E.O. (2010) 188 Cal.App.4th 1149, 1153 ["The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights . . . ."].) In any event, Erik's argument does not present a pure question of law per Sheena K. because it would have us review the particular sentencing record developed in the juvenile court. His argument cannot be raised for the first time on appeal.
II. Payment of probation costs cannot be imposed as a probation condition.
Erik contends the court erroneously imposed payment of drug testing costs as a probation condition. The Attorney General agrees, as do we. "[T]he trial court may order defendant to pay for costs of probation . . . , but may not condition defendant's grant of probation upon payment thereof." (People v. Hart (1998) 65 Cal.App.4th 902, 907.) "[A]ny order for payment of probation costs should be imposed not as a condition of probation but rather as a separate order." (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1068.)
DISPOSITION
The portion of the probation order requiring Erik to pay all or part of the costs associated with drug testing is vacated. The case is remanded to the trial court for proceedings consistent with this opinion. As modified, the probation order is affirmed.