Opinion
E066875
09-07-2017
In re G.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. G.B., Defendant and Appellant.
Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Minh U. Le, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J265009) OPINION APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed. Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, G.B. (Minor), admitted a misdemeanor allegation of battery against the victim, his girlfriend. (Pen. Code, § 243, subd. (e)(1); count 2.) After a contested dispositional hearing, the juvenile court found Minor a ward of the court and placed him on formal probation. On appeal, Minor contends the court abused its discretion by declaring Minor a ward of the court and placing him on formal probation. Minor additionally argues that two of his probation terms are unconstitutionally vague and one is overbroad. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 2016, an officer arrived at the campus of a high school in response to a fight. The officer met with the victim, who reported that Minor "forcefully took her phone from her and threw it on the ground, shattering the screen. [Minor] then slapped her on the left side of her face three times, causing a small laceration under her left eye." School security separated them; however, Minor contacted the victim again, grabbed her arm, and forced her to walk approximately 100 yards to a closed hallway against her will. Once there, they were separated by security again. The victim had sustained a 1.5 inch scratch on her right arm and a cut on her right elbow after the latter incident.
The People filed a juvenile wardship petition alleging Minor had committed felony second degree robbery (§ 211; count 1), misdemeanor battery against his girlfriend (§ 243, subd. (e)(1); count 2), and battery on school grounds (§ 243.2, subd. (a)(1); count 3). On April 18, 2016, the juvenile court detained Minor and released him to his parents on house arrest.
The court additionally ordered that Minor not continue to attend school, but obtain and complete his schoolwork in some other manner.
On July 11, 2016, Minor admitted the count 2 allegation. In return, the remaining counts were dismissed. The parties stipulated that the police report would provide the factual basis for the plea.
The document referred to actually appears to be a juvenile probable cause declaration authored by the officer.
On July 26, 2016, the probation officer filed a report in which he recommended the court find Minor a ward of the court and place him on formal probation. The probation officer noted that after Minor was initially detained, he "reported that he was attacked by the victim and was only trying to defend himself." He said that the victim "started punching him with a closed fist." Minor's mother noted that she had viewed the video of the incident and believed Minor was being overcharged. She observed that Minor was respectful and well behaved. She did not believe he was involved with any drugs or alcohol.
The victim's mother reported the victim and Minor had been dating for approximately one year. During that time "there ha[d] been numerous incidents of domestic violence between them," in which Minor was the aggressor.
Minor's school discipline record reflected that he had several referrals for negative behavior dating back to elementary school: On October 8, 2007, Minor and another student were fighting on the playground. On November 8, 2007, Minor fought with a girl at school. On February 25, 2008, Minor received a referral for inappropriately touching two girls. On February 28, 2008, Minor punched another student in the stomach after the student accidentally hit him with a ball. On August 19, 2008, Minor was suspended for choking another student. On January 29, 2009, Minor waited outside a classroom in order to beat another student whom he then placed in a headlock. On May 12, 2010, Minor threatened to beat another student. On September 21, 2010, Minor was in a fight on the way to recess. On May 9, 2011, Minor walked up to and pushed another student and threatened to fight a third student. On May 31, 2011, Minor walked up to another student and kicked him. On August 10, 2011, Minor threatened to beat other students. On October 19, 2011, Minor pushed another student and then fought with him. In the current school year, Minor had thrice been disciplined for gambling on school grounds.
Minor's grade point average had declined from 3.52 to 2.89 since he was removed from school. Minor's counsel requested a contested dispositional hearing.
The probation officer testified it was understandable that Minor's grades had dropped since he was out of school for two months. --------
On September 6, 2016, at the dispositional hearing, the juvenile court entered the probation report and video into evidence. Defendant's sixth grade teacher testified Minor stood out academically; he never displayed negative behavior toward teachers or students.
Minor's seventh grade teacher testified Minor was always respectful, always participated, and was excited to learn. He was a model student and leader. Minor was honest, trustworthy, respectful, and open to improvement. There was never a time when Minor displayed any negative behavior. Minor "was not one that would perpetuate any kind of violent or aggressive behavior." Minor was involved in Avid and won a schoolwide writing contest.
Minor's ninth grade teacher testified Minor was fun loving, polite, and helpful. Minor had been president of the ninth grade Health Academy club and played sports.
The director of youth services for Minor's school district testified that he recommended against Minor's expulsion in the instant matter because he did not consider the specific charge, fighting (Ed. Code, § 48900, subd. (a)(2)), as sufficiently serious to warrant expulsion. The director considered the video of the incident and Minor's academic record in making his recommendation. However, he had considered only the school charges, not the People's allegations in the juvenile wardship petition.
The probation officer testified he recommended wardship and formal probation due to Minor's past history and discrepancies in Minor's report about his history of discipline. The probation officer noted: "I feel that if [Minor] was able to complete a six-month summary probation, a full year of formal probation would not be a problem with him, not be an issue for him if his behavior is that outstanding. He's not going to have a problem finishing the year out . . . ." With respect to the video of the incident, the probation officer observed: "It was kind of violent towards the victim, and it did last for quite a few minutes before any security came to assist. And when security did come assist, they did not separate them the way they should have."
The court noted that it had reviewed the exhibits and the probation officer's report. "[A]fter reviewing all the evidence and hearing all the testimony, I do find that it's appropriate for [Minor] to be placed on formal probation." The court then permitted argument by both parties. The juvenile court placed Minor on formal probation as a ward of the court.
II. DISCUSSION
A. Wardship Declaration
Minor contends the juvenile court abused its discretion by declaring him a ward of the court and placing him on formal probation, particularly by focusing only on negative factors. We disagree.
After the juvenile court has found a minor to be a person described by Welfare and Institutions Code section 601 or 602, the court has discretion to dismiss the petition, render a dispositional order which places the minor on probation without declaring the minor a ward of the court, or place minor on probation after adjudging minor to be a ward of the court. (Cal. Rules of Court, rule 5.790(a); Welf. & Inst. Code, § 725.)
"In determining the judgment and order to be made in any case in which the minor is found to be a person described in [Welfare and Institutions Code] Section 602, the court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history." (Welf. & Inst. Code, § 725.5.) "[I]t must be apparent from all of the surrounding circumstances that the court at least considered the appropriate factors." (In re John F. (1983) 150 Cal.App.3d 182, 185, fn. omitted.)
We review a juvenile court's dispositional order in a juvenile delinquency case for abuse of discretion. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 485.) "An abuse of discretion occurs when the juvenile court has exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination. [Citation.]" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) A juvenile court abuses its discretion if it renders a dispositional judgment in a delinquency case without considering the factors enumerated in Welfare and Institutions Code section 725.5. (In re John F., supra, 150 Cal.App.3d at p. 183.)
Contrary to Minor's contention that the juvenile court focused exclusively on negative factors, the court expressly indicated that it had considered all the evidence and arguments of the parties. The court noted: "I am taking both counsels' arguments to heart. This is a difficult case because [Minor] has been doing so well at school. And I don't doubt any of the testimony by the teachers and the district officer that we had here. Their testimony all vouched for [Minor]. He is doing really well. He has very good behavior. I don't doubt that. What I do doubt is that they don't know the whole history. They don't know about this particular incident and the seriousness." Thus, the court explicitly referenced some of the positive circumstances regarding Minor.
Nevertheless, the court observed: "What I am looking at is the history. But what is very important to me is the incident itself. I have seen the video. And [Minor] does stand out. . . . [T]his type of aggression is not the typical type of aggression that I would normally . . . place the minor for summary probation. This is a higher level of aggression. It's a level of domestic violence that is not acceptable. And according to the reports, there have been past incidents. This type of violence is unusual in that sense. And it's something that needs to be addressed, the Court believes, under formal probation."
The court further noted: "[T]his type of violence in particular is very dangerous. According to the dispositional report, it's already been happening over and over again. It's [a] very, very dangerous area. [¶] And the victimization that your girlfriend, the victim in this case, may be going through is much more serious than a regular fight that you might have with another boy." The court's finding and ruling finds ample support in the record. The video of the incident clearly belies Minor's contention "that he was attacked by the victim and was only trying to defend himself."
In the video, Minor openly compels the victim to sit or lay down upon a cement bench on four occasions at school in front of numerous other students, thrice pushes her down into a prone position apparently placing his weight on her, and repeatedly appears to grab and hit her, all without any apparent physical provocation by the victim. Indeed, Minor appears to grab the victim even after security arrived. Thus, the court acted within its discretion in declaring Minor a ward of the court and placing him on formal probation. B. Probation Conditions
Minor contends terms 7 and 22 of his probation were constitutionally vague and overbroad. We disagree.
Term 7 of Minor's probation provides that he "[b]e home every night by curfew, 6:00 p.m. to 6:00 a.m., and not leave home unless accompanied by [a] parent/guardian or with probation officer's prior permission." Term 22 requires that he "[a]ttend school daily, exert his/her best efforts and abide by all school rules."
"A probation condition is constitutionally overbroad when it substantially limits a person's rights and those limitations are not closely tailored to the purpose of the condition." (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146 ["'. . . The Constitution, the statute, all case law, demand and authorize only "reasonable" conditions, not just conditions "reasonably related" to the crime committed.' [Citation.] [¶] Careful scrutiny of an unusual and severe probation condition is appropriate [citation]."].)
"[C]onditions of probation that impinge on constitutional rights must be tailored carefully and 'reasonably related to the compelling state interest in reformation and rehabilitation . . . .' [Citation.]" (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) Similarly, "[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. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
A court has discretion to "impose broader probation conditions on juveniles than it may [on] adults, because for juveniles, probation is not an alternative to their punishment, it is their punishment." (In re George F. (2016) 248 Cal.App.4th 734, 741.) Thus, "'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. . . .'" (In re Sheena K., supra, 40 Cal.4th at p. 889.)
The Supreme Court stated in People v. Olguin (2008) 45 Cal.4th 375 that "[a] probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' [Citation.]" (Id. at p. 382.) We view the probation conditions here in light of Olguin and presume a probation officer will not interpret them in an irrational or capricious manner. (Id. at p. 383.) If the probation officer does interpret the conditions in any arbitrary manner, Minor may then file a petition for modification of his probation condition. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer's actions].)
In the instant case, we believe term 7 is sufficiently clear that it would be read to limit Minor's movement only during his curfew. Indeed, Minor concedes as much: "Certainly, the interpretation limiting his movement after curfew makes more sense . . . ." Likewise, we do not find the condition overbroad. Minor requests that the condition be revised to allow him to attend or participate in school activities which occur during his curfew; however, nothing under the current condition prohibits such activity; Minor would merely have to obtain his probation officer's prior permission to do so or be accompanied by a parent. This does not appear to be unduly burdensome. We presume a probation officer will not withhold approval for irrational or capricious reasons. (People v. Olguin, supra, 45 Cal.4th at p. 383.)
Similarly, we do not find term 22 requiring that Minor exert his "best efforts" in school to be unconstitutionally vague. We presume a probation officer will not interpret it in an irrational or capricious manner. (People v. Olguin, supra, 45 Cal.4th at p. 383.) Thus, Minor would be expected only to maintain reasonable attendance and attain average grades in order to be deemed to have exerted his "best efforts." We acknowledge that the court in In re P.O. (2016) 246 Cal.App.4th 288 at pages 299 to 300, struck and remanded similar conditions requiring Minor to "'be of good behavior and perform well' at school or work" and another requiring him to "'be of good citizenship and good conduct'" as unconstitutionally vague because "[r]easonable minds can differ about what it means . . . ." (Id. at pp. 292 & 299.) Nevertheless, as discussed above, we will presume both Minor and the probation officer can interpret the condition in a reasonable and rational manner. Thus, term 22 is not unconstitutionally vague.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. FIELDS
J.