Opinion
A151196
05-02-2018
In re MARCO R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARCO R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43209)
Eighteen-year-old Marco R. appeals from a juvenile court order imposing a probation condition requiring him to stay away from schools where he is not enrolled. He contends that the stay-away condition is unconstitutionally vague and overbroad. We disagree and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
While conducting a truancy sweep near a Fairfield high school in November 2016, a police officer saw a teenager, later identified as Marco R., sitting in the driver's seat of a car. At the time, Marco R. was a student at a continuation school that shares the same campus as the high school. In response to the officer's questioning, Marco R. said he had been suspended from school and had a driver's permit. Such a permit allows a minor to drive a car, but only if an adult is also in the car. The officer told Marco R. to walk home and warned him that he would be cited if caught driving a car.
About an hour later, the officer saw Marco R. driving in the same car in which he had been sitting earlier. As the officer turned around his patrol car to initiate a traffic stop, he saw Marco R. pull over to the side of the road and exchange seats with a passenger in the car. The officer then arrested Marco R.
Two months later, in January 2017, an administrator at the continuation school broke up a fight in the school parking lot and realized afterward that he was missing his walkie-talkie radio. About five to ten minutes later, he was listening on another radio and heard Marco R. make vulgar remarks. The next day, the administrator saw Marco R. in a corridor and called out to him. Marco R. ran into a classroom and dropped the administrator's missing walkie-talkie there. Marco R. later indicated that he ran away because he did not want to get caught with the walkie-talkie.
As a result of these events and another incident, the Solano County District Attorney filed a petition to have Marco R. declared a ward of the court. The operative petition included two counts alleging that Marco R. drove a vehicle without a license, one count alleging that he left the scene of an accident resulting in injury to another person, and one count alleging that he received stolen property worth no more than $950. A contested jurisdictional hearing was held in March 2017, and the juvenile court found the allegations true, except it reduced the count of leaving the scene of an accident resulting in injury to another person to the lesser included offense of leaving the scene of an accident causing property damage (Veh. Code, § 20002, subd. (a)).
The petition was filed under Welfare and Institutions Code section 602, subdivision (a). The two counts for driving a vehicle without a license were alleged under Vehicle Code section 12500, subdivision (a), the count for leaving the scene of an accident resulting in injury to another person was alleged under Vehicle Code section 20001, subdivision (a), and the count for receiving stolen property was alleged under Penal Code section 496, subdivision (a).
At the April 2017 dispositional hearing, the juvenile court declared Marco R. a ward of the court and placed him on probation. Among the various probation conditions the court imposed was one requiring Marco R. to "stay away from any school" in which he is "not enrolled." At the time of the hearing, Marco R. was attending a different school, having been expelled from the continuation school. He filed a notice of appeal the day after the hearing.
II.
DISCUSSION
Marco R.'s sole appellate challenge is to the probation condition requiring him to "stay away from any school" in which he is "not enrolled." He contends that the stay-away condition is vague because it does not give him notice of "the distance he should maintain from a school where he is not enrolled" and does not include a scienter requirement. He also claims that the condition is overbroad because "complying with [it] could infringe on his constitutional right to travel." We are not persuaded.
Marco R. maintains that even though he did not raise these arguments below, he may pursue them on appeal because they are based on "facial unconstitutional vagueness or overbreadth." The Attorney General does not contend otherwise, and we conclude it is appropriate to address Marco R.'s claims on the merits. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-889 (Sheena K.).)
A. We Construe the Notice of Appeal to Be from the Dispositional Order.
We begin by addressing, and rejecting, the Attorney General's argument that we lack jurisdiction to consider this appeal because Marco R.'s notice of appeal indicated the appeal was from the contested jurisdictional hearing rather than from the dispositional order entered as a consequence of that hearing. According to the Attorney General, the notice of appeal "is defective because it does not specify the dispositional order." It is true that a jurisdictional order is not an appealable order, but any errors that arise in the jurisdictional phase of a case are reviewable on appeal from the dispositional order. (See In re P.A. (2012) 211 Cal.App.4th 23, 32.) In light of the principle that a "notice of appeal must be liberally construed" (Cal. Rules of Court, rule 8.405(a)(3)), "a notice purporting to appeal from jurisdictional findings will be deemed to refer to the subsequent dispositional order." (In re Bettye K. (1991) 234 Cal.App.3d 143, 147, fn. 3; see also In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1208-1209 [construing notice of appeal from nonappealable jurisdictional order in dependency case to be from appealable dispositional order].)
B. The General Law Governing Vagueness and Overbreadth Challenges to a Probation Condition.
When a juvenile court places a minor on probation, it " '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.' (Welf. & Inst. Code, § 730, subd. (b); see also id., § 202, subd. (b).) ' "In fashioning the conditions of probation, the . . . court should consider the minor's entire social history in addition to the circumstances of the crime." ' [Citation.] The court has 'broad discretion to fashion conditions of probation' [citation], although 'every juvenile probation condition must be made to fit the circumstances and the minor.' " (In re P.O. (2016) 246 Cal.App.4th 288, 293-294 (P.O.).)
Notwithstanding the juvenile court's broad discretion, " '[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.] '[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." ' " (P.O., supra, 246 Cal.App.4th at p. 299.)
"When a probation condition imposes limitations on a person's constitutional rights, it ' "must [also] closely tailor those limitations to the purpose of the condition" '—that is, the probationer's reformation and rehabilitation—' "to avoid being invalidated as unconstitutionally overbroad." ' [Citations.] '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 [probationer]'s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' [Citation.] ' " 'Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile.' " ' " (P.O., supra, 246 Cal.App.4th at p. 297.)
"A probation condition imposed on a minor must be narrowly tailored to both the condition's purposes and the minor's needs, but ' " ' "a condition . . . that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court." ' " ' [Citation.] 'This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may "curtail a child's exercise of . . . constitutional rights . . . [because a] parent's own constitutionally protected 'liberty' includes the right to 'bring up children' [citation] and to 'direct the upbringing and education of children.' " ' " (P.O., supra, 246 Cal.App.4th at p. 297.)
We review vagueness and overbreadth claims de novo. (P.O., supra, 246 Cal.App.4th at pp. 297, 299.) In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified. (See, e.g., Sheena K., supra, 40 Cal.4th at p. 892.)
C. The Stay-away Condition Is Sufficiently Clear.
Marco R. insists that the probation condition is unconstitutional and must be reformed to include both a statement of the specific distance from schools into which he may not encroach and a scienter requirement. When the Attorney General filed his brief, he disagreed that a scienter requirement was necessary but conceded that a statement of the specific distance was required. Subsequently, the Attorney General withdrew this concession in light of People v. Holzmann (2018) 18 Cal.App.5th 1241 (Holzmann), in which the Sixth District Court of Appeal recently upheld as constitutional a probation condition that required the defendant to " 'stay away from the Apple campus' " without identifying any specific distance from the location into which he could not encroach. (Id. at p. 1243.) Upon the Attorney General's withdrawal of his concession, we ordered, and the parties filed, subsequent briefing on the issue.
In contending that the stay-away condition is unconstitutionally vague based on its failure to specify a distance he must stay away from schools, Marco R. relies on People v. Barajas (2011) 198 Cal.App.4th 748 (Barajas). In Barajas, the Sixth District Court of Appeal considered a probation condition that stated, " 'You're not to be adjacent to any school campus during school hours unless you're enrolled in or with prior permission of the school administrator or probation officer.' " (Id. at p. 752.) The court pointed out that although the meaning of "adjacent to" is "clear enough as an abstract concept," the concept is "difficult to apply." (Id. at p. 761.) Concluding that the condition was impermissibly vague, the court determined it was appropriate to modify it "[t]o avoid inviting arbitrary enforcement and to provide fair warning of what locations should be avoided." (Ibid.) It then modified the condition by directing the defendant not to come within 50 feet of school campuses. (Id. at pp. 761-762.)
In People v. Rhinehart (2018) 20 Cal.App.5th 1123 (Rhinehart), Division Three of this court concurred with this aspect of Barajas. Rhinehart considered a probation condition prohibiting the defendant "from being 'adjacent to any school campus during school hours unless [the defendant is] enrolled or with prior permission of school Administration or probation.' " (Id. at p. 1129.) Our colleagues concluded that "[t]he use of 'adjacent to' in the . . . condition here raises similar concerns" as it did in Barajas and likewise modified the condition to specify a 50-foot distance limitation. (Id. at p. 1130.)
In contrast to the probation conditions in Barajas and Rhinehart, the condition at issue here includes no "adjacent to" language. It simply requires Marco R. to "stay away from any school not enrolled." Holzmann concluded that substantially similar language, which required the defendant to " 'stay away from the Apple campus,' " was sufficiently precise to withstand a vagueness challenge based on the failure to specify a distance. (Holzmann, supra, 18 Cal.App.5th at p. 1243.) Holzmann explained that the condition "expresses in ordinary language what defendant must do to comply with it: stay away from the Apple campus. The commonsense meaning of 'stay away' in this context is 'do not go to or enter' the identified premises. We believe this is what a person of ordinary intelligence would understand when told to stay away from a place. The word 'away' is so commonly used and ingrained in our vocabulary that one hardly needs to resort to a dictionary to define it. But consistent with our understanding of its meaning in this context, a dictionary definition of 'away' is 'from this or that place.' [Citation.] Had the trial court wanted to prohibit defendant from coming within a certain distance of the Apple campus it could have done so, but that would be a different condition." (Id. at pp. 1245-1246.) Holzmann went on to point out that "[t]here are reasons the trial court might have preferred a condition requiring defendant to simply stay away from the location over one prohibiting him from coming within a certain distance. Based on the facts of a particular case or the circumstances of a particular probationer, a trial court might well conclude that a specified distance is appropriate as part of a stay away order. But the failure to include one does not make the condition vague. The Constitution requires a reasonable degree of certainty in probation conditions. Beyond that, the level of precision with which the condition is stated is best left to the sound discretion of the trial court." (Id. at p. 1246.)
Holzmann held that a probation condition is not vague if it orders a defendant to stay away from a sufficiently identified location. And Rhinehart held that a "school campus" is a such a location. (Rhinehart, supra, 20 Cal.App.5th at p. 1130.) The Rhinehart defendant had argued that the phrase "any school campus" was vague because "reasonable minds may disagree about the type of school covered by the condition (K-12, college, business, technical, professional, etc.)" and "some schools occupy commercial buildings." (Ibid.) The court had no difficulty rejecting the argument, and neither do we. We see no principled basis on which to distinguish the phrase "any school campus" that Rhinehart deemed sufficiently clear from the phrase "any school" in the condition at issue here, and Marco R. offers none.
Marco R. also argues that the stay-away condition must be modified to require that he not "knowingly" be within a particular distance of a school in which he is not enrolled. Such a modification is unwarranted since we have rejected this argument's premise—that the condition is unconstitutionally vague because it does not specify how far he must stay away from such schools. Moreover, our state Supreme Court has held that it is generally unnecessary to modify probation conditions to impose a scienter requirement because such a requirement is already implied. (People v. Hall (2017) 2 Cal.5th 494, 500-503.) Marco R. cannot be found in violation of probation if he unwittingly goes to a school in which he is not enrolled.
As Holzmann put it, "[t]he law does not always succeed in expressing concepts in a clear and understandable way. But an order that someone 'stay away' from an identified location is a simple command stated in plain language." (Holzmann, supra, 18 Cal.App.5th at p. 1246.) Because any school in which Marco R. is not enrolled is such a location, we reject his contention that the stay-away condition is unconstitutionally vague.
D. The Stay-away Condition Is Not Overbroad.
Finally, Marco R. argues that the stay-away condition "could encompass an area that is very large since schools are normally found in various locations around most cities" and therefore impermissibly "infringe[s] on his constitutional right to travel." We are not persuaded.
"Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (People v. Moran (2016) 1 Cal.5th 398, 406.) We agree with Rhinehart that a condition requiring a probationer to stay away from certain schools "amounts to only an incidental restriction on [the probationer's] movement." (Rhinehart, supra, 20 Cal.App.5th at p. 1131.) Indeed, Marco R. concedes that were we to impose a specific distance requirement, any infringement on his right to travel would be constitutional. We have construed the stay-away condition to prohibit him from going to or entering schools where he is not enrolled (see Holzmann, supra, 18 Cal.App.5th at pp. 1245-1246), as opposed to staying a specific distance away from them. Thus, if anything, his right to travel is less constrained than it would be if he had to stay out of a particular zone surrounding a school, not just the school itself. He fails to demonstrate that the condition is overbroad.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.