Opinion
A152994
11-14-2018
In re M.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.C., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JW176252)
Minor M.C. appeals from the juvenile court's order placing him on probation with various terms and conditions for assaulting his stepmother, E.R., a dependent adult. M.C. contends the court erred in imposing a probation condition requiring him to, in all but a few limited circumstances, stay away from the City and County of San Francisco. The prosecution concedes—and we agree—this "stay away" condition is overbroad. We therefore reverse the juvenile court's order and remand the matter for the juvenile court to modify this condition so that it is more narrowly drawn to reflect minor's individual history and circumstances. In all other regards, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2017, a juvenile wardship petition was filed alleging M.C., then age 16, committed one felony count of assault against a dependent adult (E.R.) in a manner likely to cause great bodily injury (Pen. Code, § 368, subd. (b)(1), count I); two misdemeanor counts of assault against a dependent adult (E.R.) in a manner not likely to cause great bodily injury (§ 368, subd. (c); counts III and IV); and one felony count of attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1), count II).
All further, undesignated statutory references are to the Penal Code.
This wardship petition was based on the following facts, as set forth in the probation officer's report. M.C. was born in El Salvador in 2001 and lived with his mother there until she died, when he was 18 months old. Shortly thereafter, M.C. was brought to Daly City to live with his father; his stepmother, E.R.; and his half-sister. M.C.'s father and E.R. subsequently divorced but maintained an amicable relationship and continued to live together. The family moved to San Francisco before M.C. began eighth grade; however, in 2017, father moved to El Salvador.
E.R. said she was " 'real close' " to M.C. "until about the age of 12," when he began to challenge her. Eventually, their relationship deteriorated to the point where they could not be in the same room. On September 29, 2017, M.C. suddenly grabbed E.R.'s arm and neck without provocation, leaving bruises on her arm and neck. On October 2, 2017, M.C. entered E.R.'s bedroom, took her television remote control and abruptly changed the channel. When E.R. objected, M.C. tried to smother her with a pillow, causing her to temporarily struggle to breathe. E.R. tried to call the police, but M.C. prevented her by snatching the phone from her hands. At the time, E.R., who is partially blind and on dialysis for kidney insufficiency, was frightened by M.C.
M.C. was diagnosed after entering kindergarten with learning disabilities and mental health problems, and received therapy through the school district. --------
On October 3, 2017, E.R.'s physician called Adult Protective Services to report having found bruises on her arm and neck. This call prompted the police to visit E.R., who reported that, in the past year, M.C. had physically harmed her dozens of times.
Based on these facts, as well as indications that M.C. was affiliated with the Sureño gang, the probation officer recommended that M.C. be placed with his father, who, as mentioned above, had just moved back to El Salvador. M.C.'s father was retired, had two houses in El Salvador, and regularly traveled between there and the United States. He lived in a safe neighborhood in El Salvador and had found a school that would provide M.C. with a bilingual education, tutoring, and counseling. Father believed that living in El Salvador would provide M.C. with an opportunity to learn more about his culture and reunite with his maternal relatives. Moreover, just before M.C. committed the underlying offenses, the family had planned for M.C. to move to El Salvador with his father, but M.C. "backed out at the last minute. Not too many days after he refused to go with his father, the incident for which he is before the Court occurred."
M.C., who had been to El Salvador only twice and did not speak Spanish well, expressed to probation that he was willing to move to be with his father. With respect to M.C.'s apparent Sureño gang affiliations, the probation officer noted that in Juvenile Hall, M.C. had harassed a younger detainee whose family members were associated with the rival Norteño gang. M.C. had also been assaulted and robbed on his first day of school by Norteño gang members, and a "non-gang associated minor" had threatened to kill M.C. "on the 'outs.' " Thus, in recommending in the disposition report that M.C. live with his father in El Salvador, the probation officer stated that, while this threat "may just be talk," M.C. would have a "fresh start" in El Salvador and would have what he needed to stay away from gangs, including good schooling and counseling.
A jurisdictional hearing was held on October 16, 2017, at which M.C. admitted an amended count I (injuring a dependent adult in a manner likely to cause great bodily harm reduced from a felony to a misdemeanor) and count III (misdemeanor injuring a dependent adult in a manner not likely to cause bodily harm). Pursuant to this negotiated plea, the juvenile court then dismissed counts II and IV.
At the October 30, 2017 dispositional hearing, M.C.'s counsel agreed with the probation officer's recommendation to place M.C. in his father's home, and reported that M.C.'s father also agreed. The prosecutor, however, disagreed with this recommendation, stating that the purpose of juvenile probation is rehabilitation and that "shipping [M.C.] off to El Salvador" without a plan for him to receive help, including psychological help, would not serve him or the public. The juvenile court stated for the record that M.C. was not being "placed in El Salvador. The proposal is that he be placed with his father. His father is going to decide where he lives."
At the conclusion of this hearing, the juvenile court followed the probation officer's recommendation and declared M.C. to be a ward of the court, and placed him on probation, in the custody of his father, and under the supervision of the juvenile probation department. As one of the conditions of probation, the juvenile court ordered: "Stay away from/have no face-to-face contact with: [E.R.]. One exception is for a visit while minor is in JJC [the Juvenile Justice Center]. Any contact between minor and [E.R.] must be peaceful. You must stay out of San Francisco unless you are in JJC, you are meeting with your Probation Officer, or you are attending a court hearing." The juvenile court added that the condition requiring M.C. to stay out of San Francisco was "based upon the information contained in the dispositional report—that your associations in San Francisco are not in your best interest." M.C.'s counsel objected, stating the condition was "overbroad," and asked the juvenile court to "address the safety concerns in a far more limited, general fashion." The juvenile court noted this objection and imposed the condition.
On November 9, 2017, M.C. filed a timely notice of appeal.
DISCUSSION
On appeal, M.C. contends the probation condition requiring him to stay out of San Francisco is overbroad in violation of his constitutional rights to free travel, association, and assembly. The prosecution concedes—and we agree—the condition is indeed overbroad. The following legal framework governs.
A juvenile court is afforded broad discretion under Welfare and Institutions Code section 730 to impose probation conditions. " 'Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation. "A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court." [Citation.] "[I]n planning the conditions of [a juvenile's] supervision, the juvenile court must consider not only the circumstances of the crime but also the minor's entire social history. [Citations.]" [Citation.]' [Citations.] 'Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation].' [Citations.] But every juvenile probation condition must be made to fit the circumstances and the minor." (In re Binh L. (1992) 5 Cal.App.4th 194, 203.)
In particular, despite the greater latitude afforded juvenile courts in ordering probation conditions, it remains the law in all cases that "[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." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In addition, a probation condition that imposes limitations on a person's constitutional right "must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Ibid.)
On appeal, we thus generally uphold a probation condition as valid unless it: (1) is not related to the crime committed; (2) is related to conduct that is not in itself criminal; and (3) requires or forbids conduct that is not reasonably related to future criminality. (Alex O. v. Superior Court (2009) 174 Cal.App.4th 1176, 1180.) In applying this standard, we keep in mind that "[t]he 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 [minor's] constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153; see also In re Spencer S. (2009) 176 Cal.App.4th 1315, 1331 [probation condition against minor restricting him from associating with probationers was not overbroad where minor had previously been in trouble for fighting an alleged gang member, and the restriction was thus "sufficiently related to the goals of (1) promoting his rehabilitation and reformation, and (2) protecting the public"].)
Here, the challenged probation condition requires M.C. to stay away from the City and County of San Francisco unless his presence is required for a court appearance, a Juvenile Justice Center visit or appointment, or a probation officer meeting, and thus implicates his constitutional rights to free travel, assembly and association. California courts have held that these constitutional rights are not absolute and may be reasonably restricted in the public interest. (In re White (1979) 97 Cal.App.3d 141, 149.) To illustrate, a ban of a minor from an entire country has been upheld under certain circumstances. In In re Daniel R. (2006) 144 Cal.App.4th 1, 5-9, the reviewing court upheld a probation condition banning the minor from Mexico once this condition was modified to permit the minor to travel to Mexico in the custody and control of his parents, and with prior approval of the probation department. Similarly, in In re Antonio R. (2000) 78 Cal.App.4th 937, 940-942, the reviewing court upheld a condition banning the minor from Los Angeles County "without a parent or the permission of the probation officer."
In our case, the prosecution agrees the challenged condition is overbroad and must be modified. However, rather than endorse the modification proposed by M.C., the prosecution requests that we strike the probation condition and remand the matter to the juvenile court to modify it in the first instance. In so requesting, the prosecution points out that, given its prior order that he reside in El Salvador with his father, the juvenile court did not have occasion to contemplate M.C.'s presence in San Francisco and, more specifically, whether he would benefit from being permitted to participate in San Francisco-based psychological or rehabilitative services should he and his father return to the city.
We are likewise in agreement that the challenged condition must be stricken as overbroad. While the juvenile court was properly concerned about M.C.'s gang affiliations, the probation condition went substantially beyond addressing this concern and precluded him from visiting not only the city in which he spent a significant part of his young life, but the city where his relatives and friends continue to reside, where he worked and went to school, and where his own father frequently visits. As such, this condition was not sufficiently tailored to minor's specific rehabilitative needs, based upon his social history and circumstances, to withstand constitutional scrutiny, and must be narrowed on remand. (See In re Justin S. (2001) 93 Cal.App.4th 811, 816 [overbroad probation condition was modified and narrowed]; accord, In re Sheena K., supra, 40 Cal.4th at pp. 891-892 [upholding probation condition, as modified by the Court of Appeal, requiring the defendant to refrain from associating with anyone defendant knew was disapproved of by her probation officer]. We therefore order that the probation condition requiring M.C. to stay away from San Francisco be stricken, and remand the matter to the juvenile court to consider in the first instance a more suitable alternative condition.
DISPOSITION
The probation condition in the juvenile court's dispositional order of October 30, 2017, requiring M.C. to stay away from the City and County of San Francisco (with some delineated exceptions) is stricken, and the matter is remanded to the juvenile court to modify this condition in accordance with the opinions reached herein. In all other regards, the order is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Pollak, J.