Opinion
G053554
08-24-2017
In re N.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.P., Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DL049519-003 & DL049519-004) OPINION Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed as modified. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
N.P. appeals from an order declaring him a ward after the juvenile court found true two counts of aggravated assault and one count of street terrorism. N.P., for the first time on appeal, challenges probation conditions requiring him to obtain permission from his probation officer before changing his residence and to refrain from associating with any Logan Street gang members. He also argues the juvenile court erred by not declaring whether his assault offenses were felonies or misdemeanors and contends he is entitled to an extra day of precommitment custody credit. We determine the residence probation condition should be modified to specify N.P.'s parents may move with him to another home without the probation officer's approval. We also agree the judgment should be modified to give N.P. credit for one additional day of precommitment custody. In all other respects, we affirm the judgment.
FACTS
In October 2015, Francisco Gomez Juarez was buying food from a street vendor in Santa Ana when N.P. and three or four others approached him and asked what gang he was from. Juarez ignored them and drove away with his girlfriend. N.P. and the others chased after Juarez and his girlfriend, making Logan Street gang signs and throwing rocks at the truck. As Juarez was stopped in traffic, N.P. approached the driver's side and hit Juarez in the face. Juarez tried to drive away, but N.P. and his cohorts continued to chase him, throwing rocks at the truck, eventually cracking the windshield. Another cohort threw a piece of concrete, hitting Juarez in the head. The head injury caused Juarez to lose control of his truck and hit another car causing a chain reaction, which injured a young girl.
On November 6, 2015, the Orange County District Attorney filed a subsequent petition against N.P. pursuant to Welfare and Institutions Code section 602, alleging three counts of aggravated assault (Pen. Code, § 245, subd. (a)(1); counts 1-3) and one count of street terrorism (Pen. Code, § 186.22, subd. (a); count 4). At the jurisdictional hearing, count 3 and the related enhancement allegation were dismissed. The juvenile court found true the remaining charges and allegations.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. --------
At the disposition hearing, the juvenile court committed N.P. to juvenile hall for 18 months, ordered him released to his parents upon termination of his commitment, and ordered him to obey the terms and conditions of his probation. Probation terms included a mandate not to "change your residence without prior permission from your probation officer. Prior to change of residence, you are to notify your probation officer of the new address. You are not to live with anyone except your parents or approved guardian without the specific permission of your probation officer." Another term required that N.P. have no contact with the Logan Street gang.
DISCUSSION
I. Probation Conditions Are Appropriate and Valid
N.P. argues the court imposed overbroad probation conditions when it required him to obtain permission from his probation officer before changing his residence and refrain from associating with any Logan Street gang members. Not so.
As an initial matter, we note N.P. did not raise these challenges before the juvenile court. Generally, challenges to probation conditions are forfeited unless an objection was raised at sentencing. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) However, a challenge "based on the ground the condition is vague or overbroad and thus facially unconstitutional" is not waived by failing to object below. (In re Sheena K. (2007) 40 Cal.4th 875, 878.) We thus consider N.P.'s constitutional challenges under the de novo standard of review. (Id. at pp. 879, 889.)
N.P. relies on People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer) for the proposition that the residence condition is facially unconstitutional as an undue burden on his rights to travel and freely associate. Bauer, however, concerned an adult defendant challenging probation conditions. (Bauer, supra, 211 Cal.App.3d at pp. 939-940.) Probation conditions for minors "may be broader than those pertaining to adult offenders. 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 the 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." [Citation.]' [Citations.]" (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) A probation condition is valid unless it has "no relationship to the crime of which the offender was convicted, . . . relates to conduct which is not in itself criminal, and . . . requires or forbids conduct which is not reasonably related to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486.)
We determine the residence condition is a valid exercise of a probation officer's authority to place N.P. in a proper environment conducive to his rehabilitation and to maintain ongoing supervision of any change of residence. While we conclude the probation condition is not facially unconstitutional, we note its language could be interpreted to restrict the freedom of N.P.'s parents or legal guardians to change their residence while N.P. is living with them. To prevent such an interpretation, we will direct the court to modify the condition to clarify N.P.'s parents or legal guardians may move with him to another home without the approval of N.P.'s probation officer.
N.P. also challenges the condition forbidding him from having contact with the Logan Street gang. He does not ask this court to modify the condition's language, for example, by adding a knowledge requirement. Instead, he contends the condition is unconstitutionally overbroad and unduly restricts his right to familial privacy.
Courts routinely allow gang-based probationary conditions where evidence connects the juvenile defendant with a gang or gang members. (People v. Lopez (1998) 66 Cal.App.4th 615, 626.) Such a condition of probation may be reasonably related to preventing future unlawful conduct. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1501, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2.) This is true even where probation conditions restrict a criminal defendant's right to associate with family members. (See People v. Jungers (2005) 127 Cal.App.4th 698, 704-705 [upholding condition precluding defendant from contacting his wife].)
Here, it is undisputed N.P.'s brother is a Logan Street gang member. Having N.P. in an environment free from Logan Street gang influence is an important component of his successful completion of probation. The prohibition from associating with his brother is merely temporary and is subject to a motion for modification. (§§ 775, 776, 778.) The state's interest in rehabilitating N.P. justifies restricting association with his brother and other Logan Street gang members. II. Section 702
N.P. claims the juvenile court erred under section 702 by failing to expressly find whether the assault offenses were felonies or misdemeanors. N.P. argues the minute order designating the matter to be a felony was insufficient to comply with section 702 because "the transcript of the dispositional hearing does not support this notation." The Attorney General argues any error was harmless. We agree.
Section 702 states, "[i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (§ 702 [italics added].) "The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.]" (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) The requirement of an express declaration provides assurance "the juvenile court is aware of, and actually exercises, its discretion under . . . section 702." (Id. at p. 1207.) Where the trial court fails to make an express finding, remand is not automatic where it "would be merely redundant" and "would amount to harmless error." (Id. at p. 1209.) "The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Ibid.)
Analyzing the record as a whole, the juvenile court properly exercised its discretion under section 702. The record reflects the court considered the maximum time in custody resulting from the offenses, seven years and eight months. The May 4, 2016, minute order expressly stated the court found the "matter to be a felony with a maximum term of confinement as 7 years 8 months."
The court also recognized its discretion to treat the offenses as misdemeanors. In reaching its sentence, the court noted gang members give respect for time served. The court opined if it wanted to make sure N.P. did not get respect from other gang members, it "could make everything a misdemeanor and downplay it and give [N.P.] no time and say, you know, this was like kid stuff, so [he] shouldn't be respected for it." The court ultimately decided against treating the offenses as misdemeanors. Instead, it imposed 18 months based on the repeated and egregious behavior in an effort to both protect the community and impress upon N.P. how serious the offenses were.
Even assuming the court's minute order failed to make an express finding required by section 702, remand is not appropriate because the record demonstrates the juvenile court was aware of its discretion to determine whether the assault offenses were felonies or misdemeanors. We affirm the judgment as to counts 1 and 2. III. Custody Credit
N.P. contends, and the Attorney General concedes, he is entitled to an additional day of precommitment custody credit. At the May 4, 2016, disposition hearing, the juvenile court granted N.P. 182 days of precommitment custody credits. The court must "award credits for all days in custody up to and including the day of sentencing." (People v. Smith (1989) 211 Cal.App.3d 523, 527.) The proper amount of credits, from N.P.'s November 4, 2015, arrest up to and including his commitment on May 4, 2016, is 183 days.
DISPOSITION
We instruct the juvenile court to modify the May 4, 2016, minute order to delete the probation condition reading, "[y]ou are not to leave the State of California or change your residence without prior permission from your probation officer. Prior to change of residence, you are to notify your probation officer of the new address," and replace it with a probation condition reading, "[y]ou are not to leave the State of California or change your residence without prior permission from your probation officer. Prior to change of residence, you are to notify your probation officer of the new address. Nothing in this provision shall prohibit minor's parents or legal guardians from changing their and minor's residence without prior approval of the probation officer." The judgment is also modified to give appellant credit for one additional day of precommitment custody credits, for a total of 183 days. The clerk of the superior court is directed to correct the appropriate records to reflect the change in precommitment custody credits. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.