Opinion
A151359
03-26-2018
In re SAMIR G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SAMIR G., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-00573)
Samir G. was adjudged a ward of the court, committed to a rehabilitation program and placed on probation after he admitted an allegation that he resisted a peace officer, and the juvenile court found true an allegation that he committed assault by means likely to produce great bodily injury. On appeal, Samir challenges as facially overbroad the condition of his probation that prohibits him from changing residence without prior approval of the probation department. We conclude that Samir forfeited his challenge by failing to raise it below, and we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Contra Costa District Attorney filed a second amended wardship petition under Welfare and Institutions Code section 602 alleging six counts against Samir, who was then 16 years old: resisting a police officer (count 1), vandalism (count 2), driving without a valid license (count 3), second degree robbery (count 4), giving false information to a peace officer (count 5), and assault by means likely to produce great bodily injury (count 6).
Statutory references are to the Welfare and Institutions Code unless otherwise stated. --------
The juvenile court granted the district attorney's motion to dismiss counts 4 and 5. Subsequently, Samir admitted count 1 in exchange for the dismissal of counts 2 and 3. After a contested jurisdiction hearing, the juvenile court found true the allegations in count 6.
At the disposition hearing, the juvenile court adjudged Samir a ward of the court, committed him to a nine-month residential program at the Orin Allen Youth Rehabilitation Facility, and imposed various terms and conditions of probation, including this "residence change condition": "You are not to change residence without prior approval of the Deputy Probation Officer and to notify the Deputy Probation Officer of any change of address or telephone number, within five days." Samir made no objection to the residence change condition.
DISCUSSION
A Applicable Law and Standard of Review
The Welfare and Institutions Code authorizes the juvenile court to impose on a probationer "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." (§ 730, subd. (b).)
"Well-established principles guide our review. ' "The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents" [citation], thereby occupying a "unique role . . . in caring for the minor's well being." [Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. "[E]ven where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.' " [Citation.] . . . 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.' " [Citations.]' (In re Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).)" (In re Edward B. (2017) 10 Cal.App.5th 1228, 1232-1233 (Edward B.).)
"The juvenile court's discretion in imposing conditions of probation is broad but not unlimited." (Edward B., supra, 10 Cal.App.5th at p. 1233.) A probation condition is "unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153, quoting Victor L., supra, 182 Cal.App.4th at p. 910.) "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—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (E.O. at p. 1153.) The usual standard of review for probation conditions is abuse of discretion, but we review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
To preserve the right to challenge a probation condition on appeal, a defendant must ordinarily object to the condition at the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237.) However, a challenge to a probation condition may be raised for the first time on appeal if the challenge "present[s] pure questions of law based solely on facial constitutional grounds and do[es] not require a review of the sentencing record, and [is] easily remediable on appeal." (Victor L., supra, 182 Cal.App.4th at p. 907, citing In re Sheena K. (2007) 40 Cal.4th 875, 889-890 (Sheena K.).) B Analysis
Samir argues that the residence change condition is unconstitutionally overbroad on its face. He claims that it infringes his constitutional rights to travel and associate with his parents and family, and further claims that it is not properly tailored because it provides no criteria for the approval of a residence and therefore gives the probation department "unfettered discretion." He argues that the condition must be tailored to ensure that he can reside with his family, to provide some standard for approval of his change of residence, and to ensure that he does not violate probation if he moves with his parents, should they move the family home without seeking prior approval or after such approval has been denied. Thus, he asks us to strike the condition or modify it as follows: "You are not to change residence without approval of your Probation Officer, unless you move with your parents or legal guardians to another residence. In either case, you must notify the Deputy Probation Officer of any change of address, or telephone number, within five days." (Italics omitted.)
Samir has forfeited his challenge to the residence change condition by failing to object in the juvenile court. We do not agree with his contentions that his appeal raises a facial challenge or that it presents a pure question of law. There are circumstances where the state's interest in rehabilitating and reforming a defendant justify a probation condition requiring approval for a change of residence. (See People v. Stapleton (2017) 9 Cal.App.5th 989, 997 [upholding probation condition that defendant not change residence without prior approval from probation officer].) Samir's arguments that the residence change condition is not tailored to its purpose rest on facts about his circumstances: his closeness to his mother, the help he provides to his sister, and his current status as "an unemancipated minor whose parents will decide upon whether his family moves to another residence." Determining whether the condition is properly tailored requires a review of the juvenile court record, a review of his offenses and delinquency record, and consideration of his social history. As our Supreme Court as observed, "characteristically, the trial court is in a considerably better position that the Court of Appeal to review and modify a . . . probation condition that is premised upon the facts and circumstances of the individual case." (Sheena K., supra, 40 Cal.4th at p. 885.) The issues that Samir raises here could have been addressed by the juvenile court had the issue been raised at the disposition hearing, and accordingly the forfeiture rule properly applies.
In any event, the case on which Samir primarily relies in arguing that the residence change condition is overbroad, People v. Bauer (1989) 211 Cal.App.3d 937, is distinguishable in several respects. The condition in Bauer, which required approval of Bauer's residence, differed from the condition here in that it was not limited to approval of a change of residence and had not been proposed by the probation department. (Id. at p. 943.) We struck the condition on the grounds that it was unreasonable as well as overbroad. (Id. at p. 944.) Bauer was 26 years old and had lived with his parents all his life, and even though nothing in the record suggested that his home life had contributed to his offense, the trial court had apparently imposed the condition in response to defense counsel's statement at the sentencing hearing that Bauer's parents were " 'very protective . . . and I think he needs to grow up a little bit and away from them.' " (Id. at p. 944.) The condition in Bauer gave the probation officer "the discretionary power . . . to banish" the defendant. (Ibid.) There is no such concern here, where Samir lives with his family and the probation department's approval applies only to a change of residence.
We are not persuaded that the residence change condition violates the fundamental rights of Samir's parents to care for him. Samir is now almost 18 years old, and his wardship has no termination date. The maximum period of confinement for his sustained offenses is four years and four months; at disposition in March 2017 he received credit for 47 days served. As a ward of the court, Samir is subject to the juvenile court's authority notwithstanding his parents' wishes, and Samir cites no authority holding that there is any constitutional infirmity in a juvenile court delegating to a probation officer the approval of a ward's change of residence.
Nor are we persuaded by Samir's argument that the absence of a standard for approval of a change of residence renders the condition overbroad. As an initial matter, Samir's proposed modification to the residence change condition undermines his argument, because the modification he urges us to adopt does not include any standard for the approval of his residence should he seek to move away from his parents or legal guardians. And Samir's concern that the condition will prevent him from living, moving and associating with his family is entirely speculative. Samir points to nothing to suggest that reasonable requests to make a change of residence would be disapproved. We interpret the residence change condition in light of our Supreme Court's instruction that probation conditions "should be given 'the meaning that would appear to a reasonable objective reader' " (People v. Olguin (2008) 45 Cal.4th 375, 382, quoting People v. Bravo (1987) 43 Cal.3d 600, 606), and we presume that Samir's probation officer will not withhold approval for reasons that are irrational or capricious. (Olguin, at p. 383.) And Samir is free to petition the juvenile court to modify the terms of probation under section 778, should circumstances warrant. (In re Luis F. (2009) 177 Cal.App.4th 176, 192.)
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.