Opinion
A152997
06-26-2018
In re FELICITY S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FELICITY S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1700909)
The juvenile court adjudged Felicity S. an indefinite ward of the court, ordered out-of-home placement in a county institution, and imposed conditions of probation. On appeal Felicity challenges two probation conditions: one requiring her to attend all counseling ordered by her probation officer, to include anger management, and one prohibiting her from changing her residence without the prior approval of her probation officer. She also contends, and the Attorney General agrees, that the court's disposition minute order must be corrected to state her maximum period of confinement. We conclude that the challenges to the probation conditions lack merit, and that the disposition order must be modified to reflect the correct maximum term of imprisonment for Felicity's offenses.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Assault
We draw our summary of the underlying facts from testimony at the contested jurisdiction hearing. When Felicity was almost 15 years old, she had a conflict with another teenager, M.H. They arranged to fight at the apartment complex where they both lived. M.H. was scared, and asked for help from her best friend, D.A. In response, D.A. and her mother went to the apartment complex: D.A. to help M.H.; her mother to attempt to defuse the situation. They headed to M.H.'s apartment and saw Felicity and her brother standing outside the door of their apartment, which was nearby. D.A. and her mother met M.H. and some others at M.H.'s apartment. That group stood outside talking for about two minutes, about 40 feet from Felicity's door, and not doing anything aggressive, when Felicity ran up and threw bleach at them from a large drinking cup. The bleach got into D.A.'s eyes and caused great pain, requiring her to seek treatment at a hospital. It took more than two weeks for her eyes to heal. The bleach also got in D.A.'s mother's eyes.
Felicity later told the probation department that the conflict concerned a pair of sunglasses. She loaned them to M.H. two or three months earlier, and M.H. had not returned them. Felicity heard that the glasses were broken, and spoke with M.H. by phone on the day of the incident, telling M.H. to give her the money to replace them or "we can fight."
The district attorney filed a wardship petition under Welfare and Institutions Code section 602 alleging Felicity committed two felony counts of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), one as to each victim, and two felony counts of assault with caustic chemicals. (Pen. Code, § 244.) A bench warrant was issued and remained outstanding until Felicity was arrested, about a month later.
Statutory references are to the Welfare and Institutions Code unless otherwise stated.
The probation department described the circumstances of the arrest: Felicity was on the campus of her former school "as she was looking for a peer to fight with. She was initially contacted by [police] and directed to leave. However, she returned to the campus when school was over and was again contacted by [police]. A records check by the officer revealed the outstanding warrant."
After a contested jurisdiction hearing, the juvenile court sustained all four felony counts. B. The Disposition Report
In its disposition report to the juvenile court, the probation department noted that Felicity wanted to be provided therapy three to four days a week to address her anger. Felicity identified her attitude, especially her anger problems, as something she needs to work on. Her school records showed five days of unexcused absence during the first month of the 2017-2018 school year, and a history of disciplinary referrals for issues including leaving school without permission, disrupting class, disrespectful behavior toward her teacher, quarreling with peers via social media, inappropriate cell phone use, refusal to follow rules, inappropriate attire, profanity, threats to others and fighting with peers. She admitted smoking marijuana daily for a while, mainly to calm herself down. She said she had tapered off, and that when she was arrested, she was smoking "every now and then." She reported that she, her sister and two cousins had been molested by Felicity's uncle by marriage some time earlier and attended therapy following the incident. Felicity's mother reported that the uncle was tried and sentenced to prison.
When asked by the probation officer how she handled anger, Felicity stated that usually she tries to calm down by getting some air and walking around, but if someone she dislikes is in front of her when she is angry, she will fight them. She attributed having so many conflicts to the people around her.
Shortly after Felicity's arrest, her mother told the probation department that Felicity was beyond her control and was coming and going from the family home as she pleased. Police records showed that Felicity had been referred to probation about a year earlier after she confronted a teenager with whom she had an ongoing argument on social media. After some words, Felicity punched the other teenager in the face and body, and then, when the teenager was on the ground, Felicity kicked her in the face. Felicity was detained, but the district attorney declined to file a petition in that matter.
The disposition report noted that Felicity had "demonstrated high levels of aggression, behavioral and academic issues at school, substance abuse, and risk-taking behavior that not only demonstrates deeply rooted cognitive distortions but a severe lack of problem-solving and behavioral management skills. Thus, Felicity is in need of significant intervention and she will benefit from programming addressing her aggression, decision making, substance use, history of victimization and academic progress." The report recommended that she participate in individual counseling, substance abuse treatment programming, and cognitive behavior programs to address her decision-making skills and mitigate her anger response.
The report stated that Felicity's aggregate custody time for her offenses was seven years, that she had spent 42 days in custody through the disposition hearing, and that therefore she had 6 years and 323 days remaining. As relevant here, the report recommended that Felicity be adjudged a ward of the court with no termination date, that she be removed from her mother's custody and placed in a county residential program, and that standard probation conditions apply, including the requirement that she not change her residence without prior approval of her probation officer. In addition, the report recommended that Felicity attend all counseling as directed by her probation officer, that she pay a restitution fine of $300. C. The Disposition Hearing and Order
At the disposition hearing, Felicity's counsel argued unsuccessfully that Felicity should be given an ankle monitor and live with her mother while receiving services in the community. Felicity's counsel argued that the aggregate custody time was five years, not seven; the district attorney, the probation officer, and the court agreed. Felicity's counsel also argued successfully that the restitution fine should be reduced.
The juvenile court adopted the probation department's recommendations, except that the maximum term of confinement was reduced to five years; the restitution fine was reduced to $200; and the recommended order that Felicity attend and participate in all counseling was modified by the addition of the phrase "to include anger management."
In pronouncing the condition, the judge said, "Felicity is ordered to attend and participate in all counseling as directed by the Deputy probation officer, to include anger management. That is a huge component."
DISCUSSION
A. Maximum Term of Confinement
When a minor is removed from his or her parents' custody as a ward of the court, the juvenile court must set the maximum period of confinement and specify that period in the minute order. (§ 726, subd. (d)(1); Cal. Rules of Court, rule 5.795(b).)
The parties agree that Felicity's maximum period of confinement is 5 years, and that Felicity is entitled to 42 days of custody credit. And the record shows that the juvenile court reached the same conclusion: At the disposition hearing, Felicity's trial counsel explained to the court that, contrary to the probation department's disposition report, the maximum custody time was five years, and the district attorney and the court agreed. Immediately thereafter, the juvenile court said, "[H]er remaining custodial time would be, I assume, four years and 323 days," reflecting time served of 42 days, as shown in the Probation Department's disposition report. The probation officer agreed with the court's statement. However, the minute order incorrectly says, "Minor committed to a County Institution for a period not to exceed maximum custody time of 4 years 423 days or until age 21, whichever occurs first. Credit for time served 42 days. Remaining custodial time is 4 years, 423 days."
We shall modify the disposition order to reflect the correct maximum term of confinement, five years, with custody credits of 42 days and custody time remaining of 4 years, 323 days. B. Probation Conditions
Felicity argues on appeal that the counseling condition is unconstitutionally vague and overbroad, and that the change-of-residence condition is unconstitutionally overbroad. Neither challenge was raised below.
1. Standard of Review and Applicable Law
Section 730, subdivision (b) 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."
"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.) In particular, "[p]robation conditions are subject to constitutional challenges on the grounds of vagueness. 'A probation condition should be given "the meaning that would appear to a reasonable, objective reader." ' (People v. Olguin (2008) 45 Cal.4th 375, 382 [(Olguin)], quoting People v. Bravo (1987) 43 Cal.3d 600, 606.) 'Under the void for vagueness doctrine, based on the due process concept of fair warning, an order " '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.' " ([In re] Sheena K.[ (2007)] 40 Cal.4th [875,] 890 [(Sheena K.)].) The doctrine invalidates a condition of probation " ' "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." ' " (Ibid.) By failing to clearly define the prohibited conduct a vague condition of probation allows law enforcement and the courts to apply the restriction on an " ' "ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." ' " (Ibid.) (Victor L., supra, 182 Cal.App.4th at p. 910.)" (Edward B., supra, 10 Cal.App.5th at p. 1233.)
Probation conditions are also subject to constitutional challenges on the grounds of overbreadth. 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 (E.O.), 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., supra, 188 Cal.App.4th at p. 1153.)
To preserve the right to challenge a condition of probation on appeal, a defendant must ordinarily object to the condition in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237 (Welch).) 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 doe[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 Sheena K., supra, 40 Cal.4th at pp. 889-890.)
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.)
2. Analysis
a. Counseling
Felicity challenges the condition that she attend and participate in all counseling as directed by her probation officer, to include anger management. She claims the condition is unconstitutionally vague and overbroad on its face because it improperly delegates judicial authority to the probation officer and because it provides no notice to Felicity or guidance to the probation officer as to what type of counseling is appropriate, and she asks us to strike the condition, or modify it to state that she is to attend and participate in anger management counseling as directed by her probation officer.
Felicity forfeited her challenge to the counseling condition by failing to object in the juvenile court. (Welch, supra, 5 Cal.4th at p. 237.) We disagree with her argument that the challenge raises pure issues of law, and that therefore she has not forfeited her challenge by failing to raise it below. Her challenge to the counseling condition does not raise a pure issue of law because it requires us to examine the findings in the record. (Sheena K., supra, 40 Cal.4th at p. 889.) This is reflected in Felicity's proposed modification, which, in requiring her to participate in anger management counseling, acknowledges the facts of Felicity's offense and the disposition report prepared by the probation department.
In any event, Felicity does not convince us there is any constitutional infirmity in the juvenile court allowing the probation department to exercise its discretion in determining what constitutes appropriate counseling for a ward of the court, particularly where the department has prepared a detailed report and recommendations and identified Felicity's needs as including programming to address a range of issues, including but not limited to anger management. "Probation officers have wide discretion to enforce court-ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) The cases on which Felicity relies to support her claim that the court here improperly delegated its authority to the probation department are inapposite. This is not a case where a probation officer imposes a new probation condition that the juvenile court had never ordered or even considered. (Id. at p. 1372.) And this is not a case where a delegation of authority to the probation department runs afoul of a statutory scheme. (People v. Cervantes (1984) 154 Cal.App.3d 353, 356-358.)
We disagree with Felicity's claim that the counseling condition is vague because it "does not provide any notice to appellant or guidance to the probation officer as to what type of counseling is appropriate." The condition is clear on its face that the counseling must include anger management. And we do not agree that the type of counseling to be ordered is left to the "whim" of the probation officer, or that the probation officer could order any type of counseling regardless of its relation to Felicity's offense or the goals of her rehabilitation. The probation department's authority to enforce court-ordered conditions does not authorize a probation officer to make unreasonable demands. (Olguin, supra, 45 Cal.4th at p. 383.) Furthermore, a probation condition must be interpreted in context and " 'will not be held void for vagueness "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources." ' " (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) In the context of this case, which includes the probation department's detailed report, the counseling condition is intended to address the wide range of challenges that Felicity faces, which are not limited to anger management.
Felicity's argument that the counseling condition is overbroad because it is not narrowly tailored to further her rehabilitation is meritless. Her request that we strike the condition is inconsistent with her concession in her opening brief that the facts of the case demonstrate that she needs anger management counseling. And her view that appropriate tailoring would limit the counseling to anger management is inconsistent with the disposition report, which notes that "Felicity is in need of significant intervention and she will benefit from programming addressing her aggression, decision making, substance use, history of victimization and academic progress," and in view of the court placing her in a program that includes individual counseling as well as cognitive behavioral intervention.
Finally, we disagree with Felicity's contention on appeal that her trial counsel's failure to object to the counseling condition constitutes ineffective assistance of counsel. To demonstrate ineffective assistance, Felicity must show that her trial "counsel's representation fell below an objective standard of reasonableness[] [¶] . . . under prevailing professional norms" (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland)), and then must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) Felicity's argument that her trial counsel was ineffective is conclusory and unconvincing. It rests on two premises we have rejected: that the juvenile court "improperly delegated absolute power to the probation officer to order appellant to attend counseling," and that the counseling condition is vague on its face. And Felicity's assertion that there is a reasonable probability that the juvenile court would have modified the condition if her trial counsel had objected is speculative. The assertion does not gain authority by repetition, and does not meet Felicity's burden to show prejudice under Strickland. (People v. Centeno (2014) 60 Cal.4th 659, 676 (Centeno).)
Our Supreme Court has "repeatedly stressed 'that "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim [of ineffective assistance of counsel] on appeal must be rejected.' [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here the record suggests that trial counsel failed to object to the condition because counsel and Felicity agreed that therapy would be helpful. Furthermore, the record does not show that trial counsel was ever asked for an explanation of her failure to object. And we can think of satisfactory explanations for the failure to object apart from counsel's belief that the condition was in Felicity's interest. The objection would have lacked merit, and Felicity's counsel could reasonably have determined to save her objections for other important issues, including the maximum term of confinement and the amount of restitution.
b. Change of Residence
Felicity argues that the requirement that she not change residence without prior approval of her probation officer is unconstitutionally overbroad, claiming it impinges on her right to travel and associate with her family and, by giving the probation officer complete discretion to approve of her residence, it is not narrowly tailored to her rehabilitation. She asks us to strike the condition, or modify it to state that she is not to change her residence without the approval of her probation officer unless she moves with her parents or legal guardians to another residence.
Felicity forfeited her challenge to the residence change condition by failing to object in the juvenile court. Once again, we disagree with her argument that the challenge raises pure issues of law, and that therefore she has not forfeited her challenge by failing to raise it below. Contrary to Felicity's assertion, the condition is not facially overbroad because there are circumstances where the state's interest in a defendant's rehabilitation and reformation justify 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].) And Felicity's arguments that the condition is overbroad necessarily rest on facts about her circumstances. She claims that "like all minors, [she] lacks the legal, financial, and practical capacity to choose her residence." That may be true for Felicity, but not all minors are so situated. Moreover, Felicity's wardship, which has no termination date, may last beyond her turning 18.
The case on which Felicity primarily relies in arguing that the residence change condition is overbroad, People v. Bauer (1989) 211 Cal.App.3d 937, is distinguishable. The condition in Bauer required approval of Bauer's residence, and 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 lived with his parents all his life. (Ibid.) Even though nothing in the record suggested that his home life contributed to his offense, the trial court apparently imposed the residence condition in response to defense counsel's statement at sentencing that Bauer's parents were " 'very protective . . . and I think he needs to grow up a little bit and away from them.' " (Ibid.) The condition in Bauer gave the probation officer "the discretionary power . . . to banish" the defendant. (Ibid.) That is not a concern here.
We are not persuaded by Felicity's argument that the absence of a standard for approving a change of residence makes the condition overbroad. Nor are we persuaded by her argument that if her mother changes her residence without seeking and obtaining approval, Felicity will be forced to move with her and violate the residence change condition, or else violate the condition that she obey her mother. These arguments are wholly speculative. As a ward of the court, Felicity is subject to the juvenile court's authority notwithstanding her mother's wishes, and she 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. And Felicity points to nothing to suggest that reasonable requests to change residence would be disapproved. In interpreting the residence change condition we bear in mind our Supreme Court's instruction that probation conditions "should be given 'the meaning that would appear to a reasonable, objective reader' " (Olguin, supra, 45 Cal.4th at p. 382), and we presume that Felicity's probation officer will not withhold approval for reasons that are irrational or capricious. (Id. at p. 383.) Felicity 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.)
Felicity's proposed modification to the residence change condition undermines her argument, because the modification does not include any standard to govern the approval of her residence should she seek to move away from her parents or legal guardians. --------
We disagree that the failure of Felicity's trial counsel to object to the residence change condition in the juvenile court constitutes ineffective assistance of counsel. Although Felicity suggests we need to consider this argument only if we conclude that "trial counsel's failure to object to the condition as overbroad under the facts of this case forfeits the issues on appeal," Felicity's argument rests on the premise that the residence change condition is facially overbroad, which we have rejected. Furthermore, Felicity's contention that if trial counsel had objected, the court would have modified the condition to allow her to move with her mother without prior approval, is conclusory and speculative, unsupported by any citation to authority. Accordingly, Felicity has not shown a reasonable probability that if her counsel had objected, the outcome would have been different. (Strickland, supra, 466 U.S. at p. 694; Centeno, supra, 60 Cal.4th at p. 676.)
DISPOSITION
The juvenile court's disposition order is modified to reflect a maximum confinement term of five years, with 42 days of custody credit and custody time remaining of 4 years, 323 days. As modified, the order is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.