Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MJ19791, Benny C. Osorio, Judge.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General and Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
BACKGROUND
Appellant W.W. was charged by petition filed under section 602 of the Welfare and Institutions Code with second degree robbery (Pen. Code, § 211). It was alleged that on July 17, 2010, appellant took personal property from the person, possession, and immediate presence of Gerardo Rojas by means of force and fear.
At the adjudication hearing for appellant and his companion, D.A., Rojas testified as follows: On July 17, 2010 at approximately 4:45 p.m., he was selling corn from a cart at an apartment building in Palmdale. Appellant, D.A., and a third minor approached Rojas and asked him to give them something for free. The unidentified minor tried to hit Rojas. Appellant took his cart. D.A. stood by, taking no action, until the other two began to run. Rojas did not try to stop appellant from taking the cart because the unidentified minor was standing in front of him and Rojas was afraid the minor would hit him. Subsequently, police officers brought W.W. and D.A. to Rojas to identify in a field showup and he identified them as two of the three minors who were involved in taking his cart. Rojas’s cart was subsequently returned to him.
The third minor was never identified.
After the presentation of evidence was concluded, the court dismissed the petition relating to D.A. (See Welf. & Inst. Code, § 701.1.)
Officer Scott Sorrow, who was called to the location and interviewed Rojas, testified that Rojas had said that two of the minors -- appellant and D.A. -- held him against the wall while the unidentified third minor attempted to steal his wallet. After his arrest, appellant told Officer Sorrow that he had tried to get some free food, but did not steal anything.
At the adjudication hearing, Rojas testified that he had reported to police that the unidentified minor, acting alone, tried to hold him against a wall and take his wallet.
The court found the allegations of the petition true. The court declared appellant a ward of the court, placing his care, custody and control under the supervision of the probation department and permitting appellant to remain in the home of his parents under multiple terms and conditions, including condition no. 12, which stated: “Do not be within one block of any school ground unless enrolled, attending classes, on approved school business, or with school official, parent or guardian.”
Appellant’s counsel filed an opening brief raising no issues and asking us to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We advised appellant of his right to submit by brief or letter any contentions or argument he wished the court to consider. We received no response. After reviewing the record, we sent a letter to the parties requesting supplemental briefing on whether the quoted probation condition was properly imposed.
Respondent contends any claim concerning the validity of the condition was forfeited by appellant’s failure to raise the issue before the juvenile court. As was the case in In re Sheena K. (2007) 40 Cal.4th 875, appellant’s “constitutional challenge to a probation condition based upon vagueness or overbreadth” presents “a pure question of law” and is “capable of correction without reference to the particular sentencing record developed in the trial court.” (Id. at p. 887.) Accordingly, it is “not subject to the rule of forfeiture.” (Ibid.; see In re E.O. (2010) 188 Cal.App.4th 1149, 1153, fn. 1 [juvenile’s failure to object at hearing to probation condition keeping him away from courthouses “not fatal” because issue presented “facial challenge raising pure question of law”].)
DISCUSSION
“[T]he juvenile court, in placing a ward on probation, ‘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.’” (In re D.G. (2010) 187 Cal.App.4th 47, 52, quoting Welf. & Inst. Code, § 730, subd. (b).) “Consistent with this mandate, the juvenile court is recognized as having ‘“broad discretion in formulating conditions of probation”’ [citation], and the juvenile court’s imposition of any particular probation condition is reviewed for abuse of discretion.” (In re D.G., supra, at p. 52.)
“A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K., supra, 40 Cal.4th at p. 890.) Put another way, “[a] [probation] restriction 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. supra, 188 Cal.App.4th at p. 1153, quoting In re Victor L. (2010) 182 Cal.App.4th 902, 910; see In re D.G., supra, 187 Cal.App.4th at p. 52 [“‘[A] condition of probation which requires or forbids conduct which is not itself criminal’” is invalid if not “‘reasonably related to the crime of which the defendant was convicted or to future criminality.’”].)
The probation condition at issue here forbids conduct which is not criminal -- being within a block of a school -- and impinges on appellant’s right to travel. A similar condition -- prohibiting the juvenile from being within 150 feet of any school campus -- was struck down in In re D.G., where the court found “no relationship between school or students and [the juvenile’s] current or past crimes” as “[n]one were committed on school grounds; none involved school-age children; and none involved uniquely juvenile conduct.” (In re D.G., supra, 187 Cal.App.4th at p. 53.) Moreover, as there was “nothing in [the juvenile’s] past or current offenses or his personal history that demonstrates a predisposition to commit crimes near school grounds or upon students, or leads to a specific expectation he might commit such crimes, ” there was “no reason to believe the current restriction will serve the rehabilitative function of precluding [him] from any future criminal acts.” (Ibid.)
Also pertinent is the holding in In re E.O., supra, 188 Cal.App.4th 1149, where the court struck down a probation condition forbidding the juvenile from being within 25 feet of any courthouse without a legitimate purpose if he knew proceedings involving gang members were occurring inside. Invalidating the condition as overbroad, the court noted that “[the juvenile] could violate the condition if a car or bus in which he is a passenger passes by such a building.” (Id. at p. 1155, italics omitted; see also People v. Perez (2009) 176 Cal.App.4th 380, 386, quoting Oyoghok v. Municipality of Anchorage (Alaska Ct.App. 1982) 641 P.2d 1267, 1270, fn. 4 [striking similar provision and noting that even where restrictions have the requisite nexus to case, “‘provision should be made to allow for lawful travel through the area[s] of restriction....’”].)
The record below clearly establishes that appellant’s crime took place outside an apartment building, involved an adult victim, and had no relation to his age or the age of his companions. Moreover, the condition imposed could be accidentally violated should appellant’s ordinary travels take him to a location within a block of any school campus. Accordingly, it represents an overbroad restriction on otherwise lawful activity. Respondent points out that appellant’s probation report indicated he was disobedient to his mother, stayed out late most nights, and ingested marijuana and other illegal substances. None of these behaviors is related to appellant’s distance from school grounds, and the probation condition will do nothing to hinder him from engaging in such activities. Nor are any of appellant’s past offenses -- which include disturbing the peace and possession of marijuana -- related to his status as a student, other than “habitual truan[cy], ” which relates to his absence from -- rather than his presence on or near -- school grounds.
DISPOSITION
The judgment is modified by striking condition no. 12. As modified, the judgment is affirmed.
We concur: EPSTEIN, P.J., WILLHITE, J.