Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV34916D
Bamattre-Manoukian, ACTING P. J.
The minor, Joshua M., appeals from a dispositional order, following the findings by the juvenile court that he committed an assault by means of force likely to produce great bodily injury for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (a)(1), 186.22, subd. (b)(1)(B).) The court ordered the minor committed to the care, custody, and control of the probation officer for suitable placement, and the minor was accepted into the “Rite of Passage” program. The court also ordered that “[a]ll prior orders not in conflict remain in effect, ” which included conditions of probation concerning gangs, possession of alcohol or controlled substances, and presence at a school campus or a courthouse.
Further unspecified statutory references are to the Penal Code.
On appeal the minor contends that there was insufficient evidence to support the “primary activities” element of the gang enhancement (§ 186.22, subd. (f)), and that the challenged probation conditions are unconstitutional and should be modified or stricken.
For reasons that we will explain, we will affirm the dispositional order.
BACKGROUND
First and Second Petitions
In 2008, the district attorney filed a petition under Welfare and Institutions Code section 602 alleging that the minor, then age 14, possessed an instrument and weapon of the kind commonly known as a billy. (§ 12020, subd. (a)(1).) A second petition under Welfare and Institutions Code section 602 was subsequently filed, and it was alleged that the minor, then age 15, possessed a folding knife with a locking blade on school grounds. (Former § 626.10, subd. (a).) The two petitions were consolidated by the juvenile court. The minor admitted the allegations concerning possession of a knife on school grounds (former § 626.10, subd. (a)), and the court dismissed the allegations concerning possession of a billy (§ 12020, subd. (a)(1)). The juvenile court eventually transferred the minor’s case to El Dorado County for disposition after the minor’s parents requested that he be allowed to reside with his father, who lived in El Dorado County. The minor and his mother had been living in Santa Clara County. In January 2009, the juvenile court in El Dorado County declared the minor a ward of the court, placed him on probation with various terms and conditions, and ordered him to reside in the custody of his father. The court also ordered the minor to serve time in juvenile hall, followed by time on an electronic arrest program.
First Notice of Probation Violation
In April 2009, the probation department filed a notice under Welfare and Institutions Code section 777, alleging that the minor violated probation by no longer residing at his father’s home and by failing to attend school. It was further alleged that the minor’s whereabouts were unknown. A warrant was issued for the minor’s arrest, and in May 2009, he was taken into custody. The minor admitted the allegations that he violated probation. In early June 2009, the juvenile court continued the minor as a ward of the court and placed him on probation. The court also ordered that the minor serve time in juvenile hall, followed by time on an electronic arrest program, and that he reside in the custody of his father.
Second Notice of Probation Violation
Shortly thereafter, the probation department filed a second notice under Welfare and Institutions Code section 777, alleging that the minor violated probation by no longer residing at his father’s home and by failing to follow an “Electronic Arrest Program Agreement, ” in that he removed his ankle bracelet and absconded from his father’s home. The minor admitted the allegations. The juvenile court continued the minor as a ward of court and placed him on probation. The minor was also ordered to serve time in juvenile hall and to complete the “Family Reunification Program.”
Third Notice of Probation Violation
In September 2009, the probation department filed a third notice under Welfare and Institutions Code section 777, alleging that the minor violated probation when he was terminated from the Family Reunification Program in juvenile hall. The minor allegedly refused to comply with the rules of the facility in that he had smuggled contraband into the facility, possessed gang graffiti, flooded his room repeatedly, instigated a fight, and behaved unsatisfactorily in school. The minor admitted the allegations. The minor was continued as a ward of the court and placed on probation. The minor was also ordered to serve time in juvenile hall and to complete the Family Reunification Program.
Fourth Notice of Probation Violation
In October 2009, a fourth notice under Welfare and Institutions Code section 777 was filed by the probation department alleging that the minor, then age 16, violated probation when he was terminated from the Family Reunification Program in juvenile hall. The minor allegedly “tagged the floor of his room with gang graffiti, ” resulting in the destruction of county property. In an amended notice filed in November 2009, the probation department added the allegation that the minor was terminated from the program “as a result of his failure to meet the minimum juvenile hall behavior requirements to continue” in the program and his “refusal to comply with the rules of the detention facility.” The minor admitted the allegations in the amended notice. The minor was continued as a ward of the court and placed on probation. The court also committed the minor to a county juvenile ranch and ordered him to complete the “Challenge Program, ” followed by time on an electronic arrest program.
Fifth Notice of Probation Violation
In December 2009, a fifth notice under Welfare and Institutions Code section 777 was filed by the probation department alleging that the minor violated probation by “fail[ing] to obey all program rules and regulations of the juvenile detention facility, in that he physically battered another minor.” The minor admitted the allegations. According to a report by the probation officer, the minor’s mother, who on prior occasions expressed her desire to have the minor returned to Santa Clara County, again stated that she wanted the minor sent back to that county. The court ultimately ordered that the minor, who was in custody, be transported to Santa Clara County and also ordered that the minor’s case be transferred to that county for disposition.
On February 1, 2010, the juvenile court in Santa Clara County continued the minor as a ward of the court and ordered him committed to an enhanced ranch program for six to eight months. Upon completion of the program, the minor was to continue on probation under certain terms and conditions. Among the conditions relevant here, the court ordered: (1) “That said minor not knowingly participate in any gang activity and/or visit any areas of gang-related activity that are known to him unless he has prior permission from his Probation Officer”; (2) “That said minor not use, possess, or be under the influence of alcohol or any form of controlled or illegal substance without the legal right to do so and submit to drug and substance abuse testing as directed by the Probation Officer”; (3) “That said minor not be on or adjacent to any school campus unless enrolled or with prior administrative approval”; and (4) that the minor “not knowingly come” within 25 feet of a courthouse “when the [minor] knows there are criminal or [juvenile] proceedings occurring which involves anyone the [minor] knows to be a gang member or where the [minor] knows a witness or [victim] of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has permission [from] his [probation officer].”
Third Petition
Thereafter, on February 26, 2010, the district attorney filed a petition under Welfare and Institutions Code section 602 alleging that the minor committed an assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) The petition further alleged that the offense was committed “for the benefit of, at the direction of, and in association with a criminal street gang.” (§ 186.22, subd. (b)(1)(B).)
The Jurisdictional Hearing Evidence
On the evening of February 24, 2010, a fight broke out among several juveniles in a recreation hall at a boys ranch. Ranch staff members, including probation counselors who supervised the juveniles and were responsible for their safety and security, responded to the altercation. When probation counselor Everet Mar arrived in the recreation hall, he saw the minor “stomp” on the “head area” of Christian S., who was lying on his stomach on the floor. Mar immediately “took [the minor] to the ground” and handcuffed him. Another juvenile, with the last name of L., had been standing in the same area as the minor and the victim. Mar did not remember L. doing anything to the victim at the time Mar entered the room. Mar estimated that approximately eight to 10 minors were involved in the fight. The “whole incident” was “pretty chaotic” and “it happened pretty fast.” Mar indicated that at least some of the juveniles involved in the incident were affiliated with gangs. He wrote in his report of the incident that he was directed “at the end of the situation” to separate the “northerners from the other minors.” He testified that the other group was “Southerners.”
Probation counselor Randy Gomez also responded to the fight. He saw the minor and Josiah H. kicking Christian, who was on the ground. Gomez was not able to physically intervene as he was already restraining another juvenile who had been involved in a separate altercation. Gomez verbally commanded the minor and Josiah to stop kicking the victim. The minor and Josiah kicked the victim approximately six to eight times each. The victim was “curled up on the ground” in a “[f]etal position” and was kicked in the head and all over his body. Ten to 15 seconds passed before staff came in and stopped the attack on this victim. According to Gomez, a minor named Erik L. was “standing in the background” while the victim was being kicked. Gomez did not see Erik kick the victim. Gomez indicated that all but one of the 11 or 12 juveniles in the recreation hall were involved in a fight at one point. Gomez concluded that the incident was gang-related, based on the individuals who were involved in the altercation and his knowledge of each individual’s gang affiliation. With respect to the minor, however, Gomez admitted that their conversations did not involve anything “out of the normal” and that his interactions with the minor were limited to “seeing him and acknowledging him” and “being around his pod every now and then.”
The victim was taken to the hospital, where a deputy sheriff observed bruises and abrasions about the victim’s head, face, and neck, as well as bruising on his back and shoulder area. Photographs of the victim’s injuries and of the recreation hall where the altercation occurred were admitted into evidence.
Probation counselor Bernard Gupton, the only witness who testified on behalf of the minor, was allowed to testify out of order, prior to the prosecution’s gang expert. Gupton explained that 11 juveniles were brought into the recreation hall for their “rec time.” A fight started and multiple juveniles who were “scattered all around” the hall were involved in it. “It was chaos.” While Gupton was “focus[ing]” on one altercation and trying to restrain a juvenile, he was “kind of glancing” elsewhere and saw Erik and Josiah “in the process of kicking” Christian. Gupton saw the victim being kicked for approximately five or 10 seconds. His observation of the kicking was not continuous but rather “disjointed” as he tried to use his radio for assistance. When Gupton saw the minor, the minor was handcuffed and on the floor in the same area as the victim. Although he did not see the minor kick the victim, Gupton could not say for sure that the minor was not involved in the kicking because Gupton did not see the whole incident from beginning to end. Gupton also could not see if anyone “threw any kind of gang sign, ” and he did not hear anyone “make any kind of gang claim.”
Jose Cardoza testified for the prosecution as an expert “in the area of criminal street gangs.” He has worked for the Santa Clara County Sheriff’s Office for approximately 10 years. For the last three of those years, Cardoza has been assigned to the investigations unit in the jail crimes and gang investigation unit. The types of gang-related activities that he has “observed in the field” include “[e]verything from violent crimes, assaults, to property crimes, to identity theft crimes as well.” When Cardoza was a patrol deputy, he conducted or assisted in at least 100 gang investigations, and in at least 20 of those he was the lead investigator. In his current assignment as an investigator, he has concluded that a gang motivated crime occurred in at least 30 cases. Cardoza’s gang-related training has consisted of, among other things, attending courses concerning the Nuestra Familia prison gang and meeting with, and gathering intelligence from, prison gang investigators. The courses that he has attended have addressed “[e]verything from intelligence to current gang trends.” Cardoza has also talked to colleagues in law enforcement to gain a “better understanding” of what is happening locally in the sheriff’s jurisdiction, as well as in other parts of the county and state. Further, he has spoken with former gang members and at least 100 current gang members “to gather intelligence and updated gang information on the current trends.”
Regarding gangs in general, Cardoza testified about the role of violence in gang culture. It is “common for someone to display his loyalty to a gang through violence, ” such as by attacking a rival gang member.
Cardoza has “concentrated on two particular gangs, ” “Northerner and Southerner gangs.” These two gangs are “synonymous” with Norteño and Sureño. Regarding Norteños, Nuestra Familia is a gang that originated in the California prisons. “[S]ubordinate” to the Nuestra Familia prison gang is Nuestra Raza. “And then you have lower level street gang members, northerners or Nortenos that align themselves with those two particular gangs.” Further, a Norteño might affiliate with a particular subset of street gangs or with a member of a certain gang, or the person might be a “general Norteno... and not be affiliated with any particular street gang.”
As of the date of the incident in this case, Northerners or Norteños were an ongoing group or association, consisting of three or more people, and had common identifying signs or symbols, including the number 14, the letter N, the color red, and the term Norte or Norteño. Further, the gang had a presence in both the “custodial setting and on the street setting.”
The “chief rivals” of Norteños are “Surenos, southerners and anybody who allies themselves with the Mexican Mafia prison gang.” The rivalry started in the California prisons and was primarily between the Mexican Mafia and Nuestra Familia but “continued on to the streets.” “[V]iolent confrontations” are “common between these two groups.”
Cardoza testified that Norteños have engaged in a “pattern of criminal activity.” He explained that based on his expertise, the crimes that constitute this pattern of criminal activity “are listed in section 186.22 of the Penal Code and they go through to violate crimes such as murder, assaults, property crimes such as burglary, vehicle theft, and identity theft type crimes, ” as well as drug sales. In Cardoza’s experience, “these types of crime” are “common, meaning they take place with regular occurrence.” Gang members commit the crimes to benefit the Norteño gang, including monetarily. “If it’s an assault, it benefits them in the way of taking on a rival or member that’s in bad standing.”
With respect to other crimes by Norteños, the prosecution introduced into evidence the felony complaints and other court records showing that an individual was convicted of robbery and four other individuals were convicted of assault in a separate incident. Some of the defendants’ sentences included additional punishment for a criminal street gang enhancement, while such punishment was stricken in the interests of justice as to the other defendants. Cardoza testified that in the robbery, which occurred in 2006, the defendant asked the victim whether he was a Sureño and it was later discovered that the defendant had described himself as a Norteño. Regarding the assault, which occurred in 2008, several members or affiliates of the Northerner or Norteño gang attacked an individual in jail. Based on the facts of the cases, Cardoza believed that the defendants in both cases were Norteño gang members when the crimes were committed.
Cardoza testified that the minor is a Norteño based on the facts of the case and on the minor’s prior contacts with law enforcement. Cardozo explained that he interviewed “the four victims” in the case and they all admitted being Sureño gang members. The “other six defendants” in the case are “all either Nortenos or Norteno affiliates.” Cardoza believed that the minor was a Norteño member, rather than “just a Norteno associate, ” because the minor had an “active role in the case” rather than just being present at the incident. The minor was reported to have kicked one of the victims “in association with some of the other defendants in this case.” Cardoza indicated that he was not aware of the minor belonging to any specific street gang “rather than just Norteno.” The minor’s past contacts with law enforcement included an occasion in which he was at a park with at least two other “documented” Norteños or Norteño affiliates. On another occasion, he was at a high school while in possession of a knife and “wearing a gang-related shirt that sa[id] ‘San Jo, 408.’ ” In another incident, the minor was carrying “an axe or something to that effect” at a mall while wearing red clothing and accompanying two others wearing red clothing.
Cardoza acknowledged that wearing red does not necessarily mean the person is a member or an associate of Norteños. Further, in his investigation of the present case, Cardoza did not find any field identification card by law enforcement that identified the minor as a gang member, did not find any admissions by the minor about being a gang member, and did not know whether the minor had been “jumped in” to a gang. Cardozo also was not aware of the minor being “validated” in custody as a Norteño, although he explained that the term may have different meanings or criteria depending on the agency or entity using the term and he did not believe the boys ranch in this case used that term.
Cardozo was presented with a hypothetical based on the facts of the case and he concluded that the attack was committed for the benefit of or in association with a Norteño criminal street gang. Cardozo based his opinion on the gang membership of the attackers who acted together, the gang membership of the victims, the fact that they are rival gangs, and the fact that a “violent assault occurred.” He explained that by attacking their rivals, Norteños benefitted in terms of gaining respect, instilling fear in that facility or in the streets, and promoting “solidarity” among Norteños which makes them stronger. Cardozo also believed that any person “who engages in that type of attack at a juvenile boys’ facility” could be a member of the Norteño gang.
Regarding the assault in the present case, Cardozo believed it benefitted the gang and was gang-related. He testified that one of the victims told him that “out of all the defendants that were involved in this case, none of them had ever talked to him because he was a Sureno.” Further, another victim told Cardozo that either remarks or nonverbal gestures were “made towards them earlier in the day prior to the assault taking place.” Cardozo was not aware of any suspect making any gang claims or throwing any gang signs during the attack. Cardozo explained, however, that in “a custodial setting type of gang-related crime... you can have a Norteno from San Jose incarcerated with a Norteno from Morgan Hill or Gilroy or any other party of the county. When they are in a custodial setting, they are functioning together. They are programming together. They are hanging out together. They are taking breaks together. They are bunking together and whatnot. [¶] The fact that... the defendants in this case were Nortenos or Northerners, and the fact that all four victims in this case were Surenos and the fact that they assaulted them in a violent manner together, led me to believe this is a gang-related crime.”
The Court’s Findings
On May 11, 2010, at the conclusion of the jurisdictional hearing, the juvenile court found true the allegations in the petition that the minor committed an assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and found true the gang enhancement (§ 186.22, subd. (b)(1)(B)).
On May 25, 2010, the juvenile court adopted the recommendations of the probation department and continued the minor as a ward of the court. Among other things, the court ordered the minor committed to the care, custody, and control of the probation officer for suitable placement under the supervision of the probation officer until September 1, 2010, at which time a family reunification plan would be reassessed. According to the probation officer, the minor had previously been accepted into the “Rite of Passage” program. The court also ordered that “[a]ll prior orders not in conflict remain in effect.”
The juvenile court’s May 25, 2010 order uses slightly different language in multiple places regarding the continuation of prior orders. For example, on one page, the court checked a box on a Judicial Council form stating: “All prior orders not in conflict remain in effect.” On a subsequent page, on a modified Judicial Council form, the court marked an “X” by the following sentence: “All prior orders not in conflict with today’s orders to remain in full force and effect.” The court also incorporated as part of its order the probation officer’s recommendations, which included that “all previous Orders of the Court not inconsistent with today’s Orders remain in full force and effect.”
On June 29, 2010, the minor filed a notice of appeal.
DISCUSSION
Sufficiency of the Evidence Regarding “Primary Activities”
On appeal, the minor contends that there was insufficient evidence to support the “primary activities” element of the gang enhancement.
“ ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175 (Young).) “Evidence is sufficient to support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ [citation], and is ‘credible and of solid value.’ [Citations.]” (People v. Raley (1992) 2 Cal.4th 870, 891 (Raley).) The substantial evidence standard of review applies to claims of insufficiency of the evidence to support a gang enhancement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Section 186.22, subdivision (b)(1) provides for additional punishment when the crime is committed “for the benefit of, at the direction of, or in association with any criminal street gang.” A criminal street gang “(1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses... during the statutorily defined period. (§ 186.22, subds. (e) and (f).)” (People v. Gardeley (1996) 14 Cal.4th 605, 617, italics added and omitted (Gardeley).) The specified criminal offenses include assault with a deadly weapon or by means of force likely to produce great bodily injury, robbery, unlawful homicide or manslaughter, sales of controlled substances, burglary, and vehicle theft. (§ 186.22, subd. (e)(1), (2), (3), (4), (11), (25).)
The California Supreme Court has explained that “[t]he phrase ‘primary activities, ’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. (See Webster’s Internat. Dict. (2d ed. 1942) p. 1963 [defining ‘primary’].) That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) To establish a gang’s primary activities, “[s]ufficient proof... might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members, ’ together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)” (Sengpadychith, supra, 26 Cal.4th at p. 324, italics omitted.)
In this case, we determine that substantial evidence supports the juvenile court’s implied finding that the Norteño gang has as one of its “primary activities” the commission of one or more of the statutorily enumerated crimes. (§ 186.22, subd. (f).) Cardoza testified as an expert on criminal street gangs and was asked about the crimes committed by Norteños. He indicated that the Norteño gang’s crimes included murder, assault, burglary, vehicle theft, and drug sales. These crimes specified by Cardoza are among those enumerated in the gang statute. (§ 186.22, subd. (e)(1), (3), (4), (11), (25).) Cardoza was asked immediately thereafter whether he would describe “these types of crimes as common, meaning that they take place with regular occurrence” (italics added), and he responded in the affirmative. Based on the sequence of questions and answers, it is apparent that the question concerning whether “these types of crimes” are common was intended to refer to the crimes that Cardoza had just specified, including murder, assault, burglary, vehicle theft, and drug sales. Further, Cardoza’s testimony that these crimes are “common” and “take place with regular occurrence” necessarily implies that the crimes are committed “consistently and repeatedly” (Sengpadychith, supra, 26 Cal.4th at p. 324) and are the gang’s “ ‘chief’ or ‘principal’ occupations” (id. at p. 323), and necessarily excludes any inference that the crimes were committed only occasionally by the gang’s members.
The minor cites In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), to support his contention that Cardoza’s testimony was insufficient. In Alexander L., the expert testified that he knew that the gang had committed “ ‘quite a few’ ” or “ ‘several’ ” assaults, and that the gang had “been involved” in certain other crimes. (Alexander L., supra, 149 Cal.App.4th at p. 611.) On cross-examination, however, he also testified “that the vast majority of cases connected to [the gang] that he had run across were graffiti related.” (Id. at p. 612, fn. omitted.) In contrast to Alexander L., the expert in this case testified that the Norteño gang committed several crimes enumerated in the gang statute and that those crimes by the Norteño gang were “common” or “regular occurrence[s].”
The minor further argues that Cardoza “failed to provide any foundation for his testimony” and that “no specifics were elicited as to the specific sources of [Cardoza’s] testimony in relation to the primary criminal activities of the Nortenos.”
We disagree with the minor’s characterization of the record. The prosecution elicited from Cardoza testimony about the various ways and many sources from which he developed information about gangs, including Norteños. The testimony established his extensive experience with gangs. He had worked for the county sheriff’s office for approximately 10 years, and his most recent assignment was to the investigations unit in the jail crimes and gang investigation unit. Even before this most recent assignment, Cardoza had conducted or assisted in at least 100 gang investigations. The gang-related activities that he “observed in the field” included “violent crimes, assaults, [and] property crimes, ” and among the gangs in the county, Cardoza “concentrated” on Northerner and Southerner gangs. His gang-related training included attending courses concerning the Nuestra Familia prison gang and meeting with, and gathering intelligence from, prison gang investigators. He also obtained gang information from colleagues in law enforcement both locally and in other parts of the state, and he talked to former gang members and at least 100 current gang members “to gather intelligence and updated gang information on the current trends.” We observe that the minor did not challenge Cardoza’s qualifications as a gang expert (see People v. Duran (2002) 97 Cal.App.4th 1448, 1463), and the minor did not object to Cardoza’s testimony concerning the specific crimes by Norteños that are common or regularly occurring (cf. Evid. Code, §§ 721, subd. (a) [expert may be cross-examined as to basis for opinion], 803 [opinion testimony “shall” be excluded “upon objection” if based on improper matter]). In view of Cardoza’s experience with gangs, including his conversations with gang members, investigation of numerous gang-related crimes, and gang information from other law enforcement personnel, there was sufficient foundation for his testimony. (Gardeley, supra, 14 Cal.4th at p. 620; People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [sufficient foundation for gang expert’s testimony regarding primary activities based on his “eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports”].)
Accordingly, we conclude that there was sufficient proof of the primary activities element as required by section 186.22, subdivision (f).
Probation Conditions
On appeal, the minor raises constitutional challenges based on vagueness and overbreadth to the probation conditions that we have recited above regarding gangs, possession of alcohol or controlled substances, and presence at a school campus or a courthouse. The minor contends that the conditions must be modified or, with respect to the courthouse condition, stricken and the matter remanded so that the juvenile court may reconsider the necessity and purpose of the condition.
The challenged conditions were imposed by the juvenile court in its February 1, 2010 dispositional order. In this appeal following the subsequent May 25, 2010 dispositional order, the minor acknowledges that the challenged conditions “were imposed in [his] prior juvenile criminal dispositions” but he contends that the probation conditions were “effectively reimposed by the trial judge in the instant case when she ordered that all prior orders not in conflict with the current disposition should remain in effect.” The minor concedes that his challenges in this appeal to the probation conditions are “barred” based on In re Shaun R. (2010) 188 Cal.App.4th 1129 (Shaun R.), but he argues that the “holding” of Shaun R. concerning the “all prior orders” provision “was mistaken.”
The Attorney General contends that because the minor “never appealed from, nor raised any contemporaneous challenge to those probation conditions at any of the dispositional hearings at which they were imposed and ordered to ‘remain in effect, ’ he may not challenge those conditions in this appeal.” The Attorney General further asserts that the minor fails to provide a persuasive argument for rejecting the reasoning of Shaun R.
We determine that the constitutional challenges raised by the minor may not be entertained in this appeal. The minor did not appeal from the February 1, 2010 dispositional order, and that order is now final. (Shaun R., supra, 188 Cal.App.4th at pp. 1138-1139; Cal. Rules of Court, rule 8.406(a)(1).) Although the juvenile court thereafter continued in effect “[a]ll prior orders not in conflict” and “all previous Orders of the Court not inconsistent” with more recent orders, as stated in Shaun R., “[w]e do not agree that the routine continuation of a previous order without change revives the right to appeal the merits of a previous order that has become final.” (Shaun R., supra, 188 Cal.App.4th at p. 1139.) Thus, the “[a]ll prior orders” and “all previous Orders” provisions in the May 25, 2010 dispositional order did not create a right to appeal the earlier February 1, 2010 dispositional order, and we do not have jurisdiction to entertain the minor’s arguments with regard to the probation conditions contained in that earlier order. (Shaun R., supra, 188 Cal.App.4th at p. 1141.) The minor does not articulate a persuasive basis for us to depart from the reasoning in Shaun R. We also observe that the minor “is not without a remedy because he may seek modification of the [challenged] condition[s] in the juvenile court. (Welf. & Inst. Code, §§ 775, 778; In re Luis F. (2009) 177 Cal.App.4th 176, 192...; In re Brian K. (2002) 103 Cal.App.4th 39, 44.)” (Shaun R., supra, 188 Cal.App.4th at p. 1141.)
DISPOSITION
The dispositional order of May 25, 2010, is affirmed.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Mihara, J., Concurring and Dissenting.
I dissent from the majority’s conclusion that appellant is precluded from challenging several probation conditions that originated in a February 2010 dispositional order and were incorporated into the court’s May 2010 dispositional order by means of its provision that “All prior orders not in conflict remain in effect.” I dissented in In re Shaun R. (2010) 188 Cal.App.4th 1129, and I continue to hold that position. Therefore, I would reach the merits of appellant’s challenges to these probation conditions.