Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. DL025800, Richard E. Behn, Judge.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, ACTING P. J.
J.S. appeals from a judgment continuing him as a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 and ordering probation. J.S. contends four of his probation conditions are unconstitutional. As we explain below, two of his contentions have merit, and two of his claims are forfeited. We affirm as modified the non association condition and the no wireless communication devices condition consistent with this opinion. In all other respects, the judgment is affirmed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS
J.S. was a member of the criminal street gang “‘Orange County Pelones’” and had the gang moniker “‘Smokey.’” After his arrest for possessing a knife on school grounds, the juvenile court declared J.S. a ward of the court and placed him on probation. Less than one month later, J.S. was arrested for and admitted to stealing his grandfather’s van. The court continued J.S. on probation.
At a probation revocation hearing the following year, Jaime Villarreal, J.S.’s probation officer, testified J.S. violated his probation by failing to report to a meeting and failing to submit to a drug test. The juvenile court found J.S. violated his probation. J.S. asked the court to terminate probation because he was approaching 19 years of age. The court rejected J.S.’s request and continued his wardship and probation reasoning J.S. admitted he was an active gang member. The court imposed the following probation conditions, which are the subject of this appeal, and which we will recite in their entirety below: (1) non association; (2) no wireless communication devices; (3) curfew; and (4) no tattoos.
DISCUSSION
J.S. argues the juvenile court imposed four unconstitutional probation conditions. The Attorney General responds J.S. did not object to the probation conditions below. However, based on In re Sheena K. (2007) 40 Cal.4th 875, 878-879 (Sheena K.), the Attorney General concedes J.S. can contest the non association and no wireless communication devices conditions because he claims they are facially unconstitutional. But the Attorney General asserts J.S. forfeited appellate review of the curfew and no tattoos conditions because he claims they are unconstitutional as applied to him. As to the forfeiture issue, we agree with the Attorney General on both counts. With respect to the constitutionality of the non association and no wireless communication devices conditions, we agree with J.S.
The juvenile court has wide discretion in establishing appropriate conditions of probation. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1015 (Byron B.).) Within this discretion, “[t]he court 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.” (§ 730, subd. (b).)
“‘[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.]” (Sheena K., supra, 40 Cal.4th at pp. 889-890.) “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.” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) “‘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 over broad. [Citation.]’ [Citation.]” (In re Vincent G. (2008) 162 Cal.App.4th 238, 245 (Vincent G.).)
Facial constitutional challenges are preserved where they represent “‘pure questions of law that can be resolved without regard to the sentencing record in the trial court.’” (Sheena K., supra, 40 Cal.4th at p. 884.) All fact-based contentions of probation condition reasonableness are forfeited when failing to raise the challenge in the juvenile court. (Vincent G., supra, 162 Cal.App.4th at p. 246.) We evaluate J.S.’s claims as to the constitutionality of the non association and no wireless communication devices conditions objectively, without determining the reasonableness of his specific situation.
I. Non association
J.S. argues the non association condition is unconstitutionally vague and over broad. We agree.
In the clerk’s transcript, the non association condition states in relevant part: “Your associates are to be approved by your probation officer and your parents/guardian.” In the reporter’s transcript, the condition provides: “His associates are to be approved by probation.”
This is the first of three inconsistencies in the clerk’s and reporter’s transcripts concerning the probation conditions at issue here. The inconsistency concerning the non association condition is minor, and is of no consequence as to our conclusion. However, we will address the other inconsistencies anon.
Knowledge requirements are necessary for non association probation conditions to avoid unconstitutional vagueness. (Sheena K., supra, 40 Cal.4th at pp. 890-891.) Here, J.S. was not notified in advance of persons with whom he may associate, and “an explicit knowledge requirement is necessary to render the condition constitutional.” (Id. at p. 892.)
The Attorney General contends the non association condition here is different from that in Sheena K., supra, 40 Cal.4th at page 880, because the condition was framed in the positive (“associates are to be approved”), rather than the negative (“not associate with anyone disapproved of by ‘[p]robation [o]fficer’”). Even if this subtle re framing avoided unconstitutional vagueness, the condition is still unconstitutionally over broad. A condition, like the instant one, that requires “the probation officer to approve [the minor’s] ‘associat[ion]’ with ‘persons’ such as grocery clerks, mail carriers, and health care providers[,]” is unconstitutionally over broad. (In re Kacy S. (1998) 68 Cal.App.4th 704, 713.) The condition does not meet the required narrow tailoring where constitutional rights of free association are limited. We therefore modify the probation condition to read: You are not to associate with anyone known to be disapproved of by probation or your parents/guardian. (Sheena K., supra, 40 Cal.4th at p. 880 [challenges of unconstitutional vagueness or over breadth are pure questions of law and are remediable on appeal by modification of the condition].)
II. No wireless communication devices
J.S. contends the no wireless communication devices condition is unconstitutionally over broad. Because the condition is not narrowly tailored, we agree. We must first address an inconsistency in the clerk’s and reporter’s transcripts concerning this condition.
In the clerk’s transcript, the no wireless communication devices condition states: “Do not possess a beeper, pager, cellular phone[,] or any other cordless or otherwise wireless communication device.” However, the reporter’s transcript indicates the juvenile court ordered: “He is not to possess any beepers, pagers, cell phones, or any other cordless communication devices without approval of the probation department.” (Italics added.) Neither party points out this discrepancy, and both rely on the version found in the reporter’s transcript. We will do the same. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1241-1243 [juvenile court clarified condition at oral proceeding]; see People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [conflict between reporter’s transcript and clerk’s transcript concerning sentencing general rule oral pronouncement controls]; but see People v. Smith (1983) 33 Cal.3d 596, 599 [whether clerk’s minutes should prevail against contrary statements in the reporter’s transcript depends upon circumstances of case].)
Resolving discrepancies between the clerk’s and reporter’s transcripts on appeal is troublesome, particularly when addressing the constitutionality of such conditions. Although we are mindful of the volume of matters a trial court must process under tremendous time pressures, we cannot overstate the need for accuracy in court records.
Courts have broad discretion to impose probation conditions. “Because probation conditions foster rehabilitation and protect the public safety, they may infringe the constitutional rights of the defendant, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ [Citation.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 703.) We also recognize juvenile probationers are entitled to even less constitutional protection than their adult counterparts. “[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.’” (Ginsberg v. New York (1968) 390 U.S. 629, 638.) Thus, “juvenile conditions 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.” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) The court’s discretion is not unbounded, however. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941; People v. Cervantes (1984) 154 Cal.App.3d 353, 358.) Its “discretion must be exercised in a reasonable manner and is limited by certain constitutional safeguards. [Citations.]” (People v. Beach (1983) 147 Cal.App.3d 612, 620.) Therefore, probation conditions must be both reasonable and constitutional.
The nature of today’s society has made the use of cell phones, pagers, and beepers ubiquitous and an important medium for communication. Regulation of which must therefore be narrowly tailored to not conflict with the First Amendment. (In re Englebrecht (1998) 67 Cal.App.4th 486, 496 (Englebrecht).) “‘The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaningful method of its expression. To take the position that the right of free speech consists merely of the right to be free from censorship of the content rather than any protection of the means used, would, if carried to its logical conclusion, eliminate the right entirely. The right to speak freely must encompass inherently the right to communicate.’ [Citations.]” (Id. at pp. 496-497.)
We recognize Englebrecht, supra, 67 Cal.App.4th 486, was factually and procedurally different from this case. Englebrecht involved a preliminary injunction and did not involve a probation condition, but we conclude the constitutional principles articulated in Englebrecht are sound and applicable under the circumstances of this case. The imposition of probation conditions, like the restrictions in the injunction in Englebrecht, must be specifically tailored or “‘narrowly drawn.’” (People v. Pointer (1984) 151 Cal.App.3d 1128, 1139.)
While wireless communication devices can be used for illegal purposes, they are also used for legitimate communication. Without a nexus between the use of mobile communication technology and the public interest the state is trying to protect, “an all-encompassing ban on pagers and beepers poses a greater burden on the defendants’ right to free speech than is necessary to serve the district attorney’s legitimate interest[.]” (Englebrecht, supra, 67 Cal.App.4th at p. 498.)
We understand a juvenile court can limit the freedom of a ward in ways not acceptable for adults, but without narrow tailoring, this condition is an excessive restriction of J.S.’s First Amendment rights. It is a prior restraint on J.S.’s constitutional right to all expression in that he must obtain his probation officer’s permission before he may possess and use any wireless communication device to communicate. And, the condition prohibits him from communicating with everyone, not just fellow gang members, with whom the juvenile court was concerned. As the Englebrecht court concluded, “pagers and beepers are used to contact workers in the field in numerous businesses and professions, and they enable parents or family members to be readily contacted if the need arises.” (Englebrecht, supra, 67 Cal.App.4th at p. 498.)
Here, the juvenile court failed to narrowly tailor the condition so as to “not run afoul of the First Amendment” (Englebrecht, supra, 67 Cal.App.4th at p. 496), and made “no attempt to narrow the provision [to] enjoin[] [only] the use of these devices to abet criminal activities[.]” (Id. at p. 498.) Without referring to the factual findings in the record, we address the facial constitutional challenge J.S. has presented as to the wireless communication devices condition. Accordingly, we modify the condition to read as follows: He is not to use any beepers, pagers, cell phones, or any other cordless device for any unlawful purpose or to communicate with fellow gang members or associates or anyone known to be disapproved of by probation or your parents/guardian.
III. No tattoos and curfew conditions
J.S. argues the trial court erroneously imposed the no tattoos condition, because it “violates his constitutionally protected right to govern his own personal appearance[,]” and the curfew provision, because of his age. As we explain below, J.S. forfeited appellate review of these conditions by failing to object at trial.
In the reporter’s transcript, the no tattoos condition states: “He is . . . not to obtain any tattoos.” The curfew provision provides: “He’s not to be out of his home between 8:00 p.m. and 5:00 a.m. without prior approval of the probation department.”
Again, we have a discrepancy between the reporter’s transcript and the clerk’s transcript. In the clerk’s transcript, the no tattoos provision states: “Do not obtain tattoos except as permitted by your probation officer.” (Italics added.) Because we conclude J.S. forfeited appellate review of this condition, we need not resolve the inconsistency.
J.S. suggests his counsel’s interjection at the probation revocation hearing that the probation conditions appeared “intrusive,” might have been enough to constitute an objection. First, as relevant here, he objected only to the curfew condition, and not the no tattoo condition. Second, claiming a probation condition is “intrusive” is not an objection. And, later at the dispositional hearing, while defense counsel contested the gang probation conditions because J.S. was nearing 19 years of age, counsel did not renew her objection to any specific probation conditions. Based on the record before us, we conclude J.S. did not object to the no tattoo and curfew conditions. That does not end our inquiry, however. We must now determine whether his claims are forfeited. We conclude they are.
With respect to the no tattoo provision, J.S. concedes it is not a “First Amendment problem[,]” but instead an issue of his right to control his appearance. To determine whether this condition is proper would require us to look beyond the language of the condition to the underlying facts, a matter not litigated below. His reliance on Bishop v. Colaw (8th Cir. 1971) 450 F.2d 1069, is misplaced as that case did not involve the reasonableness of a probation condition. An obvious legal error at sentencing that is “correctable without referring to factual findings in the record or remanding for further findings” is not subject to forfeiture. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) “In contrast, a probation condition may not be patently unconstitutional but may suffer nonetheless from vagueness or over breadth. Or in some instances, a constitutional defect may be correctable only by examining factual findings in the record or remanding to the trial court for further findings.” (Sheena K., supra, 40 Cal.4th at p. 887.)
As to the curfew provision, J.S. points to his age to claim the condition is improper. This condition too would require us to look beyond the condition’s language to the underlying facts, again an issue not litigated below. These are questions of reasonableness, which we review only when the challenge was raised in the juvenile court. (Vincent G., supra, 162 Cal.App.4th at p. 246.)
Finally, to the extent J.S. claims his age should excuse him from juvenile court jurisdiction, he is incorrect. “While the juvenile court is precluded from initiating jurisdiction over a person who has reached the age of 18 [citation], after it has properly obtained jurisdiction, it ‘. . . may retain jurisdiction over any person who is found to be a dependent child of the juvenile court until the ward or dependent child attains the age of 21 years.’ [Citations.]” (In re Robert L. (1998) 68 Cal.App.4th 789, 793.) J.S. was under the age of 18 when the juvenile court obtained jurisdiction and labeled him a ward of the court, and the court’s retention of jurisdiction after reaching majority age is proper. (In re Maria A. (1975) 52 Cal.App.3d 901, 903-904.)
DISPOSITION
We affirm as modified the non association condition and the no wireless communication devices condition. The non association condition is modified to read as follows: You are not to associate with anyone known to be disapproved of by probation or your parents/guardian. The no wireless communication devices condition is modified to read as follows: He is not to use any beepers, pagers, cell phones, or any other cordless device for any unlawful purpose or to communicate with fellow gang members or associates or anyone known to be disapproved of by probation or your parents/guardian. In all other respects, the judgment is affirmed.
I CONCUR: FYBEL, J.
CONCURRING OPINION
Aronson, J.
I concur in the majority’s reasoning and disposition in all respects except its conclusion that the juvenile court violated the minor’s First Amendment rights when it restricted his access to wireless communication devices. The minor forfeited his right to contest the constitutionality of this probation condition by failing to object in the juvenile court, and the majority’s “modification” on appeal runs afoul of the principles enunciated in In re Sheena K. (2007) 40 Cal.4th 875, 887 (Sheena K.) On the merits, I conclude the probation condition the majority rejects advanced the goals of juvenile rehabilitation and supervision without violating First Amendment principles.
In Sheena K., the Supreme Court faced a “classic” vagueness infirmity that was discernible on the face of the probation term, without reference to the sentencing record. (See Sheena K., supra, 40 Cal.4th at pp. 890-891 [“probation condition ‘[p]rohibiting association with gang members without restricting the prohibition to known gang members is “‘a classic case of vagueness’”’”].) There is no similar facial infirmity in a probation term barring wireless devices; at most, any infirmity depends upon the circumstances. The minor, however, forfeited his as-applied challenge. Because the sentencing record may reveal factors justifying a no wireless device term in a particular case, and because Sheena K. precludes us from examining the record to determine if this is such a case, I would hold the minor forfeited his challenge to the term here.
On the merits, I disagree with the majority’s conclusion the wireless device restriction is unconstitutional as applied to the minor. In placing the minor on probation, the juvenile court must consider not only the circumstance of the crime, but the minor’s social history. (In re Todd L. (1980) 113 Cal.App.3d 14, 20.) Here, the minor was on probation for possessing a knife on public school grounds (Pen. Code, § 626.10, subd. (a)), violated probation when the juvenile court sustained a subsequent delinquency petition for unlawfully taking a motor vehicle (Veh. Code, § 10851, subd. (a)), and again violated probation by failing to report to his probation officer and failing to submit to drug testing. The minor admitted he was an active member in the criminal street gang “Orange County Pelones” and admitted abusing alcohol and drugs by smoking marijuana and using methamphetamine “at least twice a week.” Faced with these facts, it hardly was unreasonable for the juvenile court to restrict the minor’s access to cell phones and other wireless devices, which are recognized as tools of the trade for gang members and drug dealers and their customers. Indeed, minor does not challenge the reasonableness of the probation condition, but complains its over broad language interferes with his constitutional right to freedom of expression under the First Amendment. (See Sheena K., supra, 40 Cal.4th at p. 886 [distinguishing challenges to probation conditions based upon unreasonableness from those based upon facial constitutional defects].)
To establish an unreasonable probation condition, the defendant must show it bears no relationship to the crime committed, relates to conduct which is not itself criminal and requires or forbids conduct which is not reasonably related to future criminal behavior. (People v. Lent (1975) 15 Cal.3d 481, 486.)
The majority agrees with minor, finding the probation condition a prior restraint on J.S.’s “constitutional right to all expression” because “he must obtain his probation officer’s permission before he may possess and use any wireless communication device . . . .” (Maj. opn. ante, at p. 7.) The majority also concludes the probation term “prohibits him from communicating with everyone, not just fellow gang members.” (Maj. opn. ante, p. 7.) But this simply is not true. The minor may fully exercise his constitutional right of expression in any medium except through wireless communication devices. Assuming he does not violate the non association condition, minor may speak with anyone he chooses but must simply employ less sophisticated means of expression, like a landline phone, the mail, or in person contact.
The only support the majority offers for their conclusion is based on In re Englebrecht (1998) 67 Cal.App.4th 486 (Englebrecht). There, the trial court issued a preliminary injunction prohibiting the use or possession of pagers or beepers within a “Target Area” known for gang activity and illegal drug sales. The appellate court entertained a facial challenge to the constitutionality of the order after the trial court found the petitioner in contempt. The court noted no evidence had been introduced showing a “nexus” between the use of pagers and beepers and the abatement of the public nuisance. (Id. at p. 498.) As the court explained, “There was no attempt to narrow the provision so that it enjoins the use of these devices to abet criminal activities –– e.g., to facilitate drug sales or to assist fellow gang members to elude police –– the type of conduct that has contributed to the public nuisance.” (Id. at pp. 498-499.) In the light of this evidentiary void, and because citizens commonly use mobile communication devices for legitimate purposes, the court found the order constitutionally over broad.
The distinction between Englebrecht and the present case is readily apparent. Englebrecht dealt with the breadth of an order that impacted the constitutional rights of third parties not before the court. As Englebrecht explained, “A party, such as Englebrecht, is allowed to challenge a statute on its face not because his own rights of free expression are violated, but because its ‘very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” (Englebrecht, supra, 67 Cal.App.4th at p. 497.) Because the mere existence of the order might dissuade others from exercising their rights of free speech, the Englebrecht court was compelled to tailor the injunction narrowly to avoid violating the constitutional rights of citizens entering the target area.
“It is the absent members of the unrepresented class who, ‘sensitive to the perils posed by . . . indefinite language, avoid the risk . . . by restricting their conduct to that which is unquestionably safe’ [citation], for whom the over breadth doctrine was fashioned.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1113.)
Englebrecht’s analysis simply does not apply to a post conviction probation condition. “Because probation conditions foster rehabilitation and protect the public safety, they may infringe the constitutional rights of the defendant, who is ‘not entitled to the same degree of constitutional protection as other citizens.’” (People v. Jungers (2005) 127 Cal.App.4th 698, 703.) Juvenile probationers are entitled to even less constitutional protection than their adult counterparts. “[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.’” (Ginsburg v. New York (1968) 390 U.S. 629, 638.) Thus, “juvenile conditions 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 . . . constitutional rights . . . .’” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)
Thus, Englebrecht is not analogous to the present case because it dealt with the terms of an injunction that could impair the constitutional rights of third parties not before the court. Having committed no crimes, third parties are entitled to protection from over broad court orders invading their rights. As described above, juvenile probationers do not stand on the same footing as innocent citizens or adult probationers. The majority’s analogy to Englebrecht breaks down further when considering the nexus between the prohibited conduct and the proposed remedy. In Englebrecht no evidence was offered to show a connection between the use of beepers and pagers and the public nuisance enjoined. In contrast, it is undisputed gang members and drug dealers use wireless communication devices to facilitate their crimes.
The issue before us is whether the probation condition imposed violated the minor’s constitutional rights, not whether more narrow alternatives were available. It does not follow logically that a probation condition is constitutionally over broad merely because an appellate court can devise language to narrow its scope. For instance, a routine probation condition in a misdemeanor assault case prohibits a probationer from owning or possessing a dangerous or deadly weapon, including firearms. Of course, the trial court has the discretion to tailor the term to permit the probationer to use firearms only for hunting. But opting to impose the broader term does not mean the court violates the probationer’s Second Amendment right to bear arms. Based on today’s decision, this outcome is now in doubt.
If a defendant used a cell phone regularly to order or deliver illegal drugs, or to order or coordinate gang hits or other gang activities, I see no reason why a court could not reasonably and constitutionally take the phone away. This is particularly so where the juvenile court, parens patrie, has greater authority to restrict a minor’s rights. Even though innocuous or lawful uses exist, the defendant in such circumstances has demonstrated he or she cannot be trusted with the device; I see nothing wrong with interdicting the defendant’s chosen means of conducting criminal activity. Indeed, the minor here may have a history of using his cell phone repeatedly to commit serious criminal misdeeds. As pointed out above, we do not know because the prosecution never had an opportunity to present evidence supporting the juvenile court’s order because the minor failed to object to it below. (Sheena K., supra, 40 Cal.4th at p. 887.)
There are three problems with an appellate court micromanaging how the juvenile court structures its probation conditions after the fact. First, we do not “re-do” probation terms in this court; on appeal, we review for error (Cal. Const., art. II, § 13) and none has been demonstrated here. (People v. Alvarez (1996) 14 Cal.4th 155, 186-187 [even constitutional rights may be forfeited by failure to object].)
Second, and related to our proper appellate role, we are in no position to make a modification — let alone to do so blindly on no record. By modifying the probation term to prohibit the minor only from using a wireless device for “unlawful” uses, the majority is substituting its judgment without any idea whether the original probation term was warranted on the facts known to the juvenile court.
Third, in substituting its judgment for the juvenile court’s, the majority creates an empty probation condition that cannot be enforced. The majority purports to integrate the no-association condition into its new authorization of wireless devices, but gives no hint how the police or probation department will enforce this term. Through STEP cards and repeated contacts, officers in the field become familiar with gang members, giving them some chance to enforce no-association provisions, but I doubt they memorize gang cell phone numbers, if they learn them at all. Nor is there any indication the probation department routinely culls phone records or has the resources to scrutinize them line-by-line, marking and following up on potentially prohibited ones. In combination, the minor’s failure to object and the majority’s willingness to craft a new term on appeal deprive the People of any chance to contest the term on factual or legal grounds.
I would affirm the judgment without modifying the no wireless devices probation condition.