Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J34901
Pollak, J.
Sixteen-year-old K.S. appeals from a dispositional order placing her on probation subject to the condition that she have no contact with her 20-year-old sister C.S. Although no objection was raised to this condition in the juvenile court, K.S. contends here that the condition is unconstitutionally overbroad. To the extent that the objection has not been forfeited by K.S.’s failure to raise the objection below, we reject the contention. To the extent there may be merit in the objection, it has been forfeited, although K.S. retains the right to request the juvenile court to modify or limit the restriction.
Background
On July 24, 2006, a single-count petition was filed in Alameda County juvenile court, pursuant to Welfare and Institutions Code section 602, alleging that K.S. had solicited an act of prostitution. (Pen. Code, § 647, subd. (b).) K.S. admitted to loitering with intent to commit prostitution (Pen. Code, § 653.22), and the matter was then transferred for disposition to Solano County, where K.S. was already a ward of the court. Among other orders entered at the disposition hearing, K.S. was placed in the custody of her mother under the supervision of the probation officer, and ordered to have no contact with her older sister, C.S.
According to the supplemental probation report prepared for the dispositional hearing, K.S. and her then 19-year-old sister approached an undercover police officer’s car and together agreed to engage in sex with the officer in exchange for money. According to the probation report: “It is noted in the police report that the dialogue exchanged was between the minor’s older sister and the officer. The police report indicated the minor nodded her head in agreement prior to entering the police car.” The report also points out that K.S. denied she was going to engage in prostitution and told the probation officer she “thought the charges were simple loitering.” K.S. “said everything happened so fast. She will stay away from her sister and from her father’s house.” The probation report recommended numerous terms and conditions for disposition, including a short commitment in juvenile hall, a stringent curfew and electronic monitoring. The report also recommended that K.S. be ordered to have no contact with her “co-responsible” sister, against whom the report indicated charges were pending in superior court.
At the dispositional hearing, both counsel submitted based on the recommendations of the probation officer and the court adopted those recommendations. As to the condition in question, the court stated simply, “Don’t have any contact with [C.S.].” The court concluded with the statement, “And those are the new orders of probation,” to which K.S. responded, “Okay,” and the hearing terminated.
K.S. filed a timely notice of appeal from the dispositional order.
Discussion
Initially, we must consider whether K.S.’s failure to raise her constitutional objection to the probation condition in the juvenile court bars her from doing so on appeal. Our Supreme Court very recently resolved a conflict between the courts of appeal on this question in In re Sheena K. (2007) 40 Cal.4th 875 (Sheena). The court held that the doctrine of forfeiture on appeal does not apply to challenges to probation conditions based on “facial constitutional defects” that do “not require scrutiny of individual facts and circumstances.” (Id. at pp. 885, 886). However, the forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions “premised upon the facts and circumstances of the individual case.” (Id. at pp. 885, 889.)
The challenge K.S. presents to the probation condition in this case falls partially into both categories. To the extent that K.S. contends that a condition prohibiting her from having any contact with her sister necessarily violates a constitutionally protected right of freedom of association (People v. Garcia (1993) 19 Cal.App.4th 97, 102), the argument has not been waived, but it lacks merit. “The juvenile court has wide discretion to select appropriate conditions and may impose ‘ “any reasonable condition that is ‘fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ ” ’ ” (Sheena, supra, 40 Cal.4th at p. 889.) The discretion of the court in establishing conditions of juvenile probation may be even broader than in setting conditions of adult probation. (Ibid.; In re Daniel R. (2006) 144 Cal.App.4th 1, 6-7) “ ‘A juvenile probation condition is generally valid unless it “ ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’ ” ’ ” (In re Daniel R., supra, 144 Cal.App.4th at p. 6.)
The condition that K.S. have no contact with her older sister meets this test, since the probation report suggests that K.S.’s sister instigated K.S.’s participation in the prostitution activity and it is entirely reasonable to fear that she may encourage such participation in the future. Although the stay-away restriction undoubtedly curtails a constitutionally protected right of free association, “[t]he right to associate . . . ‘may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.’ [Citations.] . . . A limitation on the right to associate which takes the form of a probation condition is permissible if it is ‘(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 627-628.) In People v. Wardlow (1991) 227 Cal.App.3d 360, 367, the court upheld a condition of probation prohibiting an adult convicted of child molestation from contacting two brothers who also had histories of child molestation, observing: “Conditions of probation prohibiting an individual from associating with other persons including spouses and close relatives, who have been involved in criminal activity have generally been upheld when reasonably related to rehabilitation or reducing future criminality.” (Id. at p. 367.) Thus, there is no merit to the contention that the stay-away condition is, on its face, a constitutionally impermissible condition.
K.S. makes a second facial attack on the probation condition in arguing that the condition is “fundamentally unfair because, as a juvenile, whether appellant has any contact with her sister may not be within her control.” She cites two cases that disapproved of probation conditions that the minor obtain satisfactory school grades, which was beyond their capacity. (In re Robert M. (1985) 163 Cal.App.3d 812; In re Juan G. (2003) 112 Cal.App.4th 1, 6-8.) However, we accept the Attorney General’s interpretation of the order in this case: “A wholly unforeseen and unavoidable contact with a proscribed person would not result in a finding that appellant had violated the no-contact condition. Reasonably construed, the condition proscribes deliberate and intentional exchanges, not mere happenstance. So long as appellant takes reasonable actions to avoid contact and terminates unavoidable contact at the first opportunity, she will not be in violation of the condition.”
K.S.’s principal contention, however, is that the unqualified condition imposed in this case is constitutionally overbroad. She argues correctly that since the condition does impinge on her constitutionally protected right of association, it must be drawn narrowly to do no more than accomplish it rehabilitative goals without unnecessarily restricting her ability to associate with family members. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242; People v. Garcia, supra, 19 Cal.App.4th at p. 102.) A condition infringing on constitutional rights must be “tailored to fit the individual probationer.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373; In re Daniel R., supra, 144 Cal.App.4th at p. 7.) Thus, in In re Antonio R. (2000) 78 Cal.App.4th 937, 939, the court upheld a condition of juvenile probation prohibiting a minor, who resided in Orange County, from entering Los Angeles County unless accompanied by a parent or with prior permission from the probation officer. In In re Daniel R., supra, 144 Cal.App.4th at pages 8-9,the court modified a probation condition prohibiting a minor who resided in San Diego from traveling to Mexico “under any circumstances” by adding the qualification, “unless in the immediate custody and control of the parent or legal guardian and with prior Probation Officer permission.”
Here, K.S. argues that the prohibition of all contact with her older sister is overbroad and unnecessary to prevent C.S. from encouraging her to engage in further acts of prostitution. The condition, she argues, “could prevent her from enjoying and maintaining relationships with other members of her family,” and may require her “to limit or stop her visits with other family members . . . . joining a family celebration at Thanksgiving or Christmas or attending other important events, including funerals and weddings involving family and family friends.” Based on the limited record that is before us, we tend to believe that the probation condition could be more narrowly crafted to achieve its purposes without such ancillary consequences. The prohibition might be limited, for example, to occasions when not accompanied by a parent or other specified person, or to locations other than the home of a parent, or to exclude situations approved by the probation officer. However, because K.S. did not raise this concern in the trial court, the court was not called upon to consider the many variables that should be taken into account in fashioning limitations appropriate to the circumstances, including the relationship between K.S. and her sister and other family members. Unlike the overbreadth of the order in Sheena that the minor not “ ‘associate with anyone disapproved of by probation’ ” (Sheena, supra, 40 Cal.4th at p. 880), that was corrected by simply inserting the qualification that the minor have knowledge of the disapproval, the determination of qualifications that may be appropriate here does “require scrutiny of individual facts and circumstances” (id. at p. 885). Therefore, “ ‘ “[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” ’ ” (Id. at p. 889.) The contention that the stay-away condition has not been sufficiently tailored to K.S.’s circumstances has been waived because it was not raised in the juvenile court. (Ibid.)
Nonetheless, “[a]t any time during the period of continued jurisdiction over a minor the court may change, modify or set aside any order it has previously made with respect to [her].” (In re Francis W. (1974) 42 Cal.App.3d 892, 897.) Welfare and Institutions Code section 775 provides expressly that “[a]ny order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.” (See Welf. & Inst. Code, § 778; In re Kazuo G. (1994) 22 Cal.App.4th 1, 6, overturned on other grounds by Proposition 21, see, e.g., In re Melvin J. (2000) 81 Cal.App.4th 742, 750, fn. 4.) Should K.S. believe that circumstances not previously addressed make it appropriate to qualify or otherwise modify the condition that she stay away from her sister, the issue is more appropriately addressed in the first instance in the trial court rather than for the first time on appeal.
Disposition
The dispositional order of the juvenile court is affirmed.
We concur: Parrilli, Acting P. J., Siggins, J.