Opinion
D074585
10-21-2019
In re CRISTIAN A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN A., Defendant and Appellant.
Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J241262) APPEAL from order of the Superior Court of San Diego County, Aaron H. Katz, Judge. Conditionally reversed and remanded with directions. Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Cristian A., a minor, appeals a dispositional order adjudging him a ward of the court pursuant to Welfare and Institutions Code section 602 and placing him on formal probation, subject to various terms and conditions. He contends that the order must be reversed and remanded because the People failed to give him notice of the Deferred Entry of Judgment program (DEJ; §790 et seq.). The People concede this issue and we agree that the order must be conditionally reversed and remanded to consider this option. Cristian also contests four conditions of probation, which we discuss in case the juvenile court reinstates its dispositional order.
Further statutory references are to the Welfare & Institutions Code unless otherwise specified.
Procedural Background
The San Diego County District Attorney's Office filed a petition on May 7, 2018, under section 602 alleging that Cristian, a minor, committed one count of felony vandalism under $400, for the benefit of a criminal street gang (Pen. Code, §§ 594, subds. (a), (b)(2)(A), 186.22, subd. (d), count 1), and one count of misdemeanor possession of a controlled substance, Xanax (Health & Saf. Code, § 11375, subd. (b)(2), count 2). It appears that a second petition was filed on August 4, 2018, alleging that Cristian made two criminal threats for the benefit of a criminal street gang (Pen. Code, §§ 422, 186.22, subd. (d), counts 1, 2).
Vandalism causing less than $400 in damages is a misdemeanor (Pen. Code, § 594, subds. (a), (b)(2)(A)), but the gang allegation transforms it into a felony wobbler, punishable by one year in county jail or by imprisonment in state prison for one, two or three years (Pen. Code, § 186.22, subd. (d), count 1). The district attorney elected to file the vandalism charge as a felony.
The parties referred to a second petition in court and the probation officer's social study describes a second petition that was filed on August 4, 2018. The petition itself has not been included in the Clerk's Transcript.
On August 22, 2018, Cristian entered into a plea bargain in which he admitted having committed vandalism on behalf of a street gang (count 1), and in return, the remaining three charges were dismissed against him. The juvenile court declared Cristian a ward of the court and placed him under the supervision of the probation officer, with several conditions including a commitment to Breaking Cycles for a period not to exceed 150 days.
Facts
Cristian admitted that on March 16, 2018, he unlawfully and maliciously defaced with graffiti property belonging to the El Dorado II apartment complex. The estimated cost of the damage was less than $400. Cristian committed that act for the benefit of, at the direction of, or in association with a criminal street gang. The record contains no facts describing Cristian's alleged possession of Xanax.
The probation study stated that on August 3, Cristian was in a car with three other people. This group traded insults with a husband and wife in another car, and the two cars drove on, swerving around each other in a reckless manner. Eventually Cristian and the other men in the car got out, ran and yelled at the husband and wife while throwing gang signs and making threatening comments such as, "We'll kick your ass" and "We'll shoot you fools!" while reaching into their waistbands as if to pull out guns.
DISCUSSION
We conditionally reverse the juvenile court's true findings and the associated dispositional order, with directions to the juvenile court to consider DEJ and to conduct further proceedings if Cristian is suitable, and to reinstate the adjudication findings and dispositional order if the court finds Cristian not suitable or if Cristian declines DEJ. We consider his objections to four conditions of his probation in case the juvenile court reinstates its findings and order of probation.
1. DEJ
"The DEJ provisions . . . provide that in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a section 602 petition and waive time for the pronouncement of judgment. Entry of judgment is deferred. After the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed. (§§ 791, subd. (a)(3); 793, subd. (c).)" (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558 (Martha C.).)
Before filing a petition alleging a felony offense, the prosecuting attorney must review the minor's file to determine if he is eligible for DEJ. There are seven criteria that must be met for eligibility for the DEJ program: (1) the minor has not previously been declared to be a ward for a felony offense; (2) the offense charged is not enumerated in section 707, subdivision (b); (3) there was no previous commitment to the Juvenile Facilities of the Department of Corrections and Rehabilitation; (4) the minor has not had probation revoked without being completed; (5) the minor is at least 14 years of age; (6) the minor is eligible for probation; and (7) the offense is not a specified sex crime. (§ 790, subds. (a)(1) - (7).) If the seven criteria have been met, the prosecutor must file a form with the petition so stating, and must provide this information to the minor and his attorney. (Id. at subd. (b); In re Luis B., (2006) 142 Cal.App.4th 1117, 1122 (Luis B.).) If the prosecutor determines that the minor is not eligible for DEJ, the prosecutor must inform the court, the minor and the minor's attorney. (Cal. Rules of Court, rule 5.800(e); Luis B. at p. 1122.) The juvenile court has the ultimate discretion to rule on the suitability of the minor for DEJ. (§ 791, subd. (b); Luis B., at p. 1123; Martha C., supra, 108 Cal.App.4th at p. 562.)
The Legislature intended consideration of DEJ to be mandatory for minors who were first-time felony offenders when the felonies did not fall among the serious crimes enumerated in section 707, subdivision (b). (Luis B., supra, 142 Cal.App.4th at p. 1123.) Cristian was eligible for DEJ when the first petition was filed, and when the supplemental criminal threat charges were added in a second petition, because he had not been declared a ward for a felony offense. There is nothing in the record that indicates the juvenile court considered DEJ here. Cristian's attorney stated that he had been working on a prefiling disposition for Cristian under section 654 before Cristian committed additional crimes on August 3, 2018 and that he tried to work out "a scope offer" with the prosecutor, but there was no mention of DEJ by the prosecutor, defense attorney or juvenile court, and no applicable form indicating DEJ consideration in the record.
Section 654 permits a probation officer to make a prefiling offer of supervision programs.
We therefore conditionally reverse the juvenile court's adjudication and dispositional order and remand with directions to the juvenile court to consider Cristian's eligibility and suitability for DEJ, and to commence DEJ proceedings if he is eligible, suitable and agreeable. Otherwise, if Cristian is deemed ineligible or unsuitable for DEJ, or if he chooses to forego that option, the court's dispositional order shall be reinstated. (Luis B., supra, 142 Cal.App.4th at p. 1123.)
2. Conditions of Probation
Cristian also contends that the conditions of his probation requiring the submission of electronics to search and the submission of social media passwords are (1) invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), and (2) unconstitutionally overbroad. He also challenges the probation conditions prohibiting him from knowingly possessing utensils used for graffiti purposes, and utensils that can be used for graffiti purposes, as unconstitutionally vague and overbroad, and the imposition of the minimum mandatory restitution fine.
A. Background
The probation department recommended a number of probation conditions. Defense counsel asked the court to follow the probation recommendations, except for ordering Cristian's parents to take a parenting class, and Cristian agreed to abide by the proposed terms and conditions.
The prosecutor asked the court to add to the conditions of probation a Fourth Amendment waiver to search Cristian's electronic devices. She explained that, "Given . . . how the gangs are evolving, social media is now their biggest platform by which they communicate, interact with gang members where they post pictures of weapons and firearms." An electronic search waiver would assist the probation officer and law enforcement in supervising Cristian. Defense counsel objected to the waiver because there was no nexus to the crime. The juvenile court found there was a nexus because Cristian admitted a gang affiliation. Electronic devices provided a known means of communication for gang members. The probation officer needed to carefully monitor Cristian's behavior and access to his electronic devices was necessary to ensure that he was not communicating with other gang members. The court added the electronic search waiver as a condition of probation.
B. Applicable Legal Principles and Standard of Review
The court may impose on a juvenile 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." (§ 730, subd. (b).) The juvenile court has broader discretion over juveniles than superior courts have over adults because juveniles are " 'more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed.' " (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) " ' " '[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.' " ' " (Ibid.) "In fashioning the conditions of probation, the juvenile court should consider the minor's entire social history in addition to the circumstances of the crime." (In re Walter P. (2009) 170 Cal.App.4th 95, 100.)
1. Reasonableness
The juvenile court's discretion regarding probation is not unlimited. (See Erica R. (2015) 240 Cal.App.4th 907, 912; accord, In re P.O. (2016) 246 Cal.App.4th 288, 294 (P.O.) [noting each juvenile probation condition must fit both the circumstances and the minor].) A juvenile probation condition is invalid if 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.' " (Lent, supra, 15 Cal.3d at p. 486.) All three prongs of the Lent test must be satisfied for the court to invalidate a probation condition. (People v. Olguin (2008) 45 Cal.4th 375, 379.) Thus, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at p. 380.) An objection under Lent is forfeited if not raised in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 234-235.)
2. Constitutionality
A probation condition may be "unconstitutionally overbroad if it imposes limitations on the probationer's constitutional rights and it is not closely or narrowly tailored and reasonably related to the compelling state interest in reformation and rehabilitation." (People v. Forrest (2015) 237 Cal.App.4th 1074, 1080.) As explained in People v. Barajas (2011) 198 Cal.App.4th 748, the constitutional overbreadth doctrine applied to probation conditions is different from the federal doctrine applied to criminal statutes. The federal overbreadth doctrine is concerned with a statute's restriction on the rights of third parties, and particularly their rights to free speech under the First Amendment. The state's overbreadth concern about probation conditions is undue restriction of the probationer's constitutional rights and is not limited to free speech. (Id. at p. 754, fn. 4.) Conditions that infringe on constitutional rights may be unconstitutionally overbroad if not tailored specifically to meet the needs of the probationer. (P.O., supra, 246 Cal.App.4th at p. 297.)
The constitutional void-for-vagueness doctrine, "which derives from the due process concept of fair warning, bars the government from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citations.] . . . Thus, a probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' [Citation.]" (People v. Hall (2017) 2 Cal.5th 494, 501 (Hall).) A court looks to the body of applicable law and judicial construction of similar provisions to assess if a condition is sufficiently definite. (Id. at p. 500.) The law implies a mens rea requirement in conditions that otherwise lack one to give reasonable and practical construction to the condition's language. (Id. at pp. 498, 503.)
We have the discretion to consider a facial challenge to the constitutionality of a condition that raises a pure issue of law even when the defendant failed to object in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 885.)
We generally review a constitutional challenge to probation conditions de novo and we review the reasonableness of conditions for an abuse of discretion. (P.O., supra, 246 Cal.App.4th at pp. 294, 297.)
C. The Electronic Search Condition is Invalid Under Lent
The electronic search probation condition stated: "The minor's 4th Amendment waiver extends to any electronic device, such as a computer, electronic notepad, or cell phone, which the minor uses or to which the minor has access. The minor's 4th Amendment waiver also extends to any remote storage of any files or data which the minor knowingly uses or to which the minor has access. The minor agrees to submit to a search of any electronic device, such as a computer, electronic notepad, or cell phone, at any time without a warrant by any law enforcement officer, including a probation officer."
The electronic search condition is invalid under Lent because there is no specific information that Cristian used electronic devices either in committing any of his crimes or in communicating with other gang members for the purpose of committing crimes, and the burden that the electronic search condition imposes on Cristian's right to privacy "is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (In re Ricardo P. (2019) 7 Cal.5th 1113, 1119 (Ricardo P.).) Cristian did not use a cell phone or other device to commit the charged crimes of vandalism, possession of a controlled substance, or criminal threats. He admitted that he vandalized property for the benefit of, in association with or at the direction of a gang, but the record does not contain any evidence that an electronic device was used to facilitate the crimes or to communicate with other gang members. The only reason for the condition was a general tendency for gang members to communicate by electronic devices. This tendency to communicate by cellphone is now common for all adults and juveniles; it is not unique to gang members. Further, there was no indication that Cristian owned any electronic devices or that he posted pictures of the vandalism. As in Ricardo P., the supposition that gang members communicate by cell phones or other electronic devices is too general to support an open-ended search of Cristian's communications, photographs, videos, search histories, and other private data that he might store on an electronic device. (Id. at p. 1119.) The trial court abused its discretion under Lent by imposing the electronics search condition. We strike that condition and need not consider its constitutionality.
D. Graffiti Utensils
The graffiti utensil probation conditions state: "The minor shall not knowingly possess spray paint cans, colored markers, glue sticks, pens, etching tools, aerosol cans, or other paraphernalia used for graffiti purposes. [¶] The minor shall not knowingly possess any utensils which can be used for graffiti or vandalizing any property including but not limited to spray paint, etching tools, or marking pens, unless under the supervision of a parent, teacher or adult mentor."
Cristian contends that these probation conditions that prohibit him from knowingly possessing items used for graffiti purposes or that can be used for graffiti purposes are unconstitutionally vague and overbroad. Pursuant to Hall, supra, 2 Cal.5th at page 501, these probation conditions, interpreted reasonably and practically, apply only when marking or writing utensils are possessed with the intent to commit the criminal act of vandalism. The conditions are constitutionally sound because they imply a mens rea requirement. (Ibid.)
The Supreme Court granted review in Hall to settle a division within the Courts of Appeal whether probation conditions implicitly contain a mens rea requirement, giving the defendant fair notice of the conduct required, or whether a mens rea requirement must be specifically added. (Hall, supra, 2 Cal.5th at pp. 497-498.) The probation conditions at issue in Hall prohibited owning, possessing, or controlling any firearm, illegal drugs, narcotics, or narcotics paraphernalia, but failed to specify that a violation of the condition required knowledge of the contraband's presence and its restricted nature. (Id. at p. 498.) The Supreme Court found the conditions constitutional. The law implies a mens rea or criminal intent requirement in conditions that otherwise lack one, because a probation condition can be violated only when there is proof that the violation was willful. (Id. at p. 500.) A violation of a probation condition, like commission of a crime, requires a culpable mental state, that is, a union of act and either wrongful intent or criminal negligence. (People v. King (2006) 38 Cal.4th 617, 622-623, Pen. Code, § 20.) In the context of possession of items that are otherwise lawful, "revocation can be justified where the probationer knows of the contraband's presence and its restricted character because of what possession in such circumstances is understood to convey about an individual's plans or potential for further criminal activity, the probability of success of such activity if attempted, and the risks associated with such activity." (Hall, at p. 499, emphasis added.) The Supreme Court concluded that probation conditions implicitly require a criminal state of mind, or mens rea, and there is no need to modify conditions to explicitly add that requirement. (Id. at p. 503.)
Penal Code section 20 provides: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence."
The graffiti utensil conditions here include an implicit mens rea requirement that necessarily includes or implies the intent that the implement be used for graffiti purposes. (Hall, at p. 499.) The constitution requires only that probation conditions be written with areasonable degree of certainty." ' " (Hall, supra, 2 Cal.5th at p. 503.) Absolute clarity is not required. (Ibid.) The graffiti utensil probation conditions implicitly contain a requirement that the items be possessed with the intent of committing crimes, and as such, are constitutional.
E. No Error in Imposing Fine
The juvenile court imposed a restitution fine in the amount of $100 on Cristian and his parents, the minimum amount of a restitution fine for one who has been found to have committed a felony offense, pursuant to section 730.6. The court also imposed a discretionary fine of $126 pursuant to section 730.5, but Cristian has not objected to this discretionary fine on appeal.
Section 730.6 provides in part:
"(b) If a minor is found to be a person described in Section 602, the court shall impose a separate and additional restitution fine. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense as follows:
(1) If the minor is found to be a person described in Section 602 by reason of the commission of one or more felony offenses, the restitution fine shall not be less than one hundred dollars ($100) and not more than one thousand dollars ($1,000). A separate hearing for the fine shall not be required." (Emphasis added.)
Section 730.5 provides in part: "When a minor is adjudged a ward of the court . . . the court may levy a fine against the minor up to the amount that could be imposed on an adult for the same offense, if the court finds that the minor has the financial ability to pay the fine. (Emphasis added.)
Cristian contends that the juvenile court denied his due process right by imposing the mandatory restitution fine of $100 without determining his ability to pay, under the rationale of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We conclude that the court implicitly found that the minor had the financial ability to pay this fine and the record supports this finding.
The petition and notice of hearing both gave notice that Cristian and his parents could be financially liable for the costs of Cristian's offenses. Cristian and his parents both said in court that they were aware of the potential financial liability. Both parents worked. Cristian's father said the family's finances were "not too good, not too bad." The probation officer determined that the family had enough resources to justify a fine. Defense counsel asked the court to impose the conditions proposed by the probation department, which included the fine, and Cristian agreed to abide by the proposed terms and conditions. The juvenile court adopted the finding of the probation officer that Cristian had the financial ability to pay the discretionary fine of $126 (§ 730.5). Section 730.5 expressly requires the court to find that the minor has the financial ability to pay this discretionary fine before imposing it. That finding is sufficient to determine that Cristian had the financial ability to also pay the restitution fine, as the court implicitly found. No separate hearing was required and an express finding was not required. No error occurred.
DISPOSITION
We conditionally reverse the juvenile court's findings and dispositional order and remand to the juvenile court for further proceedings in accordance with section 790 et seq. We direct the juvenile court to consider Cristian's eligibility and suitability for DEJ based on the record as it existed at the start of the August 22, 2018 adjudication hearing. If the juvenile court finds Cristian was suitable and eligible for DEJ, and if Cristian agrees to that program, we direct the juvenile court to enter an order vacating its prior adjudication and dispositional orders and to proceed with DEJ. If Cristian is found unsuitable for DEJ or if Cristian rejects that option, the juvenile court shall reinstate the adjudication and dispositional orders challenged in this appeal, except for the electronics search condition, which we strike. Cristian shall retain the right to have a denial of DEJ reviewed on appeal.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.