Opinion
F073372
03-29-2017
In re D.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.D., Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 513613)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Valli K. Israels, Judge. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Kane, Acting P.J., Franson, J., and Smith, J.
-ooOoo-
Appellant D.D., a minor, appeals from the juvenile court's dispositional order following a true finding to a petition filed under Welfare and Institutions Code section 602 alleging appellant committed a robbery (Pen. Code, § 211). Appellant contends one of the conditions of his probation, limiting his right to leave Stanislaus County, is facially overbroad. Alternatively, appellant contends he received ineffective assistance of counsel when his counsel failed to object to the contested term. For the reasons set forth below, we affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant's current appeal follows from a series of petitions relating to his conduct. On May 13, 2014, appellant, who was then 16 years old, was declared a ward of the court (Welf. & Inst. Code, § 602) after the juvenile court found he had committed first degree burglary (§ 459). The court placed appellant under the supervision of a probation officer and committed him to juvenile hall for 60 days, including 15 days on electronic monitoring. One of the general terms of appellant's probation was that he "not leave Stanislaus County without the permission of the Probation Officer and immediately notify the Probation Officer of any change of address within 24 hours."
On December 11, 2014, a probation violation petition (Welf. & Inst. Code, § 777, subd. (a)(2)) was filed, alleging appellant stole a bottle of alcohol and tested positive for marijuana use. The juvenile court found the allegations true, continued appellant as a ward of the court, and committed him to juvenile hall for 45 days, including 30 days on electronic monitoring.
On October 30, 2015, the wardship petition leading to the contested dispositional order was filed, alleging appellant committed a robbery. On February 2, 2016, following a contested hearing, the juvenile court found the allegation true, continued appellant as a ward of the court, and on February 24, 2016, committed him to juvenile hall for 365 days, including 45 days on electronic monitoring. Appellant's disposition included several probation conditions, including the following standard travel condition (this condition did not require a checked box and had been part of appellant's initial disposition order from the May 13, 2014, disposition), "Do not leave Stanislaus County without the permission of the Probation Officer and immediately notify the Probation Officer of any change of address within 24 hours." No objection was raised to this condition.
The juvenile court orally pronounced the same conditions, stating "Do not leave Stanislaus County without permission of probation. [¶] Immediately notify probation of any change of address within 24 hours." --------
This appeal timely followed.
DISCUSSION
Appellant argues the juvenile court abused its discretion by imposing a facially overbroad restriction on appellant's right to travel. Alternatively, appellant contends he received ineffective assistance of counsel when no objection was raised to the travel restriction. Standards of Review and Applicable Law
Under Welfare and Institutions Code section 730, subdivision (b), when placing a juvenile in the care of a probation officer, the juvenile 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." We review the imposition of such probation conditions for an abuse of discretion. (In re Erica R. (2015) 240 Cal.App.4th 907, 912.) In conducting this review, we keep in mind that " '[t]he permissible scope of discretion in formulating terms of juvenile probation is even greater than allowed for adults . . . 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." ' " (Ibid., citing In re Victor L. (2010) 182 Cal.App.4th 902, 909-910.)
"A claim of ineffective assistance of counsel presents a mixed question of fact and law, which is generally subject to de novo review, especially where constitutional rights are implicated." (In re Alcox (2006) 137 Cal.App.4th 657, 664-665.) Appellant's Facial Challenge to the Travel Restriction Fails
Through his arguments, appellant concedes he has forfeited an as applied challenge to the imposition of the contested probation term, relying instead on a claim of ineffective assistance of counsel based on the forfeiture of that claim. However, appellant continues to allege the term is facially overbroad. Such challenges may proceed despite the lack of an objection because resolution does "not require scrutiny of individual facts and circumstances," and the challenge, thus, presents a pure question of legal error that is not subject to forfeiture. (In re Sheena K. (2007) 40 Cal.4th 875, 885.)
In support of this facial challenge, appellant contends travel provisions, restricting one to the county in which they reside absent permission from probation to leave, are overbroad because excessive authority is placed with the probation officer to determine the scope of the restriction. We do not agree. As an initial matter, "[i]mposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release." (People v. Moran (2016) 1 Cal.5th 398, 406 (Moran).) Indeed, despite being frequently subjected to as applied challenges regarding the proper scope, the imposition of a travel restriction subject to permission being granted by probation is regularly upheld. (See In re Daniel R. (2006) 144 Cal.App.4th 1, 8 [ultimately authorizing restriction on travel to Mexico subject to case-by-case approval by probation]; In re Antonio R. (2000) 78 Cal.App.4th 937, 941-942 [upholding travel restriction to Los Angeles County absent permission from either probation or parental participation].) As such, the bare imposition of a travel restriction is not a facial violation of a probationers' right to travel. (Moran, supra, 1 Cal.5th at p. 406 ["Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible."].) And, as noted, at least one court has provided that a travel restriction requiring both supervision by an adult during travel and express permission from the probation officer to conduct the travel would be constitutionally sound under an as applied challenge. (In re Daniel R., supra, 144 Cal.App.4th at p. 8.) Thus, there is nothing facially inappropriate about the contested restriction. To the extent appellant contends restricting his movements to within Stanislaus County and with the express permission of probation is inappropriate, the case law shows such determinations require consideration of the nature of appellant's criminal conduct and the need to prevent future criminality, an argument appellant forfeited. (See People v. Olguin (2008) 45 Cal.4th 375, 379 [identifying relevant factors to include the relationship to the crime committed, whether the conduct prevented is itself criminal, and whether the forbidden conduct is reasonable related to future criminality].) Appellant Cannot Show Ineffective Assistance of Counsel on this Record
Appellant further contends that counsel's forfeiture of an as applied challenge through the failure to object to the probation term demonstrates appellant received ineffective assistance of counsel in this case. On the current record, we do not agree.
To establish ineffective assistance of counsel, appellant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
" 'Tactical errors are generally not deemed reversible; and counsel's decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." ' " (People v. Hart (1999) 20 Cal.4th 546, 623-624.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)
In this case, the record does not reflect why trial counsel failed to object to the proposed probation term. Moreover, we recognize there could be a satisfactory reason for not objecting. As noted previously, the present case is part of a series of wardship proceedings that began in May 2014. In the initial wardship proceedings, appellant was ordered to comply with the same travel restriction currently contested. Thus, when considering the probation conditions in the present proceedings, appellant's counsel could have determined an objection would be futile given the fact appellant was already subject to the contested provision or could have concluded the restriction was immaterial and not worth objecting to, given appellant's past compliance. On such a record, it is not proper to infer that counsel's conduct was deficient.
DISPOSITION
The order is affirmed.