Opinion
A153093
07-03-2018
In re D.Y., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.Y., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00221)
Appellant D.Y. appeals after the juvenile court sustained an allegation in a supplemental juvenile wardship petition that he had violated a condition of probation by failing to fully charge his ankle monitor. On appeal, he contends (1) substantial evidence does not support the juvenile court's finding that he willfully neglected to charge the ankle monitor, and (2) the ankle monitor charging condition is unconstitutionally vague. We shall affirm the juvenile court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
On February 23, 2017, a juvenile wardship petition was filed, pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that appellant, then age 17, had committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), & 664—count 1).
At the March 13, 2017 jurisdictional hearing, the court granted the prosecution's motion to amend the petition to add a second allegation, dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)—count 2). Appellant pleaded no contest to count 2 in exchange for dismissal of count 1, and the court released him on home supervision with an ankle monitor pending the dispositional hearing. The court explained to appellant, "today when you're released, you're going to have the ankle monitor be placed on your ankle. And the probation officers will go over all the rules and regulations of home supervision with you and Mom . . . ."
At the April 10, 2017 dispositional hearing, the court adjudged appellant a ward of the court and placed him on 60-day home supervision with an ankle monitor, under the Juvenile Electronic Monitoring program, and imposed various terms of probation, including that appellant was not to use illegal drugs or be on a school campus unless enrolled. The court further advised him that he "must obey all the rules and regulations of the [monitoring] program." On June 8, appellant successfully completed the 60 days of ankle monitoring, and the device was removed.
On September 5, 2017, the probation department filed a notice of probation violation pursuant to Welfare and Institutions Code section 777, alleging that appellant had violated his probation by using THC, as reflected in an August 29 positive test result.
At the September 25, 2017 hearing on the alleged probation violation based on the positive drug test, appellant was placed on home supervision with an ankle monitor for the third time. Appellant signed a "Home Supervision Contract," which provided, inter alia, "G. Charging the Electronic Monitoring Equipment (GPS) . . . [¶] 1. The GPS unit must be charged for two continuous hours each day, or until the GPS unit gives you an audible alert 'battery charged,' indicating that the battery is fully charged. You will be provided with a charging cord and shown how to use it. Your failure to charge the GPS unit is a violation of the program and may result in your arrest and a return to court."
On September 26, 2017, one day after he was placed on home supervision with an ankle monitor, appellant was arrested for a theft that took place at a high school in Antioch, which was not appellant's school. Because appellant had failed to fully charge his ankle monitor, his whereabouts were unknown for five hours that day, including at the time of the theft.
On October 2, 2017, the probation department filed another notice of probation violation, alleging that appellant had violated his probation on September 26 by (1) failing to fully charge his ankle monitor, as a result of which his whereabouts were unknown between 11:17 a.m. and 4:17 p.m., and (2) committing a theft from a person at a high school in Antioch.
On October 3, 2017, the juvenile court denied appellant's request to be released on home supervision and ordered him detained in juvenile hall pending the next hearing.
On October 12, 2017, a supplemental wardship petition was filed, alleging that appellant had committed petty theft (Pen. Code, § 490.2). At the trial setting for the contested jurisdictional hearing on the supplemental petition and the probation violation allegation, defense counsel argued for the first time that the instructions regarding charging the ankle monitor were "vague and ambiguous and overbroad" because they did not provide a specific charging schedule. Counsel asked the court to place appellant "back into the community on the GPS charging device this time with clear instructions that the device should be charged between the hours of 6 a.m. and 8 a.m. in the morning and 6 p.m. and 8 p.m. in the evening, and that way the device will remain charged and his whereabouts will be known to Probation at all times." The court expressed its belief that the instructions were clear and found it inappropriate to release him again on an ankle monitor, "particularly in view of the supplemental petition that has just been filed."
At the November 1, 2017 contested hearing on the petty theft allegation and the probation violation allegation, the following evidence was presented. D.M., a high school student in Antioch, testified that around 2:10 p.m. on September 26, 2017, he was in the boys' locker room at his school, preparing to change into his gym clothes, when he felt his wallet being removed from his right rear pants pocket. D.M. turned around and saw a person right behind him. At the hearing, he identified appellant as that person. D.M. started chasing appellant, who was running away, but could not catch him. He therefore told his gym teacher what had happened; the teacher locked the doors and called security. D.M., who had never seen appellant before that day, saw him inside the locker room and pointed him out to the teacher. D.M.'s wallet contained cash, his school identification, and his house key.
D.M. subsequently identified appellant in a photo lineup. The wallet was never located.
Appellant testified that on September 26, 2017, he attended continuation school. After school ended that day, around 11:15 a.m., he went to the store and then to a bus stop that was across the street from D.M.'s high school. He had to use the bathroom and therefore went into the boys' locker room at D.M.'s school to use the bathroom at that location. Inside the locker room, he first ran into a friend and then went into the bathroom, where he remained for 10 or 15 minutes. When he came out of the bathroom, D.M accused him of stealing a wallet; a teacher and a security guard also confronted him. He was searched, but no wallet was found. Appellant denied taking the wallet.
Appellant also testified about the ankle monitor, which "died" while he was at school that day. The only instruction he had received about charging the ankle monitor was "to charge it when it was done, like [an] hour a day." Appellant acknowledged signing a document on September 25, 2107, regarding his home supervision equipment; the paragraph above the signature stated that he had read and understood the rules contained in the document. He did not in fact have a chance to read the document before signing it. Nor did the probation officer go over it with him. He did know that he was supposed to keep the ankle monitor charged, but was not told to charge it at a certain time.
When appellant left for school on September 26, the unit was "halfway charged." He had gone to sleep with the charger on the ankle monitor, but he was "a rough sleeper" and the charger must have come off while he was asleep. The only way he could know that the ankle monitor needed charging was through a warning light on the monitor. The warning light kept blinking all day while he was at school, but he did not have his charger with him and could not charge it. He did not bring his charger to school because his school did not allow students to bring backpacks.
At the conclusion of the hearing, the court found true the petty theft allegation and further found by a preponderance of the evidence that appellant "did fail to fully charge his ankle monitor and his whereabouts were unknown between 11:17 a.m. and 4:17 p.m. because the ankle monitor was not working." The court dismissed the earlier probation violation allegation that was based on appellant's positive drug test.
At the November 15, 2017 dispositional hearing, the court continued appellant as a ward of the court and committed him to the Orrin Allen Youth Rehabilitation Facility (OAYRF) for a six-month regular program, with a 180-day aftercare period.
Also on November 15, 2017, appellant filed a notice of appeal.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends substantial evidence does not support the court's finding that he willfully neglected to charge his ankle monitor.
In a probation revocation proceeding, the trial court has broad discretion to determine whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) Nonetheless, the "court may not revoke probation unless the evidence supports 'a conclusion [that] the probationer's conduct constituted a willful violation of the terms and conditions of probation.' (People v. Galvan (2007) 155 Cal.App.4th 978, 982.) Where a probationer is unable to comply with a probation condition because of circumstances beyond his or her control and defendant's conduct was not contumacious, revoking probation and imposing a prison term are reversible error. (People v. Zaring (1992) 8 Cal.App.4th 362, 379.)" (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.)
Welfare and Institutions Code "section 777[, subdivision] (c) now contains the same preponderance of the evidence standard used to prove probation violations in adult revocation proceedings, including those based on criminal acts. [Citations.]" (In re Eddie M. (2003) 31 Cal.4th 480, 501; see People v. Rodriguez, supra, 51 Cal.3d at p. 441.)
The court's finding of a probation violation will be upheld on appeal if it is supported by substantial evidence. (People v. Kurey (2001) 88 Cal.App.4th 840, 848 (Kurey).) Hence, "our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (Id. at pp. 848-849, fns. omitted.)
In the present case, appellant argues that the only evidence presented regarding the willfulness of his violation—his testimony that the charger detached from the ankle monitor during the night and he could not bring the charger to school with him—shows that the probation violation was accidental, not intentional. According to appellant, respondent's claim that he purposely did not charge the monitor to prevent the probation department from knowing he was planning to violate probation is based on speculation.
We find, contrary to appellant's claim, that a great deal of evidence was presented at the hearing from which the court could infer that appellant's probation violation was willful. First, despite his claim that he did not receive sufficiently detailed instruction on how and when to charge the ankle monitor, the evidence shows that he had successfully completed more than 60 days of ankle monitoring shortly before the current violation. The evidence also shows that the day he had failed, for the first time, to properly charge the monitor, appellant did not inform high school staff or his probation officer of his predicament. Instead, he went to a school he did not attend—itself a probation violation—during the hours he could not be monitored and stole a wallet from a student's pocket. Plainly, the court was not required to believe this was all a coincidence or to credit appellant's testimony that the failure to charge the ankle monitor was accidental. (See Kurey, supra, 88 Cal.App.4th at pp. 848-849.)
Appellant's reliance on Zaring and Galvan is misplaced. In People v. Zaring, supra, 8 Cal.App.4th 362, the uncontroverted evidence showed that the defendant's arrival at court 22 minutes late—a probation violation—was not willful, but instead was a result of her being "confronted with a last minute unforeseen circumstance as well as a parental responsibility common to virtually every family." (Id. at p. 379.) In People v. Galvan, supra, 155 Cal.App.4th 978, the appellate court held that the defendant's failure to report to probation within 24 hours of his release from custody was not willful where it was caused by his immediate deportation by the federal government. (Id. at p. 983.) Here, on the other hand, the court reasonably found appellant's testimony less credible than the evidence that demonstrated the willfulness of his probation violation. (See Kurey, supra, 88 Cal.App.4th at pp. 848-849.)
II. Vagueness Challenge
Appellant contends the condition of probation requiring that he charge his ankle monitor "for two continuous hours each day" or "until the GPS unit gives you an audible alert . . . indicating that the battery is fully charged" is vague and ambiguous, in violation of his due process rights, because "the condition fails to specify whether 'each day' refers to the daylight hours between one night and the next, or whether it refers to each 24-hour period."
Respondent argues that this issue is moot because, once the court detained appellant in juvenile hall and then committed him to OAYRF, he was no longer subject to the ankle monitoring condition. Appellant counters that the issue is not moot because, following his six-month commitment to OAYRF, he is subject to a six-month aftercare period, during which he will be subject to probationary obligations, which could include ankle monitoring.
We agree with respondent and find that the vagueness challenge to the ankle monitoring condition became moot once appellant's probation was terminated and he was committed to OAYRF, at which point he was no longer subject to that condition. (See, e.g., In re Erica R. (2015) 240 Cal.App.4th 907, 911 [challenge to probation condition moot where minor was no longer subject to that condition]; In re R.V. (2009) 171 Cal.App.4th 239, 245 [appeal of probation condition was moot where minor had since been sent to a boys' camp and was no longer on probation subject to disputed condition].) We therefore decline to address appellant's vagueness challenge.
Although the courts in both Erica R. and In re R.V. nonetheless exercised their discretion to address the claim raised due to it involving a matter of continuing public interest that was likely to recur, we do not believe that such review of appellant's moot claim is warranted in the circumstances of this case. (See In re Erica R., supra, 240 Cal.App.4th at p. 911; In re R.V., supra, 171 Cal.App.4th at p. 245.) Moreover, appellant's assertion that he could again be subject to the ankle monitoring condition in the future while he is on aftercare does not change our finding that the issue is moot. Should appellant again become subject to this condition of probation in the future, he may challenge it then in a timely manner.
We also observe, as respondent points out, that appellant forfeited this issue by failing to object to the ankle monitoring condition on any of the three occasions it was imposed, raising it only after he was detained in juvenile hall and the condition no longer was in force. (But see In re Sheena K. (2007) 40 Cal.4th 875, 887 & fn. 7 [appellate court may exercise its discretion to hear a constitutional claim that presents a pure question of law despite its finding that rule of forfeiture applies].)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.