Opinion
H046236
09-09-2019
In re K.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. J23332C)
K.L. (the minor) appeals the July 31, 2018 dispositional order of the juvenile court continuing him as a ward of the court (Welf. & Inst. Code, § 602) and, among other things, reinstating all prior probation terms and conditions, including the condition that the minor not knowingly use, possess, or display sexual images. The juvenile court added a probation condition directing K.L. not to access the Internet "for sexual images or pornography."
Unspecified statutory references are to the Welfare and Institutions Code.
On appeal, K.L. challenges the 2018 disposition order, claiming that the probation conditions referencing "sexual images" are vague and overbroad, and asks that we overturn the finding that he violated his probation by possessing such images. The Attorney General disagrees that the probation conditions are improper and further argues that the 2017 disposition order, which initially imposed the probation condition K.L. was found to have violated, is not properly before this court.
We conclude that we do not have jurisdiction to address K.L.'s arguments regarding the probation condition imposed in the 2017 disposition. With regard to the 2018 disposition order, we agree that the phrase "sexual images" is unconstitutionally vague and will remand the matter so that the juvenile court may modify the probation conditions to define more precisely the material K.L. should be prohibited from accessing on the Internet or knowingly using, possessing or displaying.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. 2014 disposition on Petition A
K.L. was initially declared a ward of the court in October 2014 after he admitted one count of unlawful possession of a knife (Pen. Code, § 626.10, subd. (a)) and one count of sexual battery (Pen. Code, § 243.4, subd. (d)). The juvenile court determined that each of these offenses were felonies and set K.L.'s maximum term of confinement at four years eight months.
K.L. admitted these two offenses as part of a negotiated disposition, pursuant to which the remaining three counts alleged in the juvenile wardship petition (Petition A) would be dismissed. The three dismissed counts alleged that K.L. committed felony unlawful sexual intercourse (Pen. Code, § 261, subd. (a)(2)), felony unlawful oral copulation (former Pen. Code, § 288a, subd. (c)(2)), and misdemeanor unlawful possession of marijuana (former Health & Saf. Code, § 11357, subd. (e)).
At disposition, the juvenile court placed K.L. on probation, with various terms and conditions, including that he serve 29 days in juvenile hall (with 29 days credit for time served), abstain from using drugs and alcohol, participate in the "Wrap Around" program, write a letter of apology to the sexual battery victim, and complete a juvenile sex offender treatment program.
B. 2015 disposition on Petition B
In July 2015, K.L. admitted the allegation in a new juvenile wardship petition (Petition B) that he committed felony sexual penetration of an unconscious person (Pen. Code, § 289, subd. (e)) as part of a negotiated disposition in exchange for dismissal of three other charges, specifically felony sexual intercourse with an unconscious person (Pen. Code, § 261, subd. (a)(4)), felony assault with intent to commit rape, sodomy, and oral copulation (Pen. Code, § 220), and misdemeanor possession of alcohol as a minor (Bus. & Prof. Code, § 25662, subd. (a)).
At the August 2015 dispositional hearing, the juvenile court continued K.L. as a ward of the court, ordered him removed from the custody of his parents, and placed him in the care, custody and control of the probation officer. The juvenile court determined K.L.'s maximum term of confinement at nine years, four months. The court further directed the probation department to find a suitable 24-hour placement, ordered K.L. to serve 41 days in juvenile hall (with 41 days of credit for time served), and write a letter of apology to his victim. K.L. was subsequently placed in the "Success in Recovery Program," a residential juvenile sexual offender program.
C. 2017 probation violation
In August 2017, K.L. admitted violating his probation due to his termination from the Success in Recovery Program. The termination report from Success in Recovery noted that K.L. had made "little or no progress in the program." K.L.'s journal entries included "sexually explicit content and sexually inappropriate pictures . . . [and] his disregard for rules in general is of great concern." The report recommended that K.L. "be placed in a higher structured facility and be monitored closely. His sexual fantasies continue to consist of rape and drug use which has not changed throughout his program, at times he just appears better at hiding it."
At the October 2017 dispositional hearing, the juvenile court ordered K.L. to serve 350 days in juvenile hall (with 74 days of credit for time served) and participate in a juvenile sex offender program. The court also ordered K.L. to continue to obey various probation conditions, including a condition that he "Not Knowingly Use, Possess or Display; sexual images." K.L.'s counsel did not object to this probation condition.
Prior to the dispositional hearing, the probation department informed the court that K.L. was the subject of several incident reports after he arrived at juvenile hall on August 1, 2017. In an August 10, 2017 incident report, the staff member noted that he "stumbled upon a stash of [110] cut-out pictures of different women . . . in bikinis, yoga poses, pregnant women, cut outs of legs, and women wearing dresses" during a routine search of K.L.'s room. In a September 1, 2017 incident report, the staff member found approximately 69 images of women in swimwear, underwear, or exercise attire torn out of various magazines and hidden in a magazine in K.L.'s room.
D. 2018 probation violation
In a June 11, 2018 progress report, the probation department advised the juvenile court that it was arranging for the "Hope Program" to assess K.L. for treatment. Given that K.L.'s commitment was due to expire on July 16, 2018, the juvenile court requested at the June 19, 2018 transition hearing that the Hope Program expedite its assessment and provide an update to the court by June 29.
On June 27, 2018, the probation department provided the court with an e-mail from the Hope Program therapist. In this e-mail, the therapist recommended that K.L. "not be released into the community at this time." She noted: "[K.L.] continues to present with significant risk for sexual reoffense, general criminal recidivism and substance abuse relapse. He was guarded during the initial interview, continues to blame the victims in both of his offenses, denies sexual contact with the other young woman involved in his second offense, denies the compulsive masturbation and deviant fantasies reported by Success in Recovery and significantly minimizes his sexually problematic behaviors in both his residential program and during his time at Juvenile Hall. [¶] [K.L.] would benefit from an intensive sex offender treatment program while residing in a structured, contained environment. The paperwork . . . indicates that he has been rejected from several residential treatment programs. If a residential program can't be found, in my experience the next best option would be for [K.L.] to remain detained (e.g., JJC or county jail) and attend sex offender treatment daily."
On June 28, 2018, the Santa Cruz County district attorney filed a petition under section 777, subdivision (a) (Petition C), alleging that K.L. violated the terms and conditions of his probation by (1) failing to complete a juvenile sex offender treatment program as ordered; and (2) possessing sexual images on 11 different dates: October 15, 2017, December 6, 2017, December 23, 2017, January 8, 2018, January 12, 2018, January 30, 2018, February 21, 2018, March 22, 2018, March 24, 2018, April 21, 2018, and June 13, 2018. In connection with the petition, the probation department filed a case referral for K.L. and a detention report. A number of incident reports were attached to the case referral, documenting the occasions on which pictures of women which K.L. had cut or torn out of magazines were found secreted in his personal belongings at juvenile hall.
Following the contested jurisdictional hearing on July 17, 2018, the juvenile court sustained the allegations that K.L. violated his probation by knowingly possessing sexual images on the dates listed in Petition C. However, the court found not true the allegation that K.L. violated his probation by failing to complete a juvenile sex offender treatment program.
At disposition, the juvenile court continued K.L. as a ward of the court (§ 602), and ordered that it would maintain jurisdiction over him until he reached 21 years of age. K.L. was committed to juvenile hall for 180 days (with 16 days of credit for time served), with all prior probation terms and conditions to remain in full force and effect, including the condition that K.L. not knowingly use, possess, or display sexual images. The court further ordered K.L. not to access the Internet "for sexual images or pornography," and directed him to complete the Hope Program for sex offender treatment. K.L.'s counsel objected to the probation condition prohibiting him from knowingly using, possessing or displaying sexual images on the ground the term "sexual images" is unconstitutionally vague.
K.L. timely appealed.
II. DISCUSSION
K.L. asks this court to reverse the juvenile court's July 17, 2018 order finding him in violation of probation "based on the possession of objectively nonsexual images," and to "strike the probation condition as to a prohibition against the possession of 'sexual images.' "
A. Scope of appeal
We conclude that K.L. is precluded from challenging the probation condition set forth in the 2017 disposition order, as well as the subsequent finding that he violated that probation condition, for two reasons. First, an appeal from the 2017 dispositional order is not timely. Second, K.L. failed to specify the 2017 dispositional order in his notice of appeal.
1. Timeliness
"A minor may appeal a judgment in a Welfare and Institutions Code section 601 or 602 proceeding 'in the same manner as any final judgment.' " (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138 (Shaun R.); § 800, subd. (a).) "The minor may also appeal any subsequent order in such proceedings 'as from an order after judgment.' " (Shaun R., supra, at p. 1138; § 800, subd. (a).) "An appeal in a juvenile case must generally be filed 'within 60 days after the rendition of the judgment or the making of the order being appealed.' " (Shaun R., supra, at p. 1138; Cal. Rules of Court, rule 8.406(a)(1).) " 'A timely notice of appeal, as a general matter, is "essential to appellate jurisdiction." ' " (Shaun R., supra, at p. 1138, quoting People v. Mendez (1999) 19 Cal.4th 1084, 1094.) The failure to take an appeal from an appealable order renders that order final and binding and it may not subsequently be attacked on an appeal from a later appealable order or judgment. (Shaun R., supra, at p. 1138.)
Here, the probation condition prohibiting the possession of "sexual images" was initially imposed as part of the disposition on Petition B on October 13, 2017. K.L. did not appeal from that dispositional order.
On June 18, 2018, the prosecution filed Petition C alleging that K.L. violated his probation, in part due to his possession of sexual images. The court made its disposition order on Petition C on July 31, 2018 and K.L. filed a notice of appeal from that order on September 28, 2018.
Because a dispositional order is an appealable order, the failure to file a timely appeal from it bars review of the earlier proceedings it entails in any subsequent appeal from a later juvenile court proceeding. (Shaun R., supra, 188 Cal.App.4th at pp. 1139, 1141.)
2. Notice of appeal
In addition, deficiencies in K.L.'s notice of appeal preclude us from addressing issues related to the 2017 disposition order. A notice of appeal is sufficient if it identifies the particular judgment or order being appealed. (Cal. Rules of Court, rule 8.405(a)(3).) K.L.'s September 28, 2018 notice of appeal lists only the separate case number for Petition C and states that K.L. "appeal[s] from the findings and orders of the court DISPOSITION 7/31/18." It does not mention the 2017 disposition order which initially imposed the probation condition which he was found to have violated.
In In re Melvin J., the court held that a minor, who appealed from a November 18, 1998 disposition order, was precluded from raising certain contentions relating to a prior disposition order entered in October 1998 from which no appeal was taken. (In re Melvin J. (2000) 81 Cal.App.4th 742, 746, disapproved of on another ground in John L. v. Superior Court (2004) 33 Cal.4th 158, 181, fn. 7.)
The notice of appeal in this case lists only the case number on Petition C and the July 31, 2018 disposition order. Even if an appeal from the 2017 disposition order were not time-barred, K.L. is also precluded from raising any issues related to that order in this appeal because he failed to list it in his notice of appeal.
B. The July 31, 2018 disposition order
We now address K.L.'s claims that the phrase "sexual images" as set forth in the probation conditions imposed in the July 31, 2018 disposition order are unconstitutionally vague and overbroad.
1. Applicable legal principles and standard of review
"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.' " ' " (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) Although the ultimate goal of both juvenile and adult probation " 'is the rehabilitation of the offender, "[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment." ' " (Ibid.) " 'In light of this difference, 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.)
Whether a probation condition is unconstitutionally vague or overbroad is a question of law, which we review de novo. (Sheena K., supra, 40 Cal.4th at p. 888; Shaun R., supra, 188 Cal.App.4th at p. 1143.)
a. Vagueness
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (Sheena K., supra, 40 Cal.4th at p. 890.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (Ibid.) "The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7.)' [Citation.] The vagueness doctrine bars enforcement of ' "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' [Citation.] A vague law 'not only fails to provide adequate notice to those who must observe its strictures, but also "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." ' " (Ibid.) In conducting our independent review of the challenged conditions, we are "guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' " (Ibid.)
b. Overbreadth
"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 overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "[A] facial overbreadth challenge is difficult to sustain." (Williams v. Garcetti (1993) 5 Cal.4th 561, 577; see also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1109 [explaining "that a facial challenge to a law on grounds that it is overbroad and vague is an assertion that the law is invalid in all respects and cannot have any valid application"].)
2. Analysis
We agree that the phrase "sexual images" as set forth in the probation conditions is vague on its face. The phrase lacks reasonable specificity as to what type of image is prohibited. A probation condition is sufficiently specific " ' "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources." ' " (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) The probation conditions imposed here do not provide K.L. with adequate notice of what kind of images he must avoid in order to be in compliance nor can the phrase readily be made certain by reference to other definable sources. However, we disagree with K.L.'s contention that "only those images that are objectively sexual should be prohibited."
Accordingly, we need not and do not decide whether the probation conditions are unconstitutionally overbroad.
It may be difficult to intelligibly define what is encompassed within the phrase "sexual images," but that difficulty derives primarily from the inherently subjective nature of human arousal. The same image that arouses one person can be not arousing at all to another. Images that are treacherous for a pedophile to view are not problematic for others. Thus, while there may be certain common sources of stimulation, there is no universal, objective "sexual" image. It is the minor's subjective experience that must be taken into consideration when crafting a probation condition that will facilitate the rehabilitation of the probationer. The juvenile court is best positioned to more specifically define what types of "sexual images" should be prohibited for an individual minor. Besides counsel and the probation department, the juvenile justice court has access to recommendations from those who specialize in the treatment of youthful sex offenders, such as therapists and sexual rehabilitation program directors who, as part of their treatment models, address access to visually stimulating materials and impose rules related to the same.
For K.L., the offenses which led to his being declared a ward of the court involved teenaged females and therefore he presumably finds images of women to be "sexual." In one of the offenses, K.L. admitted sexually penetrating an unconscious person after he plied the victim with alcohol, which suggests that K.L. may have issues seeing women as more than sexual objects. We do not profess to know how to define what types of "sexual images" would most hinder K.L.'s reformation and rehabilitation. That determination is best left to the juvenile court, in consultation with those who would have greater insight into the matter.
There is no evidence that K.L.'s sexual interests extend to children.
III. DISPOSITION
The 2018 disposition order is reversed. The matter is remanded to the juvenile court for entry of a new disposition in which the probation conditions referencing "sexual images" are modified to define more precisely the images K.L. should be prohibited from accessing on the Internet or knowingly using, possessing or displaying.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.