Opinion
F085510
01-24-2024
In re M.M., a Person Coming Under the Juvenile Court Law. v. M.M., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County. No. 22JL-00064A Jennifer O. Trimble, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Minor M.M. contends on appeal that (1) the disposition minute order, regarding the terms and conditions of probation, must be amended to reflect the juvenile court's oral pronouncement of probation conditions; and (2) probation condition term No. 41, ordering minor not to be in the presence of any person possessing or having access to a firearm, is unconstitutionally overbroad and must be amended. The People agree that term No. 41 is overbroad and must be amended. However, the People contend the remainder of the disposition order need not be amended. We modify term No. 41 and otherwise affirm the disposition order.
PROCEDURAL SUMMARY
On June 16, 2022, an amended juvenile wardship petition was filed, pursuant to Welfare &Institutions Code section 602, alleging minor committed two counts of lewd and lascivious acts upon a child under the age of 14 years old (Pen. Code, § 288, subd. (a); counts 1 &2).
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
On August 2, 2022, a contested jurisdiction hearing was held. The juvenile court found both counts of the petition to be true. Minor was adjudged a ward of the court.
On December 7, 2022, a disposition hearing was held. The juvenile court committed minor to suitable out-of-home placement. The maximum term of confinement was calculated to be nine years. The court awarded minor 177 days of predisposition credit. Various terms and conditions of probation were imposed.
On December 28, 2022, minor filed a notice of appeal.
We have omitted the underlying facts, as they are not relevant to the issues raised by minor on appeal.
I. PROBATION CONDITION TERM NOS. 1, 4, 6, 8, 19, 20, and 32
Minor contends that the disposition hearing minute order regarding the terms and conditions of probation must be amended to match the juvenile court's oral pronouncement. He specifically argues term Nos. 1, 4, 6, 8, 19, and 32 must be amended because the court orally recited only the first part of the written version of those terms. He also contends term No. 20 must be stricken because the juvenile court did not mention that term in its oral pronouncement but included it in the written order. The People disagree. We agree with the People.
Minor's briefs repeatedly assert that the "Disposition Minute Order" must be modified to reflect the court's oral pronouncement. However, minor does not differentiate between the clerk's minute order from the hearing and the signed order for wardship. Based on the content of minor's arguments, we conclude minor intended to reference the signed, written order of wardship when he referred to the "Disposition Minute Order," and was not referring to the clerk's minute order from the hearing. The clerk's minute order from the disposition hearing states, "The Court has read and considered the Probation Officers Social Study Report and Recommendation on the Original Petition received on: December 5, 2022. [¶] ... [¶] "The Court adopts the Findings and Recommendations as set forth in the Report as the findings and orders of the Court. [¶] ... [¶] "Provision No. 16 is stricken."
A. Background
At the December 7, 2022 disposition hearing, the juvenile court discussed minor's probation conditions. The court recited the first part of term Nos. 1 through 11, 15, 17 through 19, 21, 22, 26, 28, 35, 38 through 41, 44, and 46, listed in the written order for wardship. Although the court did not state which term number from the written order it was reciting as it went through them, and although some terms were paraphrased, each term the court stated clearly reflects which term in the written order the court was referencing.
The court did not recite each term it adopted in its entirety. For term Nos. 1, 4, 5, 6, 8, 11, 17, 19, 21, 22, 28, 32, 35, and 41, the court recited or closely paraphrased only the first part of the term from the written order for wardship, but omitted the remainder where written terms in the order contained multiple sentences or clauses.
The court explicitly stated it struck term No. 16.
It did not mention term No. 20.
The written order for wardship was signed by minor and the juvenile court on the same day as the hearing. The order of wardship is a pre-printed form listing all standard juvenile probation terms in their entirety. Some written terms only consist of one sentence. However, many written terms are much lengthier, consisting of multiple sentences describing the term in great detail and often containing specific information about how the minor is supposed to comply with the directive stated in the first sentence of the written term.
On the signed, written order, term Nos. 1 through 11, 15, 17 through 22, 26, 28, 32, 35, 38 through 41, 44, and 46 were marked with an "X," indicating those terms were adopted by the juvenile court as conditions applying to minor's probation. Term No. 16 had a type-written "X" that was crossed out by hand with "Stricken" handwritten over it.
B. Law
"Although the traditional rule was that a court's oral pronouncement of probation conditions controlled over the written version, 'the modern rule is that if the clerk's and reporter's transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.' [Citation.] Indeed, the oral pronouncement may well be less inclusive given that 'probation conditions "need not be spelled out in great detail in court as long as the [probationer] knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order." '" (In re D.H. (2016) 4 Cal.App.5th 722, 725, citing People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) The contents of the court's order will be explained by the probationer's probation officer. (People v. Thrash (1978) 80 Cal.App.3d 898, 901-902; In re Frankie J. (1998) 198 Cal.App.3d 1149, 1155.)
C. Analysis
Here, the written version of term Nos. 1, 4, 5, 6, 8, 11, 17, 19, 21, 22, 28, 32, 35, and 41 in the signed order contained multiple sentences or one sentence with multiple clauses. For term Nos. 1, 4, 8, 11, 19, 28, 32, 35, and 41, the juvenile court only recited the first sentence of the written version of the term and omitted the remainder. The written version of term Nos. 5, 6, 17, 21, and 22 each consisted of a single sentence with multiple clauses. For those terms, the court only recited the first part of the sentence and not the remainder.
Minor contends that the written order must be amended to delete the remaining parts of term Nos. 1, 4, 6, 8, 19, and 32 because they were not fully recited by the court in its oral pronouncement.
While the juvenile court also did not fully recite the written version of term Nos. 5, 11, 17, 21, and 22 in its oral pronouncement, minor does not argue that these terms must be amended.
However, looking at the circumstances of the case and comparing the version of the probation terms in the oral pronouncement and signed, written order for wardship, we conclude the juvenile court intended to adopt the entirety of the terms at issue as written in the signed order and did not intend its oral pronouncement to change those terms for which it recited only the first part, as the court"' "need not ... spell[ ] out [probation terms] in great detail in court as long as the [probationer] knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order." '" (In re D.H., supra, 4 Cal.App.5th at p. 725.) Here, minor and the court signed the written order containing the complete written version of the adopted terms, on the same day the court made its oral pronouncement. Further, the parts of the written versions of term Nos. 1, 4, 6, 8, 19, and 32 that the court did not fully recite only further elaborated on the directive contained in the first part of those terms that were orally recited by the court, with boilerplate informational details about how the terms were to be implemented. The court's recitation of only the first part of those terms did not substantively change them.
Term No. 1
The written, signed order states, "[(1)] Report to the Probation Officer at such times and places as the Probation Officer may direct. Report in person to the Merced County Probation Department within two (2) business days following release from custody or release on the Electronic Monitoring programs." In the court's oral pronouncement, it stated, "You are to report to Probation at such times and places as they direct."
Minor argues that term No. 1 in the written order must be amended to remove everything after the first sentence. However, we conclude the complete version of the term in the signed, written order controls. While the juvenile court did not explicitly state the additional directive included in the signed order for minor to "[r]eport in person to the Merced County Probation Department within two (2) business days following release from custody or release on the Electronic Monitoring programs," this additional information did not substantively change the requirement of the first sentence. Rather, it supplies details about how the minor is to implement the requirement of the first sentence. Further, minor signed the order on the same day as the court orally discussed the probation terms and was aware of the complete term No. 1 as written in the signed order.
Term No. 4
Minor argues term No. 4 in the written order must be amended to remove everything after the first sentence. The signed, written order states, "[(4)] Attend school every day, every class on your schedule as prescribed by law, and obey all school regulations. Notify your Probation Officer by 10:00 a.m. on any school day that you are absent from school. If you are home from school because of illness or suspension, you are not to leave your home that day or night except to keep a doctor's appointment unless given permission by your Probation Officer. You will not voluntarily enroll in an independent studies program or alternative school unless prior written permission has been obtained from your Probation Officer. If you have graduated from school or are eighteen years of age, you must seek and maintain at least 32 hours a week of gainful employment." Orally, the juvenile court only stated, "You are to attend school every day, ever[y] class on your schedule, and obey all school regulations."
Again, we conclude the signed, written order controls. The differences between the written and oral versions of the term amount to standard, technical details for how minor is to implement the requirement to attend school. The additional sentences in the written term do not substantively conflict with the juvenile court's oral pronouncement of the first sentence of the term. Moreover, minor read and signed the written order after the hearing and was thus aware of the full requirements of term No. 4.
Term No. 6
The signed, written order states, "[(6)] Do not leave the state without the written approval of the Court and the Probation Officer and do not relocate to another state until noticed that the jurisdiction has accepted the case through Interstate Compact." During its oral pronouncement, the juvenile court stated, "Do not leave the state without the written approval of this Court and Probation." Minor argues term No. 6 in the written order must be amended to remove the clause stating," 'do not relocate to another state until noticed that the jurisdiction has accepted the case through Interstate Compact.' "
Again, we conclude that the written, signed order's version of term No. 6 controls, as the second half of the sentence in the written version of the term only contains technical requirements, and does not conflict with the substantive requirements of the term stated orally by the juvenile court. Again, minor was aware of the complete written term when he signed the order the same day as the court made its oral pronouncement.
Term No. 8
The juvenile court orally stated, "Be inside your home between the hours of 10:00 p.m. and 6:00 a.m. unless accompanied by a parent or a placement staff." The signed, written order states, "[(8)] Be inside your home between the hours of 10:00 p.m. and 6:00 a.m., unless accompanied by a parent/guardian, and in accordance with any curfew conditions the Probation Officer may direct. Do not remain away from home overnight without first securing the Probation Officer's permission."
Minor argues term No. 8 in the written, signed order must be amended to remove everything after "parent/guardian." Again, we conclude the written version of term No. 8 in the signed order controls. The substance of the term is the same as the court's abbreviated version in its oral pronouncement. The written order simply goes into more detail, and minor signed the written version and was aware of the written term in its entirety when he signed the order.
Term No. 19
The juvenile court stated during its oral pronouncement, "Seek and maintain substance abuse, anger management, and mental health counseling as directed by Probation." The signed, written order states, "[(19)] Seek and maintain substance abuse,anger management, and mental health counseling as directed by the Probation Officer. Provide proof of enrollment in said counseling within five (5) business days of being referred and arrange for reports to the Probation Officer regarding compliance with scheduled appointments and progress in counseling."
The typewritten version of term No. 19 in the order omits the word "abuse" after "substance," but "abuse" is handwritten into the term.
Minor argues term No. 19 must be amended to remove everything in the written version of the term after the first sentence. Again, we conclude the version of term No. 19 in the written, signed order controls. The juvenile court recited the first sentence of the term verbatim from the written order. The remainder of the written term omitted orally by the court simply explains the technical details of the requirements of the first sentence of the term. To remove the part of the term that requires proof of enrollment for the required term would render the term unenforceable and pointless. Further, minor signed the order and was aware of the complete written term.
Term No. 32
The juvenile court stated that minor was ordered to "participate and successfully complete a suitable placement program." The written, signed order states, "[(32)] Minor is to participate in and successfully complete a suitable placement program. Comply with attached placement orders. The minor's parent(s)/guardian(s) are to cooperate with and participate in program requirements pursuant to Sections 727(a)(1), 727(b)(1), 727(c), 727(d), and 729.2(b) of the California Welfare and Institutions Code. Minor's parent/guardian to contact a placement unit representative immediately following the minor's order to suitable placement."
Minor argues the written order's term No. 32 must be amended to remove everything after the first sentence to match the oral pronouncement. Again, however, we conclude the version of term No. 32 in the written, signed order controls. The remainder of the written term in the order is simply a continuation of the oral term pronounced by the juvenile court with technical details for how to comply with the first sentence of the term, and minor was aware of the complete written term when he signed the written order.
Term No. 20
The written, signed order has an "X" marked next to "[(20)] Parent(s)/guardian(s) to participate in counseling pursuant to Sections 727(a)(1), 727(b)(1), 727(c), 727(d) and 729.2(b) of the Welfare and Institutions Code as directed by the Probation Officer." However, the juvenile court did not reference this term during its oral pronouncement, but did recite term No. 19, discussed above, that minor participate in counseling.
Minor argues term No. 20 must be stricken because it was never ordered by the juvenile court. Looking at the circumstances of the case, we again conclude the written, signed order controls. In the court's oral pronouncement, it explicitly struck multiple other terms but did not state it was striking term No. 20. Further, minor and the juvenile court both signed the written order, which included term No. 20 marked with an "X," but did not adopt many other terms written in the order. Minor was accordingly aware that term No. 20 was included in his probation terms when he signed the written order, just as he was aware of the other complete written terms that were adopted, as discussed above.
II. PROBATION CONDITION TERM NO. 41
Minor contends that the portion of probation condition term No. 41 prohibiting him from being in the presence of persons with access to weapons should be amended to strike the "association" portion of the term or amended to limit it to those who illegally possess such weapons. The People contend it can be modified to avoid being overbroad. We modify term No. 41.
A. Background
At the disposition hearing, the juvenile court imposed term No. 41 in its oral pronouncement, stating, "[Y]ou shall not own, posses[s], transport, sell, or have immediate access to any firearm, firearm replica, magazines, ammunition, ammunition loading devices, dangerous illegal weapons, pepper spray or electrical weapons; nor are you to remain in the presence of any person who has immediate access to such dangerous weapons."
In the written, signed order, term No. 41 states, "You shall not own, possess, transport, sell or have immediate access to any firearm, firearm replica, magazines, ammunition, ammunition loading devices, dangerous/illegal weapons, oleocapsicum pepper spray pursuant to Section 22810 of the Penal Code, conducted electrical weapons pursuant to Section 22610 of the Penal Code or other weapon or be involved in activities with, associate with, nor remain in the presence of any person who has immediate access to any firearm, firearm replica or other dangerous/illegal weapon in their possession or under their control."
B. Law
A 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." (§ 730, subd. (b).) A probation condition "will not be held invalid 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 ...' " (People v. Lent (1975) 15 Cal.3d 481, 486.) All three requirements must be met before the condition will be invalidated by a reviewing court. (Id. at p. 486, fn. 1.)
"A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile." (In re Josh W. (1997) 55 Cal.App.4th 1, 5; In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)
However, a juvenile court's discretion is not boundless. (People v. Garcia (1993) 19 Cal.App.4th 97, 101.) A probation condition can be overbroad. (Sheena K., supra, 40 Cal.4th at p. 890.) "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." (Ibid.) Further, "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.'" (Ibid.) Juvenile probation conditions affecting constitutional rights must be narrowly tailored to meet the needs of the individual (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82), and must serve the interests of public safety and rehabilitation. (People v. Keller (1978) 76 Cal.App.3d 827, 839.)
C. Analysis
Minor contends the clause in both the oral and written versions of term No. 41 that orders minor not to "be involved in activities with, associate with, nor remain in the presence of any person" who has access to the various dangerous weapons outlined in the term is unconstitutionally vague and overbroad and must be amended to exclude those who legally possess weapons.
Minor contends as a threshold issue that we should address this issue even though defense counsel failed to object to the probation condition in the juvenile court. The People agree, as do we. Generally, a defendant who does not object to an alleged erroneous ruling of the trial court forfeits their right to raise the claim on appeal. (Sheena K., supra, 40 Cal.4th at p. 880.) However, where an appellant challenges a probation condition as facially vague and overbroad, presenting a question of law, the forfeiture doctrine does not apply. (Id. at pp. 887-888.)
Minor argues that the term ordering him not to remain in the presence of anyone who possesses or has access to dangerous weapons is unconstitutionally overbroad because it potentially includes all police and probation officers, security guards, loss prevention agents, school resource officers, anyone in the military, and family members who legally possess firearms, as well as any locations where law enforcement may be present, including courthouses, banks, and government buildings. He argues this would make it impossible for him to satisfy the requirements of other probation terms, such as meeting with his probation officer, attending school daily, submitting to a search by probation or police, and being at home during certain hours if a family member who legally possessed a weapon was also in the home. The People agree with minor. While they note that a reasonable person would likely understand the probation condition does not preclude going to court or meeting with a probation officer, they concede that, for clarity, the probation condition should be modified accordingly, but not completely stricken. We agree with the parties.
In People v. Forrest (2015) 237 Cal.App.4th 1074, the defendant challenged a probation condition that stated," '[d]o not remain in any building, vehicle or in the presence of any person where you know a firearm, deadly weapon, or ammunition exists,'" as overbroad and vague. (Id. at p. 1083.) The defendant argued that the condition as phrased prohibited her from entering certain buildings, such as courthouses and police stations. (Ibid.) The appellate court agreed that the condition was unconstitutionally overbroad, as it "unduly restrict[ed] [the defendant]'s constitutionally guaranteed freedom of travel and association and her right to access the courts, and [was] not narrowly tailored to safeguard these fundamental rights while restricting her conduct in a manner reasonably designed to promote her rehabilitation and to protect public safety." (Id. at p. 1084.) The Forrest court modified the term to limit the class of people whom the defendant could not be near to those who possessed weapons illegally or those who possessed a firearm, whether legally or illegally, if the defendant knowingly had ready access to the firearm, and limited the class of places where the defendant could not be to those where the defendant knowingly had ready access to firearms. The modified term in Forrest stated:
" 'Do not remain in the presence of any person who you know illegally possesses a firearm, deadly weapon, or ammunition. Also, do not remain in a building, in a vehicle, or in the presence of any person when you knowingly have ready access to a firearm, regardless of whether it is lawfully possessed or was lawfully acquired.'" (Forrest, supra, 237 Cal.App.4th at p. 1085.)
The Forrest court reasoned that the modification remedied the "unconstitutional overbreadth of [the probation term] while safeguarding the state's interests in maintaining public safety, preventing future criminality, and rehabilitating [the defendant] by deterring her from knowingly having ready access to firearms." (Id. at p. 1085.)
We agree with the parties that modifying term No. 41 in a similar manner would also remedy any issues of unconstitutional vagueness and overbreadth. Accordingly, we order term No. 41 be modified to add knowledge and illegality requirements, as in Forrest, to state:
"41 You shall not own, possess, transport, sell or have immediate access to any firearm, firearm replica, magazines, ammunition, ammunition loading devices, illegal weapons, oleocapsicum pepper spray pursuant to Section 22810 of the Penal Code, conducted electrical weapons pursuant to Section 22610 of the Penal Code or other weapon. You shall not associate with, nor remain in the presence of any person who you know has immediate access to any illegally possessed firearm, firearm replica or other illegal weapon in their possession or under their control. You shall not remain in a building, in a vehicle, or in the presence of any person when you knowingly have ready access to a firearm, regardless of whether it is lawfully possessed or was lawfully acquired."
DISPOSITION
We modify probation condition term No. 41 of the order for wardship to state, "41 You shall not own, possess, transport, sell or have immediate access to any firearm, firearm replica, magazines, ammunition, ammunition loading devices, illegal weapons, oleocapsicum pepper spray pursuant to Section 22810 of the Penal Code, conducted electrical weapons pursuant to Section 22610 of the Penal Code or other weapon. You shall not associate with, nor remain in the presence of any person who you know has immediate access to any illegally possessed firearm, firearm replica or other illegal weapon in their possession or under their control, nor remain in a building, in a vehicle, or in the presence of any person when you knowingly have ready access to a firearm, regardless of whether it is lawfully possessed or was lawfully acquired."
As so modified, the disposition order is affirmed.
[*] Before Peña, Acting P. J., Smith, J. and DeSantos, J.