Opinion
A152570
10-04-2018
In re U.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. U.V., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. JV18244)
U.V. (appellant) appeals from a juvenile court order declaring him a ward of the court and placing him on probation after he admitted to a charge of assault with intent to commit sodomy. Raising mostly constitutional claims of vagueness and overbreadth, he challenges nine probation conditions that, among other things: (1) prohibit him from possessing sexually arousing materials (condition number 24); (2) require him to submit to warrantless searches of his electronic devices and provide passwords (conditions numbers 11 and 13); (3) prohibit him from using internet communication programs (condition number 25); (4) require the release of information from therapy (conditions numbers 16 and 17); (5) require him to stay away from certain places (conditions numbers 22 and 27); and (6) require him to participate in substance abuse counseling as directed (condition number 18). We modify several probation conditions and remand others for modification by the juvenile court.
BACKGROUND
On September 20, 2015, appellant, who was 12 years old, penetrated his eight-year-old cousin's anus with his penis. Appellant had previously shown the victim a video of "a naked man with two naked women" on appellant's iPad. Appellant told a police detective he found the video online after a neighbor child told him about it. The victim said appellant asked him to " 'do the things,' " but the victim refused. Appellant threatened to tell the victim's brother that the victim "was a girl." Appellant rubbed lotion on his penis and put it in the victim's anus. The victim asked appellant to stop, but appellant "kept saying 'a little bit more.' " The victim's older brother came to the bedroom door and saw appellant naked on his knees behind the victim. Appellant was thrusting his hips and trying to put his erect penis in the victim's anus. Afterwards, appellant told his parents "he had urges and wanted to have sex."
The facts in this paragraph are drawn from the probation officer's dispositional report.
In January 2016, the Napa County District Attorney's Office filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging appellant committed a lewd act upon a child (Pen. Code, § 288, subd. (a)) and sodomy of a person under 18 (§ 288, subd. (b)(1)). In August 2017, an amended petition was filed adding a third count of assault with intent to commit sodomy (§ 220). Appellant admitted the assault count, and the juvenile court dismissed the other counts.
All undesignated statutory references are to the Penal Code.
In September 2017, the juvenile court declared appellant a ward of the court and placed him on probation in his parents' home with various conditions, including the nine at issue on appeal.
DISCUSSION
I. Legal Principles
When a juvenile court places a minor on probation, it "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." (Welf. & Inst. Code, § 730, subd. (b); see also id., § 202, subd. (b).) " ' "In fashioning the conditions of probation, the . . . court should consider the minor's entire social history in addition to the circumstances of the crime." ' [Citation.] The court has 'broad discretion to fashion conditions of probation' [citation], although 'every juvenile probation condition must be made to fit the circumstances and the minor.' " (In re P.O. (2016) 246 Cal.App.4th 288, 293-294 (P.O.).) In People v. Lent (1975) 15 Cal.3d 481 (Lent), the Supreme Court held a 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.' " (Id., at p. 486; accord P.O., at p. 294.)
Furthermore, and more pertinent to the issues in the present appeal, "[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,' if it is to withstand a challenge on the ground of vagueness. [Citation.] 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." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) We review vagueness and overbreadth claims de novo. (People v. Stapleton (2017) 9 Cal.App.5th 989, 993 (Stapleton).)
II. The No-Sexually-Arousing-Materials Condition Must be Modified
Probation condition number 24, the no-sexually-arousing-materials condition, provides: "The minor shall not own, use, or possess any form of sexually arousing materials which include computer based movies, videos, magazines, books, games, sexual aids or devices, or any material which depicts partial or complete nudity or sexually explicit language, nor frequent any establishment where such items are the primary commodity for sale." Appellant challenges the condition in various respects. He contends the prohibition on possession of material depicting "partial or complete nudity" is unconstitutionally overbroad. He contends the portions of the condition referring to "sexually arousing materials," "sexually explicit language," and "frequent[ing] any establishment where such items are the primary commodity for sale" are unconstitutionally vague and overbroad. Finally, he contends the word "frequent" is vague.
A. The Prohibition on Material Depicting Nudity is Overbroad
In In re Carlos C. (2018) 19 Cal.App.5th 997, 1002 (Carlos C.), Division Two of this District considered an overbreadth challenge to a probation condition identical to the no-sexually-arousing-materials condition at issue in the present case. (Id. at pp. 1001-1002.) The claim in Carlos C. was narrower, only involving a challenge to the prohibition on possession of material depicting partial or complete nudity. (Id. at p. 1002.) The court of appeal observed that several federal circuit decisions had "struck down as unconstitutionally overbroad conditions prohibiting adult offenders from possessing depictions of nudity. [Citations.] The overbreadth of this type of condition is both sweeping and obvious: 'By its terms, it would prohibit [defendant] from viewing a biology textbook or purchasing an art book that contained pictures of the Venus de Milo, Michelangelo's David, or Botticelli's Birth of Venus, all of which depict nudity.' " (Ibid.) The court modified the challenged probation condition by striking the prohibition on materials depicting nudity, reasoning that "[r]estricting a minor's access to such a wide range of materials with potential artistic, cultural and/or educational value imposes a significant burden on the minor's constitutional rights with little, if any, discernible impact on the minor's reformation and rehabilitation, even a minor adjudged to have committed a sex offense." (Id. at p. 1004.)
On appeal, respondent does not deny that a prohibition on materials depicting nudity would be overbroad, but it argues the no-sexually-arousing-materials condition is not so broad. Carlos C. rejected the same contention, and we adopt the court's reasoning as follows: "The People's principal argument is not to defend the constitutionality of this condition but, rather, to construe it narrowly. It argues the disputed nudity language 'is not overbroad when considered in the context of the condition as a whole, and given its ordinary meaning and interpreted with common sense,' because it supposedly contains a limitation that the depiction be 'sexually arousing' in the manner of materials found in X-rated movies or adult bookstores. Thus, the People contend, as so construed [the challenged] condition does not prohibit [the appellant] from viewing displays of nudity in mainstream movies or television shows, or in great works of art or educational text books. We disagree. That interpretation is at odds with the plain text of what the court ordered. The People in fact have it backwards. The nudity language is not limited by the phrase 'any form of sexually arousing material,' but is a subcategory identified as (and therefore prohibited as) 'sexually arousing material.' " (Carlos C., supra, 19 Cal.App.5th at p. 1003.)
We agree with Carlos C. that the prohibition on materials depicting nudity is unconstitutionally overbroad and we will modify probation condition number 24 by striking the challenged language. (Carlos C., supra, 19 Cal.App.5th at p. 1005; see also Sheena K., supra, 40 Cal.4th at p. 892.)
Because appellant argues the probation condition is unconstitutional on its face, rather than that it is unreasonable in the circumstances of the case, the claim was not forfeited by his failure to object below. (Stapleton, supra, 9 Cal.App.5th at p. 994 ["where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court"]; People v. Pirali (2013) 217 Cal.App.4th 1341, 1347 [concluding overbreadth claim not forfeited] (Pirali); People v. Turner (2007) 155 Cal.App.4th 1432, 1435 ["facial overbreadth" claim not forfeited] (Turner).)
B. Condition Number 24 Must be Modified to Address Vagueness
Appellant argues the phrases "sexually arousing materials," "sexually explicit language," and "frequent[ing] any establishment where such items are the primary commodity for sale" are unconstitutionally vague and overbroad. We agree the challenged probation condition is vague as to the phrases "sexually arousing materials" and "sexually explicit language," and we will modify the condition to clarify its scope of application.
In In re D.H. (2016) 4 Cal.App.5th 722 (D.H.), Division One of this District considered an analogous claim that the term " 'pornography' " as used in a juvenile probation condition is "inherently vague and subjective." (Id. at p. 728.) The court of appeal held the claim had merit, reasoning as follows: "[The appellant] relies on United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868 (per curiam), which involved a challenge to a term of supervised release that directed the defendant not to possess ' "any pornography," including legal adult pornography.' (Id. at p. 872.) The Ninth Circuit Court of Appeals determined that 'a probationer cannot reasonably understand what is encompassed by a blanket prohibition on "pornography" ' because '[t]he term itself is entirely subjective; unlike "obscenity," for example, it lacks any recognized legal definition.' (Ibid.) Concluding that '[r]easonable minds can differ greatly about what is encompassed by "pornography," ' the court 'remand[ed] for the district court to impose a condition with greater specificity.' (Ibid.) . . . We agree with the reasoning in these decisions and conclude that the no-pornography condition is vague." (D.H., at p. 728.)
The same reasoning applies to the phrase "sexually arousing materials." Although the phrase is more descriptive than "pornography," it is still subjective and " '[r]easonable minds can differ greatly about what is encompassed by' " the phrase. (D.H., supra, 4 Cal.App.5th at p. 728; see also United States v. Adkins (7th Cir. 2014) 743 F.3d 176, 194 [prohibition on "pornography or sexually stimulating material or sexually oriented material" is vague].) Respondent asserts the meaning of the phrase is clear, but the cases it cites do not support its position. (See Pirali, supra, 217 Cal.App.4th at p. 1352 [prohibition on "pornographic or sexually explicit materials as defined by the probation officer" vague]; Turner, supra, 155 Cal.App.4th at p. 1436 ["The phrase 'sexually stimulating/oriented material deemed inappropriate by the probation officer' is an inherently imprecise and subjective standard."].)
Respondent also argues, apparently in the alternative, that "[r]eading the condition as a whole, it is clear appellant is prohibited from possessing or accessing 'movies, videos, magazines, books, games, sexual aids or devices' that have a primary purpose of causing sexual arousal." (Italics added.) We disagree—the broad and unqualified language of the condition renders that construction impossible. However, we do believe respondent's construction is an appropriate modification that alleviates the vagueness in the phrase "sexually arousing materials." Although there may be situations where determining the primary purpose of material will be a close call, it is a sufficiently clear standard that will in almost all instances allow appellant to readily determine whether materials are prohibited. (See People v. Morgan (2007) 42 Cal.4th 593, 606 [" ' "[a] statute is not void [for vagueness] simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language." ' "].) Accordingly, we will modify probation condition number 24 to provide that "The minor shall not own, use, or possess any materials that have a primary purpose of causing sexual arousal . . . ."
With that modification, the prohibition on "sexually arousing" materials is not overbroad, and the prohibition on "frequent[ing] any establishment where such items are the primary commodity for sale" is not unconstitutionally vague or overbroad (although we do conclude in Part II.C., post, that the word "frequent" must be modified).
We also conclude the prohibition on material that contains "sexually explicit language" is vague. Like "sexually arousing materials," the phrase is subjective and " '[r]easonable minds can differ greatly about what is encompassed by' " the phrase. (D.H., supra, 4 Cal.App.5th at p. 728; see Reno v. ACLU (1997) 521 U.S. 844, 853 (Reno) ["Sexually explicit material on the Internet includes text, pictures, and chat and 'extends from the modestly titillating to the hardest-core.' "].) We will modify probation condition number 24 by striking the phrase. We have no doubt that, as modified, probation condition number 24 will be sufficient to prohibit appellant from possessing the types of sexually arousing materials that could impede his rehabilitation or threaten a recurrence of the behavior that resulted in him becoming a ward of the court.
The prohibition on material with "sexually explicit language" also presents overbreadth concerns. The phrase would encompass, for example, many lauded works of literature, as well as "safer sex instructions . . . written in street language so that the teenage receiver can understand them." (Reno, supra, 521 U.S. at p. 854.)
C. The Word "Frequent" in Condition Number 24 Must Be Modified
Appellant contends the use of the word "frequent" in the prohibition on "frequent[ing] any establishment where [prohibited materials] are the primary commodity for sale" renders the probation condition vague. He relies on the decision in People v. Sanchez (2003) 105 Cal.App.4th 1240, which struck as vague a probation condition that required the defendant to "disclose the areas he frequents." (Id. at p. 1243.) The court of appeal concluded the phrase used by the trial court, "areas frequented," had "no fixed meaning." (Id. at p. 1244.) The court pointed out that the dictionary definition of "frequent" is to " ' visit often,' " and "one cannot determine with any degree of confidence whether the registrant must list places where he or she may be found daily, weekly, or even a couple of times a month." (Ibid.)
As respondent points out, Sanchez is inapposite because the juvenile court in the present case plainly intended to prohibit any visits to establishments primarily selling prohibited materials. The court did not intend to permit appellant to visit those establishments, as long as he did not do so regularly. But, because the court's use of the verb "frequent" is literally at odds with its intent, we will modify probation condition number 24 to state that "appellant may not knowingly visit any establishment where such items are the primary commodity for sale."
III. The Electronic Search Conditions Are Overbroad
Appellant contends probation conditions numbers 11 and 13 (the electronic search conditions) are unconstitutionally overbroad. Condition number 11 provides, "The minor shall disclose to the minor's probation officer all electronic mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. The minor shall consent to the search of that electronic mail and Internet accounts, and any computer system at any time and the seizure of any information or data contained therein without a search warrant or probable cause . . . ." Condition number 13 provides, "The minor submit all electronic devices under their control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer. Contraband seized by the probation officer shall be disposed of, stored or returned at the discretion of the probation officer . . . ."
Defense counsel below objected to the electronic search conditions on the ground that they were not related to appellant's offense. The prosecutor argued the conditions were reasonable because appellant "admitted that he had access to porn on his iPad." The trial court expressed concern appellant could use the internet to contact other minors and said the conditions were "necessary to protect the minor from this kind of problem."
Appellant contends the electronic search conditions are unconstitutionally overbroad because they are not narrowly tailored to limit their impact on his constitutional right to privacy. (See, e.g., P.O., supra, 246 Cal.App.4th at p. 298 [modifying overbroad electronics search condition]; People v. Appleton (2016) 245 Cal.App.4th 717, 727 (Appleton) [striking and remanding for reconsideration of overbroad electronics search condition]; In re Malik J. (2015) 240 Cal.App.4th 896, 906 [modifying overbroad electronics search condition].) In particular, appellant argues the conditions permit the seizure of "any information" found on devices accessed by appellant, without regard to whether the information is of a sort likely to disclose violations of probation. He also complains the conditions are not restricted to devices within his "custody and control."
We exercise our discretion to consider appellant's claim despite his failure to object on overbreadth grounds below. (P.O., supra, 246 Cal.App.4th at pp. 297-298.)
The question whether an electronics search condition is justified under Lent, supra, 15 Cal.3d 481, because it would facilitate the juvenile's supervision (see People v. Olguin (2008) 45 Cal.4th 375) is currently before the California Supreme Court in In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923.
Appellant's concerns are well-taken. For example, in P.O., supra, 246 Cal.App.4th 288, the juvenile court imposed a broad electronics search condition in order to monitor the minor's involvement with drugs, but, the court of appeal observed, "the condition does not limit the types of data that may be searched in light of this purpose. Instead, it permits review of all sorts of private information that is highly unlikely to shed any light on whether [the minor] is complying with the other conditions of his probation, drug-related or otherwise." (Id. at p. 298; see also Appleton, supra, 245 Cal.App.4th at pp. 719, 725 [probation condition overbroad where it authorized "search[es] of [the] defendant's mobile electronic devices [that] could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity," including "medical records, financial records, personal diaries, and intimate correspondence"].) We agree the probation search conditions should be narrowed by limiting the types of data that may be searched. We also agree the conditions should specify that the devices subject to search and the passwords subject to disclosure are those within appellant's control. Appellant's briefs on appeal also briefly reference other objections, which may be resolved by modifications addressing the above two points; to the extent other objections remain, they may be addressed on remand. We will strike the electronics search conditions and remand for imposition of a more narrowly tailored condition that does not unduly infringe on appellant's privacy rights.
We reject appellant's suggestion that the only constitutional options for the juvenile court were to monitor appellant's internet use through tracking software or to prevent appellant from accessing pornography by installing parental control software. In light of the seriousness of appellant's offense and his use of the internet in committing the offense, a properly focused electronics search condition would not be unconstitutionally overbroad. (P.O., supra, 246 Cal.App.4th at p. 298 [rejecting the minor's argument "that no electronics search condition is warranted at all because other conditions of his probation constitute 'less restrictive alternatives to meet the state's goal[s] of rehabilitation and public safety' "].)
IV. The Prohibition on Internet Communication Programs is Overbroad
Probation condition number 25 prohibits appellant from "participating in chat rooms, using instant messaging, Internet Chat Query (ICQ), or other similar communication programs . . . ." Appellant contends the prohibition on internet communication programs is overbroad. We agree.
" '[T]he Internet, now past its nascence, comprises the "backbone" of American academic, governmental, and economic information systems.' " (In re Stevens (2004) 119 Cal.App.4th 1228, 1234 (Stevens).) Accordingly, "[r]estrictions upon access to the Internet necessarily curtail First Amendment rights." (Id. at p. 1236.) After surveying a number of federal decisions, the court of appeal in Stevens held that a condition of parole that forbade the defendant (an adult) from using the internet was unconstitutionally overbroad. (Id. at p. 1239.) The defendant had pled guilty to a lewd act upon a child and the police had found an album of photographs of naked boys in his possession. (Id. at p. 1231.) The court recognized there was a legitimate concern that "a released child molester's unfettered access to a computer might result in criminal conduct," but concluded the prohibition "bore no relation to [the defendant's] conviction for child molestation and imposed a greater restriction of his rights than was reasonably necessary to accomplish the state's legitimate goal." (Id. at p. 1239.) The court observed there were less restrictive alternatives available, including "monitoring software which automatically generates an e-mail to the parole officer should the parolee engage in an illegal use of his computer," "unannounced inspections" of the defendant's computer, and "sting operation[s]." (Ibid.)
The same reasoning applies in the present case. Although the juvenile court's prohibition on internet communication programs is not as broad as the prohibition on internet use in Stevens, the prohibition is still extraordinarily broad. For example, taken literally, probation condition number 25 prohibits appellant from using e-mail (an internet communication program), and it contains no exceptions for communications related to school, family, work, extracurricular activities, and the like. Accordingly, we will strike the probation condition and remand with directions that the juvenile court craft a narrower condition. While we express no opinion on the appropriateness or validity of particular restrictions, options include prohibiting access only to certain internet communication contexts (such as chat rooms), requiring approval for use of certain programs (see Pirali, supra, 217 Cal.App.4th at p. 1350), or requiring adult supervision (see In re Victor L. (2010) 182 Cal.App.4th 902, 926). But to effectively prohibit appellant from participating in all internet communications sweeps far too broadly, making it impossible for him to function in today's internet-dominated society. In modifying the condition, the juvenile court "should consider the purpose that this condition is intended to serve, in the context of his other probation conditions, and how it may be tailored to best help [appellant] avoid repeating his offense or generally aid in his rehabilitation." (In re M.F. (2017) 7 Cal.App.5th 489, 496.)
Because probation condition number 25 is overbroad, we need not consider appellant's claim it was also improper under Lent, supra, 15 Cal.3d 481.
V. The Therapy Information Release Requirement in Probation Condition Number 17 Must be Modified
Probation condition number 16 provides, "The minor shall submit to any and all programs of psychological assessment at the direction of the probation officer or treatment provider, including, but not limited to, ABEL screening and post dispositional polygraph examinations. The minor and his parents shall sign a release of information and be financially liable for the aforementioned assessments and shall provide the probation officer and treatment provider with the complete reports to assist in treatment planning and case monitoring . . . ." Probation condition number 17 provides, "The minor and his parents shall sign a release of information to allow the probation officer to communicate with other professionals involved in the treatment program and to allow all professionals involved to communicate with each other. This will include a release of information to the therapist of the victim . . . ."
Appellant contends the required releases of confidential therapy information are overbroad. The California Supreme Court's decision in People v. Garcia (2017) 2 Cal.5th 792 (Garcia) is instructive. There, the court addressed the constitutionality of section 1203.067, subdivision (b)(4), which requires that an adult sex offender placed on probation waive the "psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09." (Garcia, at p. 798.) The Supreme Court concluded the mandated waiver was not overbroad because it was "quite narrow" and "extend[ed] only so far as reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program." (Id. at pp. 810-811.) The court recognized that the state had a "strong and legitimate . . . . interest [in] allowing the psychotherapist, probation officer, and polygraph examiner to exchange relevant information about a probationer's reformation and rehabilitation, including information disclosed during the probationer's therapy." (Id. at p. 811.) But the condition should "be read to intrude on the privilege only to a limited extent: the extent specified in the condition itself, which describes what is reasonably necessary to enable communications among the psychotherapist, probation officer, and polygraph examiner; facilitate their understanding of the challenges defendant presents; and allow those containment team members to measure the effectiveness of the sex offender treatment and monitoring program. [Citation.] In all other respects, the privilege remains intact. So construed, the condition is not overbroad." (Id. at p. 813.)
Appellant argues probation condition number 16 "completely fails to specify who these confidential evaluations and tests will be released to." To the contrary, the condition states that appellant "shall provide the probation officer and treatment provider with the complete reports to assist in treatment planning and case monitoring." The only reasonable interpretation of the condition is that those are the persons—the probation officer and treatment provider—covered by the release. So construed, probation condition number 16 complies with Garcia, supra, 2 Cal.5th 792, and is not overbroad.
Appellant argues probation condition number 17, which requires a release allowing the probation officer and treatment professionals to communicate with each other, "fails to explain what confidential information it covers." We agree the information sharing is appropriate only to the extent it is intended to, in the language of probation condition number 16, "assist in treatment planning and case monitoring." (See Garcia, supra, 2 Cal.5th at p. 813.) We will modify probation condition number 17 to include that restriction.
Appellant also contends probation condition number 17 is overbroad to the extent it allows information sharing beyond the probation officer and professionals treating appellant, including to the victim's therapist. We agree the condition is overbroad to the extent it allows information sharing beyond the probation officer and professionals treating appellant—respondent has not articulated how releasing details from therapy to persons such the victim's therapist is "closely tailored" to the goal of rehabilitating appellant. (Sheena K., supra, 40 Cal.4th at p. 890.) To the contrary, as appellant suggests, it is more likely to undermine appellant's rehabilitation by making him less forthcoming in therapy. In a related point, appellant observes probation condition number 17 can be read to require release of information by any private therapist retained by his parents, beyond the treatment required by the probation department. In In re Corona (2008) 160 Cal.App.4th 315, the court of appeal rejected such a provision as a condition of parole, concluding it would "discourage a parolee from obtaining additional treatment. It is clearly contrary to the State's goal of reintegrating the parolee into society. The asserted special parole condition is unreasonable and unnecessary." (Id. at p. 321.) We will modify probation condition number 17 to make clear the release it requires applies only to professionals involved in treatment required by the probation department.
We will strike the sentence referring to the victim's therapist from probation condition number 17, and we will modify the remainder to read: "The minor and his parents shall sign a release of information to allow the probation officer to communicate with other professionals involved in the treatment program imposed by the probation department and to allow all professionals involved in such program to communicate with each other to assist in treatment planning and case monitoring."
These modifications also resolve appellant's vagueness claim.
VI. Probation Conditions Numbers 22 and 27 Must be Modified to Specify a Distance
Probation condition number 22 provides that appellant "shall not go to or loiter near school yards, parks, playgrounds, swimming pools, arcades or other places primarily used by children under the age of 14, unless approved by the probation officer or accompanied by a responsible adult . . . ." Probation condition number 27 provides that appellant "shall not enter onto the premises, travel past, or loiter near where the victim(s) maintains employment or reside(s) except under circumstances approved in advance and in writing by the probation officer." Appellant contends the conditions are "unconstitutionally vague because they fail to specify a distance [appellant] must keep away from the designated locations." Appellant relies on People v. Barajas (2011) 198 Cal.App.4th 748, and People v. Rhinehart (2018) 20 Cal.App.5th 1123, which both held that probation conditions providing the defendant could not be "adjacent" to a school failed to provide fair warning and should be modified to prohibit being within 50 feet of a school. (Barajas, at pp. 762-763; Rhinehart, at p. 1131.)
Respondent agrees this court should modify the probation conditions to "specify a numerical distance" because "[t]he word 'near' . . . functions similarly to the word 'adjacent to.' " However, it suggests the distance should be 50 yards. Among other things, that distance would be consistent with probation condition number 9, which prohibits appellant from being within 50 yards of a school without authorization. Because that probation condition suggests the juvenile court would have set the distance limitation at 50 yards if the issue had been raised below, we will modify probation conditions numbers 22 and 27 to include a 50 yard distance specification.
VII. Probation Condition Number 18 is Valid
The juvenile court struck a proposed probation condition that would have required appellant to submit to substance abuse testing because the condition had no relationship to appellant's offense. However, defense counsel did not object to a portion of probation condition number 18 that requires appellant to "attend and complete . . . substance abuse counseling . . . at the direction and discretion of the probation officer," among other forms of counseling. The full language of the probation condition is as follows: "The minor attend and complete individual counseling, family counseling, substance abuse counseling; Thinking for a Change and Cognitive Behavior Group at the direction and discretion of the probation officer and not discontinue without the permission of the counselor and the probation officer. . . ."
The condition is not invalid. "[E]ven 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." (People v. Olguin, supra, 45 Cal.4th at p. 380.) A "court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358-1359.) As respondent argues, "The condition simply gave the probation officer the discretion to provide appellant—a juvenile entering high school with self-reported issues with impulse control and positive peer relationships—with substance abuse counseling if necessary. [Citations.] The condition is reasonably related to future criminality and provides the probation officer with the flexibility to create a treatment program which responds to appellant and his potentially evolving needs." The juvenile court did not err.
Although appellant did not object below, we consider the merits of his claim because his claim of ineffective assistance of counsel would also require us to do so.
Appellant contends the probation condition actually requires substance abuse counseling because "[t]he first clause requiring that [appellant] attend substance abuse counseling is set off by a semicolon and therefore is not subject to the discretionary portion of the condition which is placed after the semicolon." We disagree with appellant's construction. If construed alone, the portion after the semicolon that contains the discretionary language is a nonsensical fragment lacking a subject; the language only makes sense if the portions before and after the semicolon are read together, with the discretionary provision applying to all the forms of counseling.
DISPOSITION
The probation conditions imposed by the juvenile court are stricken or modified as follows:
Probation conditions numbers 11 and 13 are stricken. On remand, the juvenile court may impose a narrower electronics search condition or conditions.
Probation condition number 17 is modified to read: "The minor and his parents shall sign a release of information to allow the probation officer to communicate with other professionals involved in the treatment program imposed by the probation department and to allow all professionals involved in such program to communicate with each other to assist in treatment planning and case monitoring."
Probation condition number 22 is modified to read: "The minor shall not go to or loiter within 50 yards of school yards, parks, playgrounds, swimming pools, arcades or other places primarily used by children under the age of 14, unless approved by the probation officer or accompanied by a responsible adult."
Probation condition number 24 is modified to read: "The minor shall not own, use, or possess any materials that have a primary purpose of causing sexual arousal, including computer based movies, videos, magazines, books, games, sexual aids or devices, nor shall he knowingly visit any establishment where such items are the primary commodity for sale."
Probation condition number 25 is stricken. On remand, the juvenile court may impose a narrower condition covering internet use.
The second sentence of probation condition number 27 is modified to read: "Further, the minor shall not enter onto the premises, travel within 50 yards, or loiter within 50 yards of where the victim maintains employment or resides except under circumstances approved in advance and in writing by the probation officer."
In all other respects, the judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.