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In re Francisco A.

California Court of Appeals, Sixth District
Jun 20, 2011
No. H036157 (Cal. Ct. App. Jun. 20, 2011)

Opinion


IN RE FRANCISCO A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO A., Defendant and Appellant. H036157 California Court of Appeal, Sixth District June 20, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. JV35808D

Bamattre-Manoukian, ACTING P. J.

The minor, Francisco A., appeals from an October 5, 2010 dispositional order, following his admission that he had committed four counts of theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). The juvenile court ordered the minor committed to the enhanced ranch program for six to eight months. Upon successful completion of the program, the minor was to continue on probation. The court also ordered that “[a]ll prior orders not in conflict remain in effect, ” which included gang conditions of probation.

On appeal the minor contends that three of the gang conditions are unconstitutional and should be modified or stricken.

For reasons that we will explain, we will affirm the October 5, 2010 dispositional order.

BACKGROUND

May 2009 Petition

In May 2009, a petition was filed under Welfare and Institutions Code section 602 alleging that the minor, then age 14, committed theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). According to a report by law enforcement, the minor acknowledged associating with “ ‘Tami Lee’ gangsters.” In June 2009, the minor admitted the allegations of the section 602 petition and the juvenile court granted deferred entry of judgment (DEJ).

Further unspecified statutory references are to the Welfare and Institutions Code.

In October 2009, the juvenile court determined that the minor had failed the DEJ program and sustained the section 602 petition.

On November 6, 2009, the probation department filed a report indicating that the minor had admitted to affiliating with the Sureño gang and had a tattoo symbolizing his gang involvement, although he denied being part of any specific gang. That same day, the court declared the minor a ward of the court and placed him on probation with various terms and conditions. Among the gang conditions relevant here, the court ordered: (1) “That said minor not knowingly participate in any gang activity and/or visit any areas of gang-related activity that are known to him unless he has prior permission from his Probation Officer”; (2) “That said minor not knowingly post, display, or transmit any symbols or information that the minor knows to be gang-related”; and (3) “That said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves anyone the minor knows to be a gang member or where the minor knows a witness or victim of a gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.”

February 2010 Notice

In February 2010, the probation department filed a notice under section 777 alleging that the minor, then age 15, violated probation by failing to abide by the gang terms and conditions, failing to complete public service work, failing to attend victim awareness workshops, failing to attend school on a regular basis, and being suspended from school. On March 12, 2010, the minor admitted the allegations, and the juvenile court continued the minor on probation. The court also ordered, among other things, that “all prior orders not in conflict remain in effect.”

The juvenile court’s March 12, 2010 order uses slightly different language in multiple places regarding the continuation of prior orders. For example, on one page, the court checked a box on a Judicial Council form stating: “All prior orders not in conflict remain in effect.” On a subsequent page, on a modified Judicial Council form, the court marked an “X” by the following sentence: “All prior orders not in conflict with today’s orders to remain in full force and effect.” The court also incorporated as part of its order the probation officer’s recommendations, which included that “all previous Orders of the Court not inconsistent with today’s Orders remain in full force and effect.”

March 2010 Notice

In late March 2010, the probation department filed a notice under section 777 alleging that the minor violated probation by failing to abide by the rules of the electronic monitoring program, in that he tested positive for cocaine and methamphetamine and accumulated 14 hours of unauthorized leave. The minor admitted the allegations. The juvenile court referred the minor for screening for the Juvenile Drug Treatment Court (JTC) program, continued the matter for disposition, and ordered, among other things, that “[a]ll prior orders not in conflict remain in effect.”

On April 13, 2010, the minor agreed in writing to participate in the JTC program. In the written agreement, the minor indicated that he had “read all the Terms and Conditions of [his] probation” and that those terms and conditions were “attached and made part of this Dispositional Agreement.” The court continued the matter for disposition and ordered, among other things, that “all prior orders not in conflict with today’s orders to remain in full force and effect.”

On April 29, 2010, the juvenile court continued the minor on probation and placed him in the JTC program. The court also ordered, among other things, that “[a]ll prior orders not in conflict remain in effect.”

Similar to the March 12, 2010 order, the juvenile court’s April 29, 2010 order also includes the following provisions: “all prior orders not in conflict with today’s orders to remain in full force and effect, ” and “all previous Orders of the Court not inconsistent with today’s Orders remain in full force and effect.”

September 2010 Petition

In September 2010, a petition was filed under section 602 alleging that the minor committed four counts of theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). The minor admitted the allegations of the petition.

On October 5, 2010, following a contested disposition hearing, the juvenile court adopted the probation department’s recommended disposition. The court determined that the minor had failed the JTC program, continued him as a ward of the court, and ordered him committed to the Santa Clara County Juvenile Rehabilitation Facilities’ enhanced ranch program for six to eight months. Upon successful completion of the program, the minor was to continue on probation. The court also ordered that “[a]ll prior orders not in conflict remain in effect.”

Similar to the March 12, 2010 and April 29, 2010 orders, the juvenile court’s October 5, 2010 order also includes the following sentences: “all prior orders not in conflict with today’s orders to remain in full force and effect, ” and “all previous Orders of the Court not inconsistent with today’s Orders remain in full force and effect.”

On October 18, 2010, the minor filed a notice of appeal challenging “[t]he ruling after contested disposition on October 5, 2010....”

DISCUSSION

On appeal, the minor raises constitutional challenges, such as vagueness and overbreadth, to the three gang conditions that we have recited above, and contends that the conditions must be modified or stricken. The gang conditions were imposed by the juvenile court in its November 6, 2009 dispositional order when the minor was placed on probation. In this appeal from the subsequent October 5, 2010 dispositional order, the minor contends that the gang conditions were “adopted in the October 5, 2010 disposition as a previous order not inconsistent with the current order....” The minor acknowledges that his challenges to the gang conditions are not properly before this court based on In re Shaun R. (2010) 188 Cal.App.4th 1129 (Shaun R.), but he argues that Shaun R. was “wrongly decided and should be reconsidered by this Court.”

The Attorney General contends that because the minor “did not object to or appeal from... identical probation conditions when they were originally imposed and continued ‘in full force and effect’ at each of [the minor’s] previous dispositional hearings, and because he did not object to the continuation of those conditions at his instant dispositional hearing, he is foreclosed from challenging them in this appeal.” The Attorney General further asserts that the minor has failed to provide a persuasive argument for rejecting the reasoning of Shaun R.

We determine that the constitutional challenges raised by the minor may not be entertained in this appeal. The minor did not appeal from the November 6, 2009 dispositional order, and that order is now final. (Shaun R., supra, 188 Cal.App.4th at pp. 1138-1139; Cal. Rules of Court, rule 8.406(a)(1).) Although the juvenile court thereafter continued in effect “[a]ll prior orders not in conflict” and “all previous Orders of the Court not inconsistent” with more recent orders, as stated in Shaun R., “[w]e do not agree that the routine continuation of a previous order without change revives the right to appeal the merits of a previous order that has become final.” (Shaun R., supra, 188 Cal.App.4th at p. 1139.) Thus, the “[a]ll prior orders” and “all previous Orders” provisions in the October 5, 2010 dispositional order did not create a right to appeal the earlier November 6, 2009 dispositional order, and we do not have jurisdiction to entertain the minor’s arguments with regard to the probation conditions contained in that earlier order. (Shaun R., supra, 188 Cal.App.4th at p. 1141.) The minor does not articulate a persuasive basis for us to depart from the reasoning in Shaun R. We also observe that the minor “is not without a remedy because he may seek modification of the [gang] condition[s] in the juvenile court. (Welf. & Inst. Code, §§ 775, 778; In re Luis F. (2009) 177 Cal.App.4th 176, 192; In re Brian K. (2002) 103 Cal.App.4th 39, 44.)” (Shaun R., supra, 188 Cal.App.4th at p. 1141.)

DISPOSITION

The October 5, 2010 dispositional order is affirmed.

I CONCUR: LUCAS, J.

Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Mihara, J., Dissenting.

I dissent from the majority’s conclusion that appellant is precluded from challenging three probation conditions that originated in a 2009 dispositional order and were incorporated into the court’s 2010 dispositional order by means of its provision that “all previous Orders of the Court not inconsistent with today’s Orders remain in full force and effect.” I dissented in In re Shaun R. (2010) 188 Cal.App.4th 1129, and I continue to hold that position.

Here, the juvenile court’s 2010 dispositional order displaced the 2009 dispositional order and incorporated the 2009 dispositional order’s probation conditions into the 2010 dispositional order. Because these probation conditions thereby became part of the 2010 dispositional order, appellant could properly challenge the validity of these incorporated probation conditions in this appeal from the 2010 dispositional order. I would find that the three challenged conditions require modifications to render them constitutional.


Summaries of

In re Francisco A.

California Court of Appeals, Sixth District
Jun 20, 2011
No. H036157 (Cal. Ct. App. Jun. 20, 2011)
Case details for

In re Francisco A.

Case Details

Full title:IN RE FRANCISCO A., a Person Coming Under the Juvenile Court Law. THE…

Court:California Court of Appeals, Sixth District

Date published: Jun 20, 2011

Citations

No. H036157 (Cal. Ct. App. Jun. 20, 2011)