D.W. (In re D.W.)

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A153095 (Cal. Ct. App. Nov. 6, 2018)



In re D.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.W., Defendant and Appellant.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JW17-6202)

This is an appeal from the dispositional order entered after the juvenile court sustained allegations that minor D.W. (minor) committed robbery, assault, driving without a valid driver's license, giving false identifying information to a peace officer, and petty theft. Pursuant to the dispositional order, minor was placed on probation subject to various terms and conditions, including that his probation officer would be authorized to require him to wear an electronic GPS tracking device to monitor his whereabouts. On appeal, minor challenges this condition of probation as an illegal delegation of the trial court's authority to the probation officer. For reasons set forth below, we affirm the order.


On August 3, 2017, an amended juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602 (petition), alleging that minor committed robbery (Pen. Code, § 211) and assault with force likely to cause great bodily injury against a public transit employee (§ 245.2). After a contested hearing, the juvenile court found true the robbery count, as well as a simple assault count as the lesser included offense of the original assault count. On August 24, 2017, the matter was transferred from the City and County of San Francisco to Stanislaus County, where minor's mother lived, for disposition.

Unless otherwise stated, all statutory citations herein are to the Penal Code.

Meanwhile, on August 16, 2017, a separate petition was filed in Stanislaus County alleging minor had driven under the influence (DUI) of marijuana (Veh. Code, § 23152, subd. (f)), driven without a valid driver's license (id., § 12500, subd. (a)), and given false identifying information to a peace officer (Pen. Code, § 148.9, subd. (a)). The latter two counts were sustained following minor's admission, and the DUI count was dismissed. The juvenile court then transferred the matter back to San Francisco, minor's mother's new place of residence, for disposition.

On October 12, 2017, a third petition was filed, in San Francisco, alleging minor had committed petty theft (§ 490.2, subd. (a)). Minor admitted committing the offense, and the juvenile court sustained the allegation.

Thus, on November 21, 2017, a dispositional hearing was held on all three petitions. The juvenile court decided to place minor on probation subject to various terms and conditions, including one granting the probation department authority to subject him to GPS monitoring. This timely appeal followed.

The facts upon which the three petitions are based are not relevant to the one legal issue raised by minor on appeal. Accordingly, we do not set them forth herein. --------


Minor challenges the following condition of his probation as an illegal delegation of the juvenile court's authority to the probation department: "DPO [probation officer] granted right to attach or remove GPS electronic monitoring device." Prior to issuing this order, the juvenile court explained at the dispositional hearing that, if minor was not "meeting the expectations of [his] probation officer," the officer could put on the monitoring device if the officer "find[s] that that's necessary."

Generally speaking, where a juvenile court places a minor on probation following the minor's commission of a crime, 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).) " 'Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation. "A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court." [Citation.] "[I]n planning the conditions of [minor's] supervision, the juvenile court must consider not only the circumstances of the crime but also the minor's entire social history. [Citations.]" [Citation.]' [Citations.] 'Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation].' [Citations.] But every juvenile probation condition must be made to fit the circumstances and the minor." (In re Binh L. (1992) 5 Cal.App.4th 194, 203.)

Thus, "[a] condition of probation 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 . . . .' [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.) "A probation condition must also be reasonable in relation to the seriousness of the offense." (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.)

We review de novo whether the juvenile court's imposition of a probationary term amounts to an unlawful delegation of its authority in violation of the separation of powers clause set forth in the California Constitution, article III, section 3. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314; People v. Cruz (2011) 197 Cal.App.4th 1306, 1308.) Further, a challenge to the constitutionality of a probation condition may, at the court's discretion, be raised for the first time on appeal (as it was here). (In re Sheena K. (2007) 40 Cal.4th 875, 885, 888 [recognizing an exception to the forfeiture rule where a facial constitutional challenge presents a pure question of law and is "easily remediable on appeal by modification of the condition . . . not requiring additional factual findings"].)

Minor contends the GPS monitoring condition of his probation is unlawful because it gives sole discretion to the probation department to decide whether, and for how long, to place an electronic GPS tracking device on him. As minor notes, "[i]t is well settled that courts may not delegate the exercise of their discretion to probation officers." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372.)

However, it is also settled law that a juvenile court may delegate to the probation officer the authority to supervise a minor's behavior, including the authority to discharge the obligations imposed by the court's probation order in order to further the minor's rehabilitation. (In re Victor L. (2010) 182 Cal.App.4th 902, 918-919.) " 'Because the probation . . . officer's function is not so much to compel conformance to a strict code of behavior as to supervise a course of rehabilitation, [the officer] has been entrusted traditionally with broad discretion to judge the progress of rehabilitation in individual cases, and has been armed with the power to recommend or even to declare revocation.' " (Cabell v. Chavez-Salido (1982) 454 U.S. 432, 446-447.)

Here, we conclude the juvenile court acted within its discretion in imposing the GPS monitoring condition as part of minor's probation. In so concluding, we begin by acknowledging that, in distinguishing between permissible and impermissible delegations of authority to a probation officer by the court, the case law suggests certain limitations. First, for obvious reasons of due process, a juvenile court must not delegate to probation the authority to, in effect, create and impose a new term of probation that was not expressly authorized or considered by the juvenile court. (In re Pedro Q., supra, 209 Cal.App.3d at pp. 1372-1373; accord, People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358 [probation condition invalid where, "although the court authorized the probation officer to designate those with whom defendant could not associate, it did not in any way define the class of persons who could be so designated. While the court may well have anticipated that the probation officer would specify individuals known to be using or dealing in illicit drugs, . . . 'this factor should not be left to implication' "].) Second, the court's delegation of authority to the probation officer may not "be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation." (People v. O'Neil, supra, at p. 1359.) And, in addition, it is for the court, not the probation department, to ensure that each probation condition is tailored to the specific needs of the minor. (In re Pedro Q., supra, at p. 1372.)

Returning to the matter at hand, we agree with the People that the GPS monitoring condition does not run afoul of these principles. Significantly, this condition does not empower minor's probation officer to create and impose a new condition not expressly authorized by the court; rather, the juvenile court has already found the GPS monitoring condition reasonable in minor's case, and has only left to the probation officer the power to decide based on minor's performance on probation when, if ever, such monitoring is necessary for his rehabilitation. (People v. Cruz, supra, 197 Cal.App.4th at p. 1310; cf. In re Jose R. (1982) 137 Cal.App.3d 269, 278, 280 [upholding the following probation condition requiring submission to random drug testing and searches by probation or police: "You shall consent to any tests to determine narcotic or dangerous drug usage and consent to a search of your person, that portion of your residence where you customarily sleep, your vehicle, or any other possessions at any time, by a probation officer or any peace officer for dangerous drugs, narcotics & weapons"].)

Further, the condition in this case is not "entirely open-ended" (see People v. O'Neil, supra, 165 Cal.App.4th at p. 1359); rather, it merely, and appropriately, reserves to the probation officer the authority to implement GPS monitoring if necessary to ensure adequate supervision of minor's rehabilitation. (In re Victor L., supra, 182 Cal.App.4th at p. 919.) Moreover, as the People note, minor may return to the juvenile court with a petition to modify the terms of his probation or, if he is charged with violating this condition of his probation, minor may challenge the alleged violation on the ground that the condition is unnecessary or has been arbitrarily imposed. (Welf. & Inst. Code, § 775 ["Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article"]; id., § 778; see People v. Penoli (1996) 46 Cal.App.4th 298, 308 [declining to hold a delegation of authority to probation officer improper where, inter alia, "defendant can seek judicial intervention—by moving to modify the probation order, if nothing else—if and when the probation officer seeks to exercise the delegated authority"].)

And finally, this condition is undoubtedly reasonably tailored to minor's specific circumstances, given that the record reflects he has previously violated his probation by failing to abide by the condition that he reside at the home of his paternal grandfather in San Leandro.

Accordingly, we conclude on this record that the juvenile court's condition authorizing minor's probation officer to require him to wear an electronic GPS monitoring device is a reasonable condition designed to enable the probation department to supervise minor's compliance with the other conditions of his probation. (See People v. Kwizera, supra, 78 Cal.App.4th at pp. 1240-1241 [upholding a condition requiring probationer to "follow such course of conduct as the probation officer prescribes" where the condition was "reasonable and necessary to enable the department to supervise compliance with the specific conditions of probation"].) Accordingly, the GPS monitoring condition stands.


The juvenile court's order of November 21, 2017, is affirmed.


Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Pollak, J.

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