In re Byron B.
Decision Date | 24 June 2004 |
Docket Number | No. E034871.,E034871. |
Citation | 119 Cal.App.4th 1013,14 Cal.Rptr.3d 805 |
Court | California Court of Appeals Court of Appeals |
Parties | In re BYRON B., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Byron B., Defendant and Appellant. |
Kathleen Bryan, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, and Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Byron B. and two juvenile accomplices stole a video game player and some "cool" shoes from an acquaintance's house. As a result, appellant was adjudged a ward of the court and placed on probation. One probation condition prohibited him from associating with anyone disapproved by a parent or probation officer. In the published portion of this opinion, we will hold that, although the juvenile court could not forbid association with any person "not approved," it could forbid association with any person "disapproved," as long as it also required that appellant know of the disapproval. We will affirm the judgment.
"NO CONTACT" PROBATION CONDITION
Appellant asserts that the juvenile court abused its discretion by imposing a probation condition prohibiting contact with any person disapproved by a parent or probation officer.
The juvenile court's oral ruling stated that appellant must "[n]ot have any direct or indirect contact with anyone disapproved by parent, guardian, probation officer or staff." Its minute order, however, recited that appellant must "[n]ot have direct or indirect contact with anyone known to be disapproved by parent(s)/guardian(s)/probation officer, staff." (Italics added.)
Appellant did not object to this condition at sentencing. The People therefore argue that he waived his challenge to it, although they acknowledge that there is contrary authority. (See In re Justin S. (2001) 93 Cal.App.4th 811, 813-815, 113 Cal.Rptr.2d 466.) This issue is presently before the Supreme Court in In re Sheena K. (2004) 116 Cal.App.4th 436, 10 Cal.Rptr.3d 444, review granted June 9, 2004, S123980. Because we come to the same result on the merits, we assume, without deciding, that the contention has not been waived.
(In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033, 100 Cal.Rptr.2d 218.)
An adult probation condition is unreasonable if (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545, fn. omitted, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290.) In addition, an adult probation condition is overbroad if it unduly restricts the exercise of a constitutional right. (People v. Delvalle (1994) 26 Cal.App.4th 869, 879, 31 Cal.Rptr.2d 725, quoting People v. Mason (1971) 5 Cal.3d 759, 768, 97 Cal.Rptr. 302, 488 P.2d 630 (dis. opn. of Peters, J.).)
However, . . . (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82, 32 Cal.Rptr.2d 33, 876 P.2d 519, quoting In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1089, 12 Cal.Rptr.2d 875 and In re Binh L. (1992) 5 Cal.App.4th 194, 203, 6 Cal.Rptr.2d 678, quoting In re Michael D. (1989) 214 Cal.App.3d 1610, 1616, 264 Cal.Rptr. 476.)
We are aware of two cases dealing with a probation condition like the one here. First, in In re Frank V. (1991) 233 Cal.App.3d 1232, 285 Cal.Rptr. 16, a gun was found in the minor's pocket. (Id. at p. 1237, 285 Cal.Rptr. 16.) One probation condition required him not to "associate with anyone disapproved of by his probation officer." (Ibid.) He challenged this condition as overbroad and as infringing his constitutional right of association. (Id. at p. 1241, 285 Cal.Rptr. 16.)
The appellate court upheld the condition. It began by noting that: (In re Frank V., supra, 233 Cal.App.3d at pp. 1242-1243, 285 Cal.Rptr. 16, quoting In re Roger S. (1977) 19 Cal.3d 921, 928, 141 Cal.Rptr. 298, 569 P.2d 1286.)
The court concluded: (In re Frank V., supra, 233 Cal.App.3d at p. 1243, 285 Cal.Rptr. 16.) (Ibid.)
Next, in In re Kacy S. (1998) 68 Cal.App.4th 704, 80 Cal.Rptr.2d 432, the challenged probation condition required the minor not to "associate with any persons not approved by his probation officer...." (Id. at p. 712, 80 Cal.Rptr.2d 432.) The court held this condition was both unreasonable and overbroad because it (Id. at p. 713, 80 Cal.Rptr.2d 432.) The court did not cite or discuss Frank V.
The crucial difference between Kacy S. and Frank V. is that the valid probation condition referred to persons "disapproved"; the invalid one referred to persons "not approved." Typically, grocery clerks, mailcarriers and health care providers have been neither approved nor disapproved. Requiring advance approval is impractical. A parent or probation officer can hardly be expected to specify all of the innocuous people with whom the minor may come into contact. Requiring advance disapproval makes the probation condition workable and saves it from overbreadth.
The probation condition here referred to persons "disapproved." Thus, Frank V. applies. The juvenile court, acting in parens patriae, could limit appellant's right of association in ways that it arguably could not limit an adult's. Appellant asserts that the condition In Frank V., however, there likewise was no evidence that the minor "routinely" associated with "bad eggs". Here, as in Frank V., there was evidence that, solely in the case before the court, appellant's misconduct had been influenced by other people. Indeed, here appellant acted in concert with two other delinquents.
So far, we have been discussing only unreasonableness and overbreadth. However, a probation condition also may be challenged as excessively vague. "...
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