In re Justin S., B148299.

• Court: California Court of Appeals
• Writing for the Court: Hastings
• Citation: 93 Cal.App.4th 811,113 Cal.Rptr.2d 466
• Parties: In re JUSTIN S., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Justin S., Defendant and Appellant.
• Docket Number: No. B148299.,B148299.
• Decision Date: 06 November 2001

113 Cal.Rptr.2d 466 93 Cal.App.4th 811 In re JUSTIN S., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Justin S., Defendant and Appellant. No. B148299. Court of Appeal, Second District, Division 4. November 6, 2001.

[113 Cal.Rptr.2d 467]

[93 Cal.App.4th 812]

Ellen M. Matsumoto, Gardena, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Marc E. Turchin, Acting Senior

[113 Cal.Rptr.2d 468]

Assistant Attorney General, Kenneth C. Byrne and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

HASTINGS, J.

Juvenile offender challenges two conditions of probation. Conceding that he made no objection to them in the juvenile court, he contends that the issue is not waived, invoking our opinion in In re Tanya B. (1996) 43 Cal.App.4th 1, 50 Cal. Rptr.2d 576. We reexamine and overrule Tanya B., but nevertheless conclude that there has been no waiver under the circumstances of this case.

BACKGROUND

Justin S. appeals from orders declaring him a ward of the juvenile court after the court sustained a petition pursuant to Welfare and Institutions Code

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section 602, alleging that he had committed second degree robbery in violation of Penal Code section 211, by kicking and beating another boy with the help of a companion, who took money from the boy. At disposition, the juvenile court placed appellant on probation, and among other conditions, including house arrest, ordered appellant not to "engage in any delinquent behavior," or to "associate with any gang members and anyone disapproved of by parent(s)/P.O." The juvenile court invited comment, but appellant's counsel objected only to the imposition of house arrest.

DISCUSSION

Appellant challenges the conditions of probation imposed by the juvenile court, claiming that condition numbers 6 and 15, quoted above, are vague and overbroad. Appellant relies upon In re Tanya B., in which we held that a minor may challenge conditions of probation for the first time on appeal. (See 43 Cal.App.4th at p. 4, 50 Cal.Rptr.2d 576.) Respondent, on the other hand, asks that we reexamine Tanya B., in light of criticism by Division One of the Fourth District Court of Appeal in In re Abdirahman S. (1997) 58 Cal.App.4th 963, 970, 68 Cal.Rptr.2d 402, and Division Five of this District in In re Josue S. (1999) 72 Cal.App.4th 168, 171-172, 84 Cal.Rptr.2d 796.

In Tanya B., we recognized that in People v. Welch (1993) 5 Cal.4th 228, 233-234, 19 Cal.Rptr.2d 520, 851 P.2d 802, the Supreme Court held that a defendant may not complain of the unreasonableness of conditions of probation for the first time on appeal. (In re Tanya B., supra, 43 Cal.App.4th at p. 5, 50 Cal.Rptr.2d 576.)¹ We distinguished Welch, however, finding that it was not applicable to a juvenile court disposition. (In re Tanya B., supra, at p. 5, 50 Cal.Rptr.2d 576.) Instead, we relied upon In re Tyrell J. (1994) 8 Cal.4th 68, 82, 32 Cal.Rptr.2d 33, 876 P.2d 519, in which the Court held that a juvenile offender, unlike an adult, can neither refuse nor consent to a grant of probation. (In re Tanya B., supra, 43 Cal.App.4th at p. 5, 50 Cal.Rptr.2d 576.)

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Division One of the Fourth District Court of Appeal found our reliance on Tyrell J. misplaced, explaining: "In Tyrell J. the issue was not waiver but whether a probation search condition constituted the minor's consent to a warrantless search by an officer unaware of the condition... . Tanya B.

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appears to equate lack of consent with failure to object. In fact, the concepts are quite separate. That a minor in the last instance has no choice but to accept and abide by conditions of probation does not mean that the minor may not object to imposition of those conditions." (In re Abdirahman S., supra, 58 Cal. App.4th at p. 970, 68 Cal.Rptr.2d 402.) We agree. Indeed, the Supreme Court commented in Tyrell J. that "[a] minor can, of course, object to particular conditions of probation as improper or unwarranted. [Citations.]" (In re Tyrell J., supra, 8 Cal.4th at p. 83, fn. 3, 32 Cal.Rptr.2d 33, 876 P.2d 519.)

The criticism of Tanya B. by Division Five of this court included the observation that in reaching its conclusion in Welch that an objection must be interposed in the trial court, the Supreme Court expressly disapproved a number of Court of Appeal cases that had held to the contrary, including a juvenile case. (See In re Josue S., supra, 72 Cal.App.4th at p. 171, 84 Cal. Rptr.2d 796, citing People v. Welch, supra, 5 Cal.4th at p. 237, 19 Cal.Rptr.2d 520, 851 P.2d 802, disapproving In re Jason J. (1991) 233 Cal.App.3d 710, 714, 284 Cal. Rptr. 673.)

We find the criticism of Tanya B. persuasive, and are satisfied that the Supreme Court intended its holding in Welch to extend to juvenile proceedings. We therefore accept respondent's invitation to revisit the issue, overrule our prior opinion in Tanya B., and hold that to preserve for appeal the issue of the reasonableness of a condition of probation, a juvenile offender must object to it in the juvenile court, unless some exception applies to excuse the failure to object. (See People v. Welch, supra, 5 Cal.4th at p. 237, 19 Cal. Rptr.2d 520, 851 P.2d 802.)

Although we have concluded that Welch's waiver rule applies to juvenile dispositions, we still must determine whether it applies to this case. Appellant does not contend that he comes within the exception articulated in Welch, "where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]" (Welch, supra, 5 Cal.4th at pp....