In re Luis F.

• Decision Date: 31 August 2009
• Docket Number: No. A123599.,A123599.
• Citation: 99 Cal. Rptr. 3d 174,177 Cal.App.4th 176
• Court: California Court of Appeals Court of Appeals
• Parties: In re LUIS F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LUIS F., Defendant and Appellant.

177 Cal.App.4th 176

99 Cal. Rptr. 3d 174

In re LUIS F., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. LUIS F., Defendant and Appellant.

No. A123599.

Court of Appeals of California, First District, Division Two.

August 31, 2009.

CERTIFIED FOR PARTIAL PUBLICATION^*

Scott D. Handleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Martin S. Kaye, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RICHMAN, J.

INTRODUCTION

Luis F. appeals from a disposition declaring him a ward of the court under Welfare and Institutions Code section 602¹ based on his attempted second degree robbery (Pen. Code, §§ 211, 664) of a fellow high school student. After a contested hearing, the juvenile court found Luis had committed the crime and placed him on probation.

Luis claims there was insufficient evidence to support the finding that he had attempted a robbery, claiming instead that it was an attempted theft from the person, followed by a battery. He further claims that one of the conditions of probation—that he continue to take prescribed medications—is unlawful and must be stricken. We modify the judgment by clarifying that Luis must continue to take only those medications prescribed for depression and social anxiety disorder. Otherwise we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 25, 2008, 17-year-old Luis was caught on his high school campus with an ecstasy pill and cited for a misdemeanor violation of Health and Safety Code section 11377, subdivision (a). He was taken to the office, where he was expelled from school.

While unsupervised, he wandered back onto campus and entered a restroom, where he encountered another student, Colin S., whom he had not known previously. He demanded money from Colin, who told him he did not have any money. Luis then told Colin to empty his pockets. Colin complied pulling out a cell phone and an MP3 player. Luis then demanded that Colin give him the MP3 player, but Colin refused, putting it back into his pocket.

Luis then punched Colin in the face. Colin responded by attempting to tackle Luis. The two boys fought, eventually moving out of the bathroom and onto the campus grounds. Colin took Luis to the ground at some point, and Luis tried to get Colin off of him. The fight continued until it was broken up by teachers and Fairfield Police Officer Larry Banks, the school resource officer. Colin sustained some superficial scratches and swelling as a result of the fight. Luis did not obtain any property from Colin.

Officer Banks escorted the boys to the office and questioned them separately. After Colin told Officer Banks that Luis had tried to rob him, the officer confronted Luis with this accusation. Officer Banks told Luis that Colin said Luis had "attempted to take property from him by force." After waiving his Miranda rights,² Luis admitted that he had tried to rob Colin because he needed money to repay some loans. He was taken into custody, and a section 602 petition was filed the next day.³

On October 20, 2008, following a contested jurisdictional hearing, Luis was found to have committed an attempted robbery. At the dispositional hearing on November 10, 2008, Luis was adjudged a ward of the court under section 602. He was placed on probation, but was allowed to remain in his parents' home under the supervision of the probation officer. The terms of probation included, as pertinent to this appeal, that Luis was to "continue taking prescribed medications, as directed." More specifically, the juvenile court said, "I want you to continue to follow the directions of your doctors and counselors and this includes the taking of medication as prescribed."

The probation department reports noted that Luis had been diagnosed with depression and social anxiety disorder two years prior to the attempted robbery, that he had been in psychological counseling ever since, and that he was taking Prozac and Klonopin for his mental health conditions. Luis met with his doctors on a monthly or bimonthly basis to review his prescriptions and dosages. Luis's social anxiety disorder had led him to isolate himself, refusing to attend school or go out with his family. He believed he was not accepted by his peers, and that led to depression. Both he and his father expressed the opinion that his mental difficulties contributed to his poor school performance. "However, Luis believes that his current medication is effective and has allowed him to excel academically."

DISCUSSION

I. The Evidence Was Sufficient to Sustain a Finding That Luis Committed Attempted Robbery.^*

II. The Condition of Probation Requiring Luis to Take All Prescribed Medications Applies Only to His Continuing to Take Medications Prescribed for Depression or Social Anxiety Disorder, and As So Construed Is Lawful.

Luis also claims the condition of probation requiring him to continue taking medications prescribed by his doctor is unconstitutionally vague and overbroad under both the state and federal Constitutions. Luis relied in his opening brief on a Sixth District case which, he acknowledges, has since been ordered depublished by the Supreme Court. We therefore place no reliance on that case.

(1) We note at the outset that defense counsel registered no objection to the medication requirement. Whether the issue has been preserved for appeal is governed by In re Sheena K. (2007) 40 Cal.4th 875, 890 [55 Cal.Rptr.3d 716, 153 P.3d 282] (Sheena K.), in which the Supreme Court concluded that the failure to object to a condition of probation does not necessarily avoid the normal rule of forfeiture on appeal simply because it involves a constitutional challenge on grounds of vagueness or overbreadth. (Id. at pp. 886-887.) A challenge on such grounds is forfeited by failure to object unless the error is one that is "capable of correction without reference to the particular sentencing record developed in the trial court." (Id. at p. 887.) In the latter circumstance, such a claim may "present a pure question of law" properly addressed on appeal, even if there was no objection below. (Ibid.)

In Sheena K., the minor claimed for the first time on appeal that a probation condition prohibiting association with persons disapproved of by the probation department was unconstitutionally vague and overbroad because it did not convey to the minor knowledge of who was disapproved, nor did it require her to know that a person was disapproved before she could be found in violation of probation for associating with that person. (Sheena K., supra, 40 Cal.4th at p. 879.) Our Supreme Court resolved the minor's claim on the merits because it was not necessary to review the underlying facts and circumstances, but only to consider "abstract and generalized legal concepts." (Id. at p. 885.) It held that the condition of probation was unconstitutionally vague, but that the defect could be rectified by modifying the condition so that it applied only to persons known by the minor to be disapproved of by probation. (Id. at pp. 890-892.)

Luis claims that the medication requirement is vague and overbroad both on its face and as applied. Unlike the defect in Sheena K., the alleged defects in the medication requirement here cannot be determined or potentially corrected based on abstract and generalized legal principles. The court ordered Luis to "continue" to take prescribed medications, not more broadly to "take" any and all prescribed medications. Thus, the scope of the medication requirement, and its constitutionality, can be determined only in light of the facts and circumstances disclosed in the record regarding the medications that Luis had been taking prior to the court order. Under the holding of Sheena K., Luis's objection would appear to have been forfeited, despite his labeling it in part a facial challenge.

Moreover, we are unwilling to reach the merits by finding that counsel's failure to object constituted ineffective assistance, as Luis urges us to do. The Supreme Court has "repeatedly stressed `that "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citation.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)

The record shows that Luis and his father agreed to the terms of the plan recommended by the probation department, although it is not clear whether they specifically agreed to the medication requirement.⁵ Still, Luis's cooperative attitude and the fact that he was already taking psychotropic medications on a voluntary basis, as well as his own assessment that the medications were helping him, may have influenced the attorney's decision not to object. Indeed, Luis may have instructed his attorney not to object. (See Strickland v. Washington (1984) 466 U.S. 668, 691 [80 L.Ed.2d 674, 104 S.Ct. 2052] ["The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions."].) While it may have been the better practice at least to request clarification of the medication condition, counsel may have believed the scope of the medication requirement was evident in light of the probation report. On the record before us, we cannot say that counsel's conduct fell below an objectively reasonable standard of professional performance.

(2) Nevertheless, we are troubled by the breadth of the medication requirement as stated by the juvenile court—if given too literal an interpretation—because it potentially implicates important constitutional rights. The underpinning of Luis's constitutional argument is that the medication requirement...