In re Sheena, B167626 (Cal. App. 3/2/2004)
| Decision Date | 02 March 2004 |
| Docket Number | B167626 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re SHEENA K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SHEENA K., Defendant and Appellant, |
Appeal from an order of the Superior Court of Los Angeles County, No. KJ19106, Daniel S. Lopez, Judge. Modified in part, and affirmed in part.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Sheena K., a minor, appeals from an order declaring her a ward of the court pursuant to Welfare and Institutions Code section 602 by reason of her having committed misdemeanor battery (Pen. Code, § 242).1 The juvenile court committed appellant to the supervision of the probation officer for placement in the Camp Community Placement Program for a minimum of 14 weeks under specified terms and conditions, including that she (1) not associate with anyone disapproved of by her probation officer, (2) not use or possess dangerous or deadly weapons, and (3) not remain with any person known to be unlawfully armed. Appellant's sole contention is that these conditions are vague and overbroad, violating her federal and state constitutional rights to due process, to travel, to associate and to assemble, and must therefore be modified to require that she know the persons with whom she cannot associate and the weapons she cannot use or possess.
We conclude that the probation condition that appellant not associate with anyone disapproved of by the probation officer is unconstitutionally vague and overbroad. Accordingly, we modify the judgment and otherwise affirm.
On September 26, 2002, at approximately 5:30 p.m., appellant returned to a table in the dining facility, at Maclaren Childrens Center, in El Monte, where she had been sitting, and found that Diane N. had sat down at that table. Appellant demanded that Diane give up her seat, but she refused. Julie Nwosu, a children's social worker (CSW) employed at Maclaren, told Diane to remain in her seat and appellant to change tables if she did not wish to sit with Diane. Appellant remained in her seat. Appellant and Diane began yelling at each other, calling each other names. Appellant poured salad dressing on Diane's hair and face.
Carla Coleman, another CSW employed at Maclaren, told appellant to move away from Diane, who was Coleman's "one on one."2 Appellant and Coleman did not get along, and group leaders had told them to stay away from each other. Appellant walked up to Coleman, pointed her finger at her, began calling her names such as "fat bitch" and "yellow bitch," and told her to, "Get your ass out of my face." Coleman lost her footing and shoved appellant. Appellant responded by punching Coleman in the face and pulling her hair. Coleman and Nwosu restrained appellant.
Appellant's version of events differed. She testified that she was standing, and Coleman approached her to tell her to leave Diane alone, pushing her against a wall where she hit her head. Appellant pushed Coleman back, and they grabbed each other. Coleman hit appellant with her left fist, cutting appellant's lip. Appellant denied calling Coleman names, hitting her or pulling her hair. She only pushed her and yanked her arm from Coleman's grip.
The juvenile court found appellant to be a person described in section 602 of the Welfare and Institutions Code and placed her in the Camp Community Placement Program under the supervision of a probation officer subject to the probation conditions announced by the court at the dispositional hearing, including that (1) she (2) she "not use or possess any dangerous or deadly weapons"; and (3) she "not remain with anyone [she] know[s] is unlawfully armed."3 She did not object to any of these conditions in the trial court.
Appellant contends that these conditions are unconstitutionally overbroad. She argues that the conditions that she not associate with anyone disapproved by her probation officer or anyone "unlawfully armed" infringe on her freedom of association, right to travel and right to assemble. She also argues that the condition that she not use or possess a deadly or dangerous weapon is unconstitutionally vague because it cannot reasonably be determined what objects constitute such weapons. She urges that these conditions must provide that she have knowledge of whom the probation officer disapproves, who is unlawfully armed and what is a deadly or dangerous weapon.
Respondent contends that because appellant did not object to these conditions in the juvenile court, she waived her appellate challenge to them. It argues that, in any event, "[r]easonably read, `do not associate with anyone disapproved by probation' implies that the person appellant is to refrain from associating [sic] has already been disapproved by probation, and that appellant is aware of the disapproval."
Our Supreme Court has indicated that constitutional objections must be interposed in the trial court in order to preserve them for appeal. (See People v. Williams (1997) 16 Cal.4th 153, 250.) The purpose of this waiver doctrine "`is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. . . .'" (People v. Walker (1991) 54 Cal.3d 1013, 1023.)
In People v. Welch (1993) 5 Cal.4th 228 (Welch) the California Supreme Court applied the waiver doctrine to challenged conditions of probation. There, the defendant was sentenced to probation on the terms and conditions in the probation report. The defendant failed to object in the trial court to the conditions. On appeal, the defendant urged that the conditions were improper on Bushman/Lent grounds4 and that his failure to object in the trial court did not preclude appellate review because the type of error constituted an "`unauthorized sentence,'" entered "`in excess of jurisdiction'" and thus could be raised at any time. (Id. at p. 235.) The Supreme Court held that the failure to timely challenge the reasonableness of a probation condition on Bushman/Lent grounds waived the claim on appeal because a timely objection discouraged imposition of invalid conditions and reduced costly appeals brought on that basis. (Ibid.) It excluded from this general waiver rule claims challenging probation conditions involving "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." (Ibid.) Thus, Welch dealt with unreasonable and inappropriate conditions that should not have been imposed because they failed to relate to the defendant's offense, did not relate to future criminality and regulated non-criminal conduct.
Our colleagues in Division Four of this court, in In re Justin S. (2001) 93 Cal.App.4th 811 (Justin S.), had occasion to consider the application of Welch to a minor's failure to object in the trial court to a probation condition that a defendant not "`associate with any gang members and anyone disapproved of by parent(s) . . . .'" (Justin S., at p. 813.) On appeal, the minor challenged the condition as vague and overbroad. The Court of Appeal concluded that while the Welch holding applied to juvenile proceedings, it was limited to probation conditions challenged on the ground that they were unreasonable. Welch did not apply to the condition with which it was faced which was a "`pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court'" (Justin S., at pp. 814-815, quoting from Welch, supra, 5 Cal.4th at p. 235) and thus did not require a prior objection to the condition in the trial court.
We conclude that the claims asserted here have not been waived because, similar to Justin S., they present pure questions of law that can be resolved without regard to the sentencing record in the trial court and are not therefore within the waiver rule announced in Welch. Furthermore, unlike in Welch, appellant does not contend that the probation conditions are unreasonable under Bushman/Lent and therefore improperly imposed. Rather, she does not dispute the propriety of the subject matter of the conditions but only claims that they must be modified so as not to infringe on her constitutional rights.
Respondent's reliance on In re Josue S. (1999) 72 Cal.App.4th 168 is misplaced. In that case, the Court of Appeal found Welch controlling because the probation condition involved was challenged on the ground that it bore no reasonable relationship to the facts underlying the wardship, a Bushman/Lent ground. This was the very type of challenge that Welch concluded required objection in the trial court to preserve for appeal. That is not the type of challenge mounted here.
Validity of conditions.
The trial court has broad discretion to impose conditions on probation. (§ 1203.1.) Section 1203.1, subdivision (j) provides in part: "The court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer, . . ."
But the trial court's discretion is not boundless. (People v. Garcia (1993) 19 Cal.App.4th 97, 101.) ...
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