In re Sheena K., S123980.

• Court: United States State Supreme Court (California)
• Citation: 55 Cal.Rptr.3d 716,153 P.3d 282,40 Cal.4th 875
• Decision Date: 15 March 2007
• Docket Number: No. S123980.,S123980.
• Parties: In re SHEENA K., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Sheena K., Defendant and Appellant.

55 Cal.Rptr.3d 716 40 Cal.4th 875 153 P.3d 282 In re SHEENA K., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Sheena K., Defendant and Appellant. No. S123980. Supreme Court of California. March 15, 2007.

[55 Cal.Rptr.3d 718]

Edward H. Schulman, Los Angeles, under appointment by the Supreme Court, and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte, Donald E. De Nicola, Jamie L. Fuster and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Sheena K., defendant, was convicted of misdemeanor battery and, pursuant to Welfare and Institutions Code section 602, was adjudicated a ward of the juvenile court. In its disposition, the juvenile court ordered that defendant be placed on probation subject to a variety of conditions, including that she "not associate with anyone disapproved of by probation." Although defendant did not object in the juvenile court to any of the conditions of probation imposed, on appeal she contended that the probation condition restricting her association with other persons was vague and overbroad, violating her rights under the First and Fifth Amendments to the federal Constitution.

In declining to apply the doctrine of forfeiture on appeal and deciding minor's constitutional claim notwithstanding her failure to object on that ground in the juvenile court, the Court of Appeal joined a conflict that exists among the Courts of Appeal with respect to the applicability of that doctrine to challenges made upon constitutional grounds to a condition of probation. Having concluded on the merits that the probation condition imposed in the

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present case is unconstitutionally vague and overbroad in its literal wording, the Court of Appeal added the requirement that defendant have knowledge that the probation officer disapproved of a particular associate, and upheld the condition as so modified.

We granted review to resolve the conflict among appellate decisions concerning whether the doctrine of forfeiture or waiver applies to a challenge to a condition of probation, raised for the first time on appeal, when the challenge is based on the ground the condition is vague or overbroad and thus facially unconstitutional. In addition, we directed the parties to brief the issue whether defendant's probation condition requiring that she not associate with anyone "disapproved" of by "probation" is vague or overbroad and thus violates defendant's constitutional rights.

As we shall explain, we conclude that defendant's constitutional challenge to her probation condition was not forfeited despite her failure to object on the foregoing ground at the time the condition was imposed by the juvenile court. In addition, we conclude that, as imposed by the juvenile court, the probation condition is unconstitutionally vague, but as modified by the Court of Appeal, the condition satisfies federal constitutional requirements. For a different reason, however, we do not have cause to affirm the judgment rendered by the appellate court.

Recently we were informed that Sheena, who was born on June 16, 1986, died on or about June 2, 2006. Although her death renders the People's appeal technically moot (In re Jackson (1985) 39 Cal.3d 464, 468, fn. 3, 216 Cal.Rptr. 760, 703 P.2d 100; see People v. Dail (1943) 22 Cal.2d 642, 659, 140 P.2d 828), we have exercised our inherent authority to retain this case for argument and opinion in order to resolve the conflict that has arisen in the Courts of Appeal with regard to the first issue, and in view of the recurring nature of both issues. (People v. Anzalone (1999) 19 Cal.4th 1074, 1076, 81 Cal. Rptr.2d 315, 969 P.2d 160; In re Jackson, supra, 39 Cal.3d at p. 468, fn. 3, 216 Cal. Rptr. 760, 703 P.2d 100; see People v. Mancheno (1982) 32 Cal.3d 855, 859, fn. 1, 187 Cal.Rptr. 441, 654 P.2d 211; In re William M. (1970) 3 Cal.3d 16, 23-25, 89 Cal.Rptr. 33, 473 P.2d 737.)

I

At approximately 5:30 p.m. on September 26, 2002, defendant Sheena K. was in the dining facility at the MacLaren Children's Center in El Monte. Defendant observed that Diana N., whom she did not like, was seated at the same table and demanded that Diana leave. When Diana refused, Children's social worker Julie Nwosu intervened, instructing Diana to stay in her seat and defendant to change tables. Defendant refused to leave, engaged in yelling and name-calling with Diana, and poured salad dressing on Diana's hair and face.

Children's Center social worker Carla Coleman, whom defendant also did not like, directed defendant to move away from Diana. Defendant approached Coleman, pointing her finger and calling Coleman names. Coleman lost her footing and shoved defendant, who punched Coleman in the face and pulled her hair before being restrained.

According to defendant, Coleman approached, told defendant to leave Diana alone, and pushed defendant against a wall, causing her to hit her head. After defendant pushed Coleman, they grappled and Coleman hit defendant with her fist, cutting defendant's lip. Defendant denied that she called Coleman names, hit her, or pulled her hair, but admitted that she

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pushed Coleman and freed herself from Coleman's grip.

The juvenile court found that defendant committed misdemeanor battery (Pen. Code § 242) and, based on that offense, determined defendant to be a ward of the court (Welf. & Inst.Code § 602). The juvenile court placed defendant on probation in the Camp Community Placement Program, subject to 15 terms and conditions, including that defendant not "associate with anyone disapproved of by probation." The written form probation order specified that defendant not associate with anyone disapproved of by "Probation Officer."

On appeal, defendant asserted that in failing to specify that defendant know which persons were disapproved of by her probation officer, the probation condition was unconstitutionally vague or overbroad. In response, the Attorney General urged that defendant had failed to raise the issue in juvenile court and thus had forfeited the claim for purposes of appeal. Having concluded that defendant did not forfeit the constitutional claim on appeal and that the probation condition was vague and overbroad under the Fifth Amendment, the Court of Appeal modified the dispositional order to require that defendant refrain from associating with anyone whom she knew was disapproved of by her probation officer, and in other respects affirmed the order. We granted the Attorney General's petition for review.

II A

Before determining whether the rule of forfeiture or waiver applies in the present context, we briefly review the nature and purpose of that rule.¹ Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. (Simon, supra, 25 Cal.4th at p. 1097, 108 Cal.Rptr.2d 385, 25 P.3d 598; People v. Smith (2001) 24 Cal.4th 849, 852, 102 Cal. Rptr.2d 731, 14 P.3d 942 (Smith).) As the United States Supreme Court recognized in United States v. Olano, supra, 507 U.S. at page 731, 113 S.Ct. 1770, "`[n]o procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, `may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'" (See S.B., supra, 32 Cal.4th at p. 1293, 13 Cal.Rptr.3d 786, 90 P.3d 746; 6 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Reversible Error, § 36, pp. 495-497; see also 9 Witkin, Cal. Procedure (4th ed.1997 & 2006 supp.) Appeal, §§ 394, 398 [applying the forfeiture rule in civil matters except as to questions of law and matters of public interest].) "The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]"

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(S.B., at p. 1293, 13 Cal.Rptr.3d 786, 90 P.3d 746; Smith, at p. 852,102 Cal.Rptr.2d 731, 14 P.3d 942; Saunders, supra, 5 Cal.4th at pp. 590-592, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)²

In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a "`discretionary sentencing choice[ ].'" (People v. Gonzalez (2003) 31 Cal.4th 745, 751, 752, 3 Cal.Rptr.3d 676, 74 P.3d 771; Smith, supra, 24 Cal.4th at p. 852, 102 Cal.Rptr.2d 731, 14 P.3d 942; People v. Scott (1994) 9 Cal.4th 331, 351-354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (Scott) [when the trial court fails to make or properly articulate a discretionary sentencing choice, the defendant must object in order to preserve the claim on appeal]; People v. Tillman (2000) 22 Cal.4th 300, 302-303, 92 Cal.Rptr.2d 741, 992 P.2d 1109 (Tillman) [when the trial court fails to articulate reasons for not imposing a restitution fine, a decision that constitutes a discretionary sentencing choice, the People must object if their claim is to be preserved].)

In their conflict over application of the forfeiture rule to defendant's claim on appeal that her probation condition was unconstitutionally vague or overbroad, the parties in the present case, as well as the decisions of the Courts of Appeal, focus upon our decision in People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802 (Welch). In Welch, the adult defendant was convicted of welfare fraud and placed on conditional probation. Based upon then-existing law permitting initial challenge of probation conditions on appeal, she asserted that several conditions were unreasonable and inappropriate...