Jason J., In re, E007940

• Court: California Court of Appeals
• Citation: 284 Cal.Rptr. 673,233 Cal.App.3d 710
• Decision Date: 22 August 1991
• Docket Number: No. E007940,E007940
• Parties: In re JASON J., A Person Coming Under the Juvenile Court Law. PEOPLE of the State of California, Plaintiff and Respondent, v. JASON J., Defendant and Appellant.

Page 673

284 Cal.Rptr. 673

233 Cal.App.3d 710

In re JASON J., A Person Coming Under the Juvenile Court Law.

PEOPLE of the State of California, Plaintiff and Respondent, v. JASON J., Defendant and Appellant.

No. E007940.

Court of Appeal, Fourth District, Division 2, California.

Aug. 22, 1991.

Review Denied Oct. 30, 1991.

Appellate Defenders, Inc. and [233 Cal.App.3d 713] Carmela F. Simoncini, under appointment by the Court of Appeal, San Diego, for minor.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Janelle B. Davis, Supervising Deputy Atty. Gen., and Jeffrey J. Koch, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

DABNEY, Acting Presiding Justice.

On March 27, 1990, a petition was filed alleging that minor Jason J. came within the provisions of Welfare and Institutions Code section 602. ¹ The petition charged minor with robbery (Pen.Code, § 211) with a special allegation that a principal was armed with a firearm in the commission of the offense (Pen.Code, § 12022, subd. (a)). Minor admitted the robbery, and on the People's motion, the court dismissed the firearm allegation.

At the disposition hearing on April 13, 1990, minor was declared a ward of the court (§ 602) and placed in the custody of his parents. His probation included the following conditions, among others: to submit to urine testing at the request of the probation officer; to be home every evening by dark unless accompanied by his parents; and not to leave his residence before 6 a.m. except to go to work or school or to obtain emergency medical treatment. The probation order also required minor's parents to perform certain conditions: to cooperate with the probation officer and consult with him on request, to become involved with minor in a counseling program at the probation officer's direction and to become involved in an Alcoholics Anonymous (AA) program.

On appeal, minor contends that the conditions of probation requiring performance by his parents and those requiring him to be inside by dark and submit to urine testing were invalid.

FACTS

Minor and several companions planned the robbery of a pizza delivery man. One of the boys ordered some pizzas, and when the delivery man arrived, the group approached the car. One of them opened the driver's door, and another, holding a sawed-off shotgun or rifle, opened the passenger door and demanded that the delivery man give them his money and the pizzas. The group took five pizzas, delivery bags and a money changer; the loss totalled $167.44.

DISCUSSION

Waiver of Objections. The People argue that minor waived objection to the conditions of his probation by failing to object at the disposition hearing. This court recently ruled that a failure to object to conditions of probation is not a waiver of a challenge to invalid conditions. (People v. Kiddoo (1990) 225 Cal.App.3d 922, 925-928, 275 Cal.Rptr. 298; accord, People v. Hernandez (1991) 226 Cal.App.3d 1374, 1377, 277 Cal.Rptr. 444.) We decline to reconsider our ruling.

Review of Probation Conditions. The juvenile court has broad discretion in formulating conditions of probation. (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153, 244 Cal.Rptr. 254.) "The court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (§ 730.) In planning such conditions, " 'the juvenile court must consider not only the circumstances of the crime but also the minor's entire social history. [Citations.]' [Citation.]" (Frankie J., supra, at p. 1153, 244 Cal.Rptr. 254.) "A condition of probation will be considered invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. [Citation.]" (Ibid.) We also consider the legislative policies for the juvenile court system when we determine the validity of probation conditions in a juvenile case.

Section 202 states, "(a) The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public...."

In addition, in enacting recent amendments to the code, the Legislature, in an uncodified preamble, stated: "(a) The Legislature finds and declares as follows:

"(1) The problem of juvenile delinquency should be addressed at its inception rather than after it has progressed to serious criminality.

"(2) The precursors of serious criminality by juveniles include incorrigibility, truancy, curfew [sic ], illiteracy, and alcohol and drug abuse. These precursors have been given little attention because the attention has been focused on those juveniles who are the most difficult to reform, the serious and habitual offenders.

"(3) The young offender who exhibits the symptoms of future delinquency presents the most significant potential for rehabilitation, yet this young offender has been largely ignored. This approach is a disservice to the community, the parents, and most importantly, to our youth.

"(b) In this regard, it is the intent of the Legislature to implement a program based on a different perspective and strategy toward juvenile delinquency which program is designed to reach our children before they become habitual criminals, and requires the intervention by the juvenile justice system at the earliest signs of drug abuse, gang affiliation, and other antisocial behavior. The program mandates parental involvement, drug and alcohol counseling, structured probation programs monitored for compliance, and early judicial intervention with delinquent youths. It seeks to promote the positive development of juveniles by emphasizing the enforcement of school attendance laws and the establishment of special education and socialization programs designed for the individual needs of the minor." (Stats.1989, ch. 1117, § 1.)

Conditions Requiring Cooperation by and Involvement of Minor's Parents. Among minor's conditions of probation were the following:

"3. Your parents shall cooperate with the Probation Officer and shall consult with him upon request.

"......

"21. The minor and his parents shall be involved in a Counseling Program at the direction of the Probation Officer."

Minor contends that those conditions were invalid. He argues that he faces a violation of probation if his parents fail to perform those conditions.

Section 729.2 explicitly provides for such conditions of probation: "If a minor is found to be a person described in Section 601 or 602 and the court does not remove the minor from the physical custody of the parent or guardian, the court as a condition of probation, except in any case in which the court makes a finding and states on the record its reasons that that condition would be inappropriate, shall:

"...

"(b) Require the parents or guardian of the minor to participate with the minor in a counseling or education program, ..." (Emphasis added.)

In Charles S. v. Superior Court (1982) 32 Cal.3d 741, 187 Cal.Rptr. 144, 653 P.2d 648, a minor was placed on voluntary informal probation under section 654. On appeal, a probation condition requiring restitution was ordered stricken because the minor and his family were indigent. The court stated, "While conceding the rehabilitative function of restitution, Charles objects to the fact that the restitution schedule was apparently directed at his parents, rather than just himself. However, the program of informal probation contemplated by the statute requires the full cooperation and support of the minor's family. The program can be instituted only with the consent of the minor and the minor's parent or guardian. The guidelines provided by rule 1307 state that the probation officer shall consider the attitude of both the minor and his parents, and the ability of the minor and his parents to resolve the matter informally. The parents must be an integral part of any rehabilitative program. A requirement that they show their willingness to assist the program is neither unfair nor unreasonable. If the parents are unwilling to assume their share of responsibility for the minor by contributing toward restitution, a question is raised as to whether they will be able to provide him with the necessary help and guidance during the probation period." (Id. at p. 748, 187 Cal.Rptr. 144, 653 P.2d 648.) The court observed, however, that no rehabilitative purpose could be served by requiring the minor to do something he was incapable of doing. Thus, the court struck the condition notbecause it required the minor's parents to participate, but because the parents were financially unable to meet the condition.

Although the court in Charles S. discussed voluntary informal probation under section 654, similar policies apply to formal probation under section 727. The success of both programs depends in part, on the parents' willingness to assume responsibility for providing help and guidance to the minor.

Here, the probation report indicated, "It is felt that a strong case could be made for the minor to be removed from his parents' custody and placed due to the lack of parental stability. It is also felt that the minor deserves a chance to prove himself on probation. It is not the minor's fault that his parents have been dysfunctional. The minor needs intensive Probation Supervision and his parents need to resolve their problems." In light of the specific statutory authorization for requiring parental counseling as a condition of probation, we find no error. Such parental involvement is intended to promote...