IN RE: J.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.L., Defendant and Appellant.
THE PEOPLE, Plaintiff and Respondent, v. P.M., Defendant and Appellant.
THE PEOPLE, Plaintiff and Respondent, v. K.L., Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Minors J.L., P.M., and K.L. appeal from the orders of wardship entered by the juvenile court following a joint adjudication hearing. The court found that J.L. threatened a public officer in violation of Penal Code section 71 and disturbed the peace. (All further statutory references pertain to the Penal Code unless otherwise noted.) It found that P.M. assaulted and battered a school employee in violation of sections 241.6 and 243.6. The court found that K.L. also battered a school employee.
J.L. contends that insufficient evidence supported the juvenile court's finding that he violated section 71, the court failed to consider whether his violation of section 71 was a misdemeanor or felony, and one of his probation conditions is vague and overbroad. P.M. contends that the juvenile court improperly required her to submit to warrantless searches as a condition of her probation and improperly set a maximum term of confinement for her. K.L. contends that the juvenile court abused its discretion by failing to place her on informal supervision when her cominors declined to accept the prosecutor's plea offer and imposed an unreasonable and unconstitutional probation condition that prohibits her from associating with her brother, J.L. We strike the maximum confinement term for each minor, modify one of J.L.'s probation conditions to include a knowledge element, modify one of K.L.'s probation conditions to permit her to associate with J.L., and remand for the juvenile court to exercise its discretion regarding the felony or misdemeanor status of J.L.'s section 71 violation. We otherwise affirm.
The wardship orders challenged in this appeal stem from Welfare and Institutions Code section 602 petitions filed on September 20, 2007, that alleged that J.L., K.L., and P.M. committed various offenses during a September 18, 2007 lunchtime disturbance at the Los Angeles County high school they attended. (All dates refer to 2007, unless otherwise noted.) J.L., a boy, was 14 years old on that date. His sister, K.L., was 16. P.M., a girl, was 15.
J.L. was the subject of two other pending Welfare & Institutions Code section 602 petitions, one of which was based upon an August 31 incident at the same school and involving some of the same school personnel. (J.L. also had a prior sustained petition for battery on a school employee.) The juvenile court admitted evidence regarding the August 31 incident during the joint adjudication hearing on the September 20 petitions. Regarding the August 31 incident, J.L. testified that he was waiting in the “tardy line” to obtain a pass. School security officer Christopher Niemeyer began to write J.L. a truancy ticket and told J.L. to stand near the wall. When the bell rang, everyone who had been in line began walking away, and J.L. joined them. School security officer Jeff Cowart put his arm around J.L. J.L. asked Cowart to remove his arm. Cowart said he could touch any student and repeatedly said, “You got me fucked up, nigga.” J.L. continued to walk away. Cowart and Niemeyer threw J.L. against a wall and then onto the floor. Niemeyer, who weighed over 300 pounds, sat on J.L. and the guards handcuffed him. Cowart testified that J.L. behaved “in a violent way” during the August 31 incident, and that he and Niemeyer “took” J.L. to the ground and handcuffed him. Niemeyer testified he had “placed [J.L.] up against a wall,” “taken” him to the ground, and handcuffed him.
The trouble on September 18 began when Niemeyer ordered P.M. to pick up cake that had fallen to the ground. Niemeyer testified that he had seen P.M. “throwing cake around.” P.M. and three other students (A.A., L.R., and D.F.) testified that P.M. was throwing the cake in the trash at the end of the lunch period when someone bumped her and it fell to the ground. Niemeyer and teacher John Misustin testified that P.M. refused to pick up the cake and walked into the restroom. P.M., A.A., L.R., and D.F. testified that P.M. had already picked up the cake when Niemeyer spoke to her, but she made additional efforts to pick up the remaining crumbs in compliance with Niemeyer's demands. She then went into the restroom to wash crumbs and frosting off of her hands.
Niemeyer summoned a female security officer, Terri Lauterio, to retrieve P.M. from the restroom. When P.M. emerged from the restroom, Niemeyer and Lauterio ordered her to pick up the cake. Lauterio testified that P.M. refused. Niemeyer testified that P.M. picked up and threw away a tray the cake sat on, but walked away after refusing to pick up the cake. P.M., A.A., L.R., and D.F. testified that P.M. picked up additional crumbs and, after Niemeyer yelled at her, P.M. told him that she had already picked up the cake. P.M. then began to walk to class.
Niemeyer testified that he followed P.M. and “asked her nicely” to pick up the cake, but she became angry, yelled at him, and pointed her finger so close to his face she was about to tap him on his nose. Niemeyer thought P.M. was going to hit him, so he grabbed her left arm, placed it behind her back, and began to walk her toward the administration office. Niemeyer testified that P.M. began “kicking and screaming, flailing her arms around.” Lauterio testified that P.M. was flailing her arms and cursing. Misustin testified that P.M. was pushing Niemeyer and cursing at him. Niemeyer testified that he stood P.M. against a picnic table to limit her movement while he handcuffed her. He denied forcing her down on the table, and he and Lauterio testified that P.M. voluntarily bent down over the table. Misustin testified that Niemeyer “forced” P.M. down on the table “against her will, but it wasn't a slamming.” Student G.R. also testified that Niemeyer was “trying to put her down onto the table.” P.M., A.A., L.R., D.F., S.L., and T.L. testified that as P.M. was walking away to go to class, Niemeyer grabbed her upper arm and forcefully “threw” or “slammed” her down onto a picnic table. P.M. testified that Niemeyer called her a “nappy head,” which Niemeyer denied.
J.L. began filming Niemeyer and P.M. from the opposite side of the picnic table. According to Niemeyer, Misustin, and Lauterio, J.L. called Niemeyer “fat ass,” and said, “We gotcha now,” and “Look at Chris with this little Black girl.” Niemeyer testified he told J.L., “You need to go ahead and put the camera down. Any electronic signaling devices are not allowed on high school campuses.” A.A. and L.R. heard a security guard other than Niemeyer tell J.L. to put the camera away. J.L. continued to film. Niemeyer testified that J.L. came around the table and put the camera six to eight inches from Niemeyer's face.
J.L. testified that when he saw what Niemeyer using force on P.M., he thought, “[H]e did me the same way and he shouldn't be doing that to kids.” So J.L. began videotaping the action from the opposite side of the picnic table. J.L. denied that he moved around the table. K.L. testified that the closest J.L. got to Niemeyer was five or six feet. J.L.'s video was admitted as a defense exhibit at the adjudication.
Niemeyer reached toward the camera. He testified he was trying to push it out of his face. Misustin, J.L., K.L., S.L., and T.L. testified that Niemeyer tried to grab the camera from J.L. J.L. handed the camera to one of the students standing near him. Niemeyer testified that J.L. then approached him with his fists clenched and lifted to chest height. J.L. was also biting his bottom lip. Niemeyer thought J.L. was going to hit him and believed J.L. was “inciting major student unrest.” Niemeyer released P.M. and grabbed J.L. in a “bear hug.” J.L. grabbed at the picnic table and held on. J.L. yelled, “This all you got, big Chris?” and repeatedly said, “I'm gonna fuck you up.” Niemeyer testified that he feared that J.L. was going to start a fight with him if he let J.L. loose. Niemeyer felt that “he needed to go ahead and detain him and get him away from the situation that was maybe aggravating him or making him act in that violent manner.” The August 31 incident played a role in causing Niemeyer to fear J.L. Also, Niemeyer knew about J.L.'s “past from other schools.” Niemeyer testified that while he was holding J.L., K.L. screamed at Niemeyer and struck him with her fist. As soon as Niemeyer got J.L. to let go of the picnic table, Niemeyer “guided him down to the ground to place restraints on him.” Niemeyer further testified that P.M. struck him while he was on the ground attempting to place handcuffs on J.L. K.L. then struck Niemeyer with her purse.
Lauterio testified that she saw J.L. “pulling the tables up and slamming them down.” The next thing she knew, Niemeyer and two other guards “had [J.L.] on the ground.” Misustin testified that when Niemeyer tried to take the camera from J.L., J.L. “kind of rose up in an aggressive manner” and began lifting and lowering the picnic bench while saying, “What? What? You ain't got nothin'.” Niemeyer and another guard then grabbed J.L. K.L. screamed at the guards and struck Niemeyer with her purse. Cowart testified that he saw P.M. strike Niemeyer. G.R. saw a female student hit Niemeyer.
J.L. testified that after he handed off the camera, he began walking to class, but Niemeyer grabbed him from behind. J.L. grabbed the picnic table to prevent Niemeyer from throwing him to the ground. Another security guard joined in and eventually they managed to throw J.L. to the ground. Both of the guards were “on” J.L. as he lay on the ground. J.L. denied that he ever came around the table to where Niemeyer was. He also denied that he raised his hands as if to challenge Niemeyer or anyone else to a fight. K.L., P.M., A.A., L.R., and T.L. testified that Niemeyer let go of P.M. and went after, “leaped at,” “attacked,” or “tackled” J.L. and tried to throw him to the ground. J.L. held onto the table. Other guards joined in and they “threw” or “slammed” J.L. to the ground and piled on top of him. None of the student witnesses saw J.L. advance toward Niemeyer or raise his fists to Niemeyer. T.L. photographed the guards on top of J.L. and four of her photos were admitted as a defense exhibit.
K.L. admitted she screamed at the guards to let her brother go and used profanity, but denied that she or P.M. struck anyone with her purse or hand. P.M. denied hitting or attempting to hit Niemeyer. She saw K.L. telling the guards to let her brother go, but K.L. did not hit Niemeyer. S.L. and T.L. testified that neither K.L. nor P.M. struck anyone. The school suspended S.L. for five days in relation to the September 18 incident because a staff member falsely claimed that S.L. jumped on Niemeyer's back.
Misustin testified that the school's rules prohibited students from using profanity and possessing video cameras on campus.
The juvenile court found that P.M. committed misdemeanor battery and assault on Niemeyer, sustained the petition, declared P.M. to be a ward of the court, and placed her home on probation with a declared maximum confinement term of one year four months.
The court found that K.L. committed misdemeanor battery on Niemeyer, sustained the petition, declared K.L. to be a ward of the court, and placed her home on probation with a declared maximum confinement term of one year.
With respect to J.L., the juvenile court found the allegations that J.L. threatened Niemeyer in violation of section 71 and disturbed the peace to be true, stated that the latter offense was a misdemeanor while the threat was a felony, and sustained the petition filed September 20 (pertaining to the events of September 18). J.L. admitted a misdemeanor assault on Cowart on August 31, as alleged in a petition filed on October 5, and the juvenile court sustained that petition. The court dismissed the third pending petition because the prosecutor was unable to proceed. The court declared J.L. to be a ward of the court and placed him home on probation with a declared maximum confinement term of four years one month.
1. Sufficiency of evidence
J.L. contends that the evidence was insufficient to support the juvenile court's finding that he violated section 71, which states, in pertinent part, “Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense․”
J.L. argues that the evidence showed neither (1) that he made a serious threat, as opposed to a “rather lame threat,” “posturing, “or “angry bluster” nor (2) that he intended to stop Niemeyer from discharging his lawful duties, as opposed to preventing Niemeyer from unlawfully using excessive force against J.L., who had merely violated a rule against bringing a camera to school.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the juvenile court's finding, so that a reasonable fact finder could find the allegation true beyond a reasonable doubt.. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) We also presume in support of the juvenile court's finding the existence of every fact the trier could reasonably deduce from the evidence and make all reasonable inferences that support the finding. (Id. at p. 1089.)
Section 71 “is designed to prohibit plausible threats, and to ignore pranks, misunderstandings, and impossibilities.” (People v. Zendejas (1987) 196 Cal.App.3d 367, 378-379.) But unlike section 422 (prohibiting criminal threats), section 71 “contains no requirement of immediacy.” (People v. Dunkle (2005) 36 Cal.4th 861, 920, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The defendant need not “have the capability to inflict the threatened unlawful injury immediately ” in order to violate section 71. (Dunkle, at p. 920.) Instead, “[i]t is sufficient if the defendant made a threat with the requisite intent and it reasonably appears to the recipient that the threat could be carried out.” (People v. Harris (2008) 43 Cal.4th 1269, 1311.) “Thus, it is immaterial that defendant may have lacked the ability to act on his threats immediately.” (Ibid.) In determining whether a statement “may be construed as a threat to inflict an unlawful injury upon person or property, we must examine not only the words spoken but also the circumstances surrounding the communication.” (In re Ernesto H. (2004) 125 Cal.App.4th 298, 310 (Ernesto H.).)
Viewing the evidence in the light most favorable to the juvenile court's finding and drawing all reasonable inferences supporting the finding, we find that substantial evidence supports the finding. J.L.'s words must be considered in the context of his demeanor and actions, as well as other circumstances, such as Niemeyer's knowledge or belief about J.L.'s history of violent behavior. Niemeyer testified that J.L. approached him with his fists clenched and lifted to chest height, as if he was going to hit Niemeyer. J.L. had also, according to Niemeyer, pushed the camera within inches of Niemeyer's face while calling Niemeyer “fat ass” and saying, “We gotcha now.” The juvenile court reasonably could infer from Niemeyer's testimony about J.L.'s words and conduct an extremely aggressive and hostile attitude toward Niemeyer. The August 31 incident provided a plausible explanation for J.L.'s hostility toward Niemeyer, as well as for Niemeyer's wariness of and expectations regarding J.L.'s conduct during the escalating incident on September 18. And J.L.'s “I'm gonna fuck you up” statement was not just something he intemperately uttered once. Niemeyer testified that J.L. said this repeatedly. Under the circumstances, the juvenile court's finding that J.L.'s made a “threat ․ to inflict an unlawful injury upon any person” was supported by substantial evidence. Further, Niemeyer's testimony that he feared that J.L. was going to start a fight with him if he let go of J.L. constituted substantial evidence that “it reasonably appear[ed] to the recipient of the threat that such threat could be carried out.” It was of no consequence that Niemeyer was restraining J.L. at the moment J.L. uttered his threat to Niemeyer, as a violation of section 71 does not require an ability to carry out the threat immediately.
“Intent is rarely susceptible of direct proof. Therefore, in determining whether the element of intent has been established, we consider whether it may be inferred from all the facts and circumstances disclosed by the evidence.” (Ernesto H., supra, 125 Cal.App.4th at p. 313.) If the juvenile court were forced to credit the testimony most favorable to J.L. and the only inference that could be drawn were that J.L. was merely filming and did not advance upon Niemeyer or adopt a fighting stance before Niemeyer used excessive force by attempting to grab the camera and then grabbing J.L., then J.L. would be correct that the evidence did not establish the intent required by section 71. But the juvenile court was free to accept the evidence it found most credible and, based upon that evidence, adopt a different conclusion regarding what occurred on September 18. Thus, the court could credit the testimony that Niemeyer or another security guard told J.L. to put the camera away, but J.L. ignored the directive. The court could also credit Niemeyer's testimony that he only pushed J.L.'s camera away, but did not grab for it. Or the court could conclude that if Niemeyer grabbed at the camera, he did not use excessive force, but was simply taking the next step to enforce the school rule after J.L. ignored an order to put the camera away. Since cameras were forbidden on the school campus, confiscation of a camera by school staff was necessarily a permissible and reasonable act. And the juvenile court could credit Niemeyer's testimony that after J.L. handed the camera to another student, J.L. advanced upon Niemeyer aggressively and adopted a fighting stance. J.L. does not and cannot plausibly argue that Niemeyer was not entitled, as part of his duties as a school security officer, to grab J.L. in a “bear hug” to prevent J.L. from striking him as he believed J.L. intended. Accordingly, viewed in the light most favorable to the juvenile court's finding, substantial evidence supports a conclusion that Niemeyer was engaged in the lawful performance of his duties at the time J.L. made his threat, and the juvenile court reasonably could infer from the circumstances that J.L.'s threat was made in an attempt to intimidate and deter Niemeyer from performing those duties.
2. Classification of J.L.'s section 71 violation
A violation of section 71 may be either a misdemeanor or a felony. Where the offense committed by a minor would be punishable as either a misdemeanor or felony if committed by an adult, Welfare and Institutions Code section 702 requires the court to declare whether the offense is a misdemeanor or a felony. One of the purposes of this requirement is to ensure that the court is aware of its discretion to treat the offense as either a misdemeanor or felony. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207.)
The September 20 petition against J.L. alleged a felony violation of section 71. In announcing its decision, the juvenile court stated that it found true, “count 1, of the September 20, 2007 petition, a felony violation of Penal Code section 71․” The court did not further address the felony or misdemeanor status of the charge.
J.L. contends that the juvenile court did not comply with Welfare and Institutions Code section 702 and that its statement does not indicate that the court “was aware of and actually exercised its discretion to declare the crime a felony or a misdemeanor.” We agree. The court's reference to “a felony violation of Penal Code section 71” is ambiguous, at best. The court may simply have been reading the charge from the petition. Its reference to a felony does not show that the court was aware the offense was a “wobbler” and that it could deem it to be a misdemeanor, rather than a felony. Nor does the court's statement show that it exercised its discretion and concluded the offense should be treated as a felony. A limited remand is necessary for the juvenile court to exercise its discretion and make a proper showing on the record.
3. Vague and overbroad probation condition for J.L.
In April of 2007, when J.L. was granted deferred entry of judgment with respect to the petition filed against him in December of 2006, the juvenile court imposed a probation condition prohibiting him from associating “with anyone disapproved of by parents [or] Probation Officer.” This condition (number 15) was incorporated into the juvenile court's disposition following the contested adjudication hearing on the September 20 petition.
J.L. contends, and the Attorney General agrees, that this condition must be modified to include the element of J.L.'s knowledge that his parents or probation officer disapproved of him associating with a particular person. In accordance with In re Sheena K. (2007) 40 Cal.4th 875, 890-892 (Sheena K.), we modify the condition as requested.
4. P.M.'s search condition
The juvenile court imposed a probation condition requiring P.M. to submit her “person, residence or property under [her] control to search and seizure at any time of the day or night by any law enforcement officer with or without a warrant.” P.M. did not object to this probation condition in the juvenile court.
P.M. contends that the search condition is invalid because it is not reasonably related to her offense. She notes that her offense did not involve drugs, alcohol, or weapons and questions “what the police would be looking for if they were to invoke” the search condition.
The Legislature has given trial courts broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed if probation is granted. (People v. Welch (1993) 5 Cal.4th 228, 233 (Welch ).) “A condition of probation will not be held invalid unless 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․’ ” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent ), quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) “Stated positively, ․ a valid condition of probation must (1) be related to the crime of which the defendant was convicted, or (2) relate to conduct that is criminal, or (3) require or forbid conduct that is reasonably related to future criminality.” (People v. Bauer (1989) 211 Cal.App.3d 937, 942.)
P.M. forfeited her claim that the search condition is unreasonable by failing to object to it in the juvenile court. (Sheena K., supra, 40 Cal.4th at pp. 885, 889; Welch, supra, 5 Cal.4th at pp. 234-237.) “Applying the [forfeiture] rule to appellate claims involving ․ unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a ․ probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions.” (Sheena K., at p. 885.)
Even if P.M.'s claim had not been forfeited, we would reject it. The search condition assists in ensuring P.M.'s compliance with two probation conditions that she does not challenge-that she obey all laws and not possess any dangerous or deadly weapons-and in providing the probation department and juvenile court with “ ‘ “a valuable measure of the effectiveness of the supervision given” ’ ” to P.M. (People v. Reyes (1998) 19 Cal.4th 743, 752; People v. Balestra (1999) 76 Cal.App.4th 57, 67.) “[A] warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer ‘obey all laws.’ Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms․” (Balestra, at p. 67.) The unchallenged conditions that P.M. obey all laws and not possess a dangerous or deadly weapon justify the search condition without regard to the nature and circumstances of P.M.'s offenses.
In addition, as P.M. acknowledges, a juvenile court has significantly greater discretion in imposing conditions of probation than that exercised by a trial court placing an adult on probation. (Sheena K., supra, 40 Cal.4th at p. 889.) This is because juvenile probation is not an act of leniency, but a disposition made in the minor's best interest. (Ibid.) Accordingly, “a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.” (Ibid.) A minor's liberty interest is not coextensive with that of an adult. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242.)
For all of these reasons, we would not find the search condition unreasonable, even if P.M. had not forfeited her unreasonableness claim.
5. Declaration of maximum term of confinement
P.M. contends that the juvenile court erred by setting a maximum term of confinement, even though she was placed home on probation.
When a minor is removed from the physical custody of his parent or custodian as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses. (Welf. & Inst.Code, § 726, subd. (c).)
The juvenile court was not required to set a maximum confinement term because P.M. was not removed from her mother's physical custody. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.) The declared maximum confinement term has no legal effect whatsoever (id. at p. 574), and, although it does not prejudice P.M., we agree it should be stricken. The same is true with respect to K.L. and J.L.
6. “Rejection” of informal supervision for K.L.
Before the adjudication hearing started, the juvenile court stated it had “conferenced [sic ] the matter with the attorneys several times regarding the possibility of resolution of this case.” The court continued, “The court's indicated, having spoken with the attorneys and their-realizing that there has been discussions between [the prosecutor] and [defense counsel] regarding possible disposition, the court's indicated as to both [K.L.] and [P.M.] would be 654[.2] probation, with 40 hours of community service, the other standard terms and conditions of probation that would go along with a 654[.2] grant. And the basis on the 654[.2] was the lack of any delinquency, based on their ages and the court's review of the preplea report.” After addressing a possible agreed disposition regarding J.L., the court continued, “But at this point my understanding is that both [K.L.] and [P.M.]-I want to be careful because I think one of them was willing to accept 654[.2].” The attorney who represented all three minors clarified that K.L. was “willing to accept the court's offer,” but P.M. was not. P.M. confirmed that she did not want to accept informal supervision.
The court and counsel then clarified the prosecutor's offer to J.L., and J.L. rejected it. Defense counsel stated, “[K.L.], your honor, was inclined and willing to accept a 654[.2]. The People, however, believe it's a package.” The court replied, “All right. Well, the People mentioned the issue of a package, but the reality of the situation is you're talking about-the court is not inclined to have-trying this case more than once, and so I think we'll just go ahead and proceed to adjudication. [¶] But the court would take into consideration at the time of disposition, in the event the petition is sustained as to [K.L.], that she was willing to consider 654[.2].” (The reporter's transcript incorrectly attributes the final quotation to the prosecutor.)
K.L. contends that the juvenile court abused its discretion by denying her “the right to participate in the informal probation program ․ based solely on the other minors' rejection of the court's offer.”
Welfare and Institutions Code section 654.2 provides, in pertinent part, as follows: “If a petition has been filed by the prosecuting attorney to declare a minor a ward of the court under Section 602, the court may, without adjudging the minor a ward of the court and with the consent of the minor and the minor's parents or guardian, continue any hearing on a petition for six months and order the minor to participate in a program of supervision as set forth in Section 654․ If the minor successfully completes the program of supervision, the court shall order the petition be dismissed. If the minor has not successfully completed the program of supervision, proceedings on the petition shall proceed no later than 12 months from the date the petition was filed.”
We review the court's denial of the motion for informal probation supervision for an abuse of discretion. (In re Armondo A. (1992) 3 Cal.App.4th 1185, 1189-1190.)
K.L. did not raise her appellate claim (or any other objection) in the juvenile court, and thereby forfeited it. In addition, the discussion between the juvenile court and counsel reveal that the possibility of placing K.L. on informal supervision under Welfare and Institutions Code section 654.2 was part of discussions in the nature of plea bargaining. The discussion also reveals that no plea agreement was reached. As far as the record reveals, K.L. did not ask the court to place her on informal supervision. The possibility was raised only as part of an attempt to settle the case as to all three minors collectively, which two of the minors rejected. The juvenile court cannot be faulted for failing to grant K.L. relief she did not request.
Even if K.L. had preserved her claim for appeal, we would not find that the juvenile court abused its discretion in determining the propriety of informal supervision under Welfare and Institutions Code section 654.2. In remarks immediately following the discussion quoted above, the court revealed its awareness that the adjudication hearing would be a lengthy one, requiring a number of days and involving numerous witnesses: “And so, [P.M.], [K.L.] and [J.L.], you understand that we're going to start your trial today, but we're not going to be able to finish the trial based on the number of witnesses that have been indicated to the court from both sides, and that we will put the matter over for dates that are convenient to make sure that we have adequate time to finish up the trial and that will probably carry us over into June before it's all said and done.” As it turned out, 16 witnesses testified over the course of five days and arguments consumed a portion of a sixth day. A court-faced with multiple minors and an expected lengthy adjudication hearing-must be permitted, when exercising its discretion regarding whether to grant one of the minors informal supervision, to consider matters such as efficiency, conserving judicial resources and public funds, and minimizing the burden upon witnesses, most of whom were either public school employees or students. If the juvenile court had placed K.L. on formal probation and she then failed to complete the program satisfactorily, a second adjudication hearing would have been required. All of the student witnesses who were subpoenaed would have been required to miss additional classes. The school district and its students again would have been deprived of the services of teacher Misustin and the several security guard witnesses. And the court would have been unavailable to hear other matters involving other minors. The court's statements demonstrate these valid and powerful concerns. Accordingly, we would not find an abuse of discretion, even if K.L. had preserved her claim.
7. Probation condition prohibiting K.L. from associating with her brother
The juvenile court imposed a probation condition prohibiting K.L. from associating with “co-minors [and] anyone known to be disapproved by parents [or] Probation Officer.” (J.L.'s similar probation condition did not include “co-minors.”) K.L. did not object to this condition in the juvenile court.
K.L. contends that this condition is “constitutionally overbroad and improperly restricts” her contact with her brother J.L., who was one of the cominors. She further argues that the condition is unreasonable under Lent, supra, 15 Cal.3d 481.
K.L. forfeited her claim that the condition was unreasonable under Lent, supra, 15 Cal.3d 481, by failing to object below, but her overbreadth argument may be considered. (Sheena K., supra, 40 Cal.4th at pp. 885, 889; Welch, supra, 5 Cal.4th at pp. 234-237.)
Although the juvenile court's discretion in selecting probation conditions is quite broad, it is not boundless. A challenged condition must be “ ‘ “ ‘fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ ” ' ” (Sheena K., supra, 40 Cal.4th at p. 889, quoting In re Byron B. (2004) 119 Cal.App.4th 1013, 1015.) A probation condition that impinges on constitutional rights must be carefully tailored and reasonably related to a compelling state interest in public safety and the reformation and rehabilitation of the defendant. (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356.)
The condition in issue impermissibly intrudes upon the substantive due process rights of K.L., J.L., and their parents to live together as a family (Moore v. East Cleveland (1977) 431 U.S. 494, 499 [97 S.Ct. 1932] ) and her right to associate with her brother. Although K.L.'s participation in the September 18 fracas appears to have stemmed from her sibling relationship with J.L., a curtailment of their ability to live together and associate as family members does not promote the interests of public safety or K.L.'s reformation and rehabilitation. And the condition is not carefully tailored to avoid or minimize the intrusion upon K.L.'s constitutional rights. The Attorney General seemingly concedes the validity of K.L.'s constitutional claim, but asks that we remand for the juvenile court to explain its reasons for the probation condition. Remanding the case would be an idle act, as no explanation by the court would cure the glaring constitutional defect. The proper and more efficient remedy is to narrow the condition to prohibit K.L. from associating with P.M., rather than “co-minors.”
Case No. MJ15251 (J.L.) is remanded for the juvenile court to exercise its discretion, in accordance with Welfare and Institutions Code section 702 and In re Manzy W. (1997) 14 Cal.4th 1199, 1207, by determining whether J.L.'s violation of Penal Code section 71 should be deemed a felony or a misdemeanor. J.L.'s probation condition number 15 is modified to prohibit J.L. from associating with anyone of whom he knows his parents or probation officer disapprove. The maximum term of confinement declared by the juvenile court is stricken. The order under review in case No. MJ15251 is otherwise affirmed.
In case No. MJ16346 (P.M.), the maximum term of confinement declared by the juvenile court is stricken. The order under review in case No. MJ16346 is otherwise affirmed.
In case No. MJ16347 (K.L.), the condition of probation prohibiting K.L. from associating with cominors (condition number 15) is modified to prohibit her from associating with P.M. and anyone known to be disapproved by her parents or probation officer. The maximum term of confinement declared by the juvenile court is stricken. The order under review in case No. MJ16347 is otherwise affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, J. JOHNSON, J.