IN RE: CHRISTIAN M. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

The court adjudged appellant a ward of the court after it sustained allegations in a petition (Welf. & Inst.Code, § 602) ¹ charging appellant, Christian M., with indecent exposure (Pen.Code, § 314, subd. 1).   On March 24, 2011, the court placed appellant on probation subject to certain terms and conditions.

On appeal, appellant contends that two of his conditions of probation are overbroad.   We will find partial merit to this contention and modify one of the conditions.   In all other respects, we will affirm.

On January 27, 2010, appellant was walking home from school with a female friend when he lowered his pants and undershorts and exposed his penis.

On November 8, 2010, the district attorney filed an information charging appellant with indecent exposure.

On February 10, 2011, following a jurisdictional hearing, the court sustained the allegations in the petition.

On March 24, 2011, the court placed appellant in the Bear Creek Academy short-term home commitment program and released him on probation to the custody of his father.

Appellant's terms and conditions of probation included the following terms:

“2[.] Obey all laws. [¶] ․ [¶]

“14[.] Submit your person, vehicle, place of residence, or any other belongings to search and seizure, without a warrant, at any time day or night, by any Probation Officer or Law Enforcement Officer with or without probable cause. [¶] ․ [¶]

“16[.] Not own, possess, be in control of, consume, or be under the influence of any controlled substance, including alcohol, and tobacco, unless prescribed by a licensed physician or possess any paraphernalia, device or contrivance used to consume controlled substances, alcoholic beverages and tobacco product [s]. [¶] ․ [¶]

“25[.] Do not own, possess or be in control of any firearms․”

Appellant did not object to any of the terms and conditions of probation imposed by the court.

DISCUSSION

The Search and Seizure Condition

Appellant contends the court erred in imposing the search and seizure condition because it infringes on his privacy expectation under the Fourth Amendment and does not further a lawful probation goal.   Respondent contends that appellant forfeited this issue by his failure to object in the juvenile court.   Alternatively, respondent contends that the condition is justified in order to ensure appellant's compliance with condition 2, which requires appellant to obey all laws and condition 16, which prohibits appellant from possessing alcohol, drugs or drug paraphernalia.   We will find that the court properly imposed the search and seizure condition.

Generally, a defendant must first raise the issue in the trial court to challenge a probation condition on appeal.  (People v. Welch (1993) 5 Cal.4th 228, 237.)   However, the Supreme Court has held that the forfeiture rule does not apply to a defendant's contention that a probation condition is unconstitutionally vague and overbroad on its face when the challenge presents a pure question of law.  (In re Sheena K. (2007) 40 Cal.4th 875, 887.)   Therefore, we will address appellant's challenge to the search and seizure condition because it presents a pure question of law.

“In [People v. Lent (1975) 15 Cal.3d 481], the Supreme Court determined ‘[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․”  [Citation;  fn. omitted.]’  [Citation.]  Under ․ section 730, when a minor is adjudged a ward of the court on a delinquency petition, 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.’   This provision has been broadly interpreted.

“ ‘Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation.  “A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.”  [Citation.]’  [Citation.]”  (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500.)

Probation condition 16, which appellant did and still does not object to, prohibits him from owning, possessing, or being in control of any alcohol, drugs or drug paraphernalia.   Therefore, the search condition was properly imposed because it allows the probation department to ensure appellant's compliance with this condition.  (People v. Reyes (1998) 19 Cal.4th 743, 752 [“ ‘ “The purpose of an unexpected unprovoked search of defendant is to ascertain whether [the probationer] is complying with the terms of [probation];  to determine not only whether he disobeys the law, but also whether he obeys the law․” ’  [Citations.]”].) Accordingly, we conclude that the court did not abuse its discretion when it imposed a search condition here.

The Condition Prohibiting Appellant from Possessing Any Firearm

Appellant contends that probation condition 25, which prohibits him from any firearms, is overbroad because it prevents him from possessing firearms in situations in which he could otherwise legally possess them (see, e.g., Pen.Code, § 12101, subd. (a)(2)(A) [minor may possess firearm capable of being concealed upon the person if “[t]he minor is accompanied by his or her parent or legal guardian, and the minor is actively engaged in, or is in direct transit to or from, a lawful, recreational sport, ․”] ).  Respondent concedes and we agree.

“ ‘ “The statutory authority of Penal Code section 1203.1 which furnishes and limits the power which the court may exercise is ․ circumscribed by constitutional considerations.  [Citation.]  Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn.   To the extent it is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.” ’  [Citation.]”  (People v. Garcia (1993) 19 Cal.App.4th 97, 101–102.)

Probation condition 25 prohibits appellant from possessing firearms even in circumstances where, but for the probation condition, he would legally be able to do so.   Further, appellant had no prior criminal history and his probation report does not disclose any circumstances that would justify a total restriction on appellant possessing guns.   Accordingly, we conclude that the court abused its discretion when it imposed condition 25, because that condition is not reasonably related to a compelling state interest and is, thus, constitutionally overbroad.

DISPOSITION

The probation condition prohibiting appellant from possessing firearms is stricken.   As modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

THE COURT * FN*.  Before Gomes, Acting P.J., Dawson, J., and Kane, J.