Filed 10/30/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A136288
A.M., (Alameda County
Defendant and Appellant. Super. Ct. No. SJ11016632-01)
After being declared a ward of the court as a truant pursuant to Welfare and
Institutions Code section 601,1 A.M. (Minor) was placed on global positioning system
(GPS) monitoring as a condition of probation. Minor later objected to being placed on
GPS monitoring, and the juvenile court issued an order ruling that it was appropriate for
section 601 wards. In her appeal from this order, Minor contends GPS monitoring as a
1
All undesignated statutory references are to the Welfare and Institutions Code.
Section 601, subdivision (b), provides in pertinent part: “If a minor has four or more
truancies within one school year as defined in Section 48260 of the Education Code or a
school attendance review board or probation officer determines that the available public
and private services are insufficient or inappropriate to correct the habitual truancy of the
minor, or to correct the minor’s persistent or habitual refusal to obey the reasonable and
proper orders of school authorities, or if the minor fails to respond to directives of a
school attendance review board or probation officer or to services provided, the minor is
then within the jurisdiction of the juvenile court which may adjudge the minor to be a
ward of the court.”
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condition of probation for a truant is not authorized by statute and is unconstitutional.
We shall affirm the order.
I. BACKGROUND
The Alameda County District Attorney filed a juvenile wardship petition in March
2011, alleging Minor, who was then 14 years old, was a habitual truant under section
601, subdivision (b). Minor admitted the allegations of the petition and was declared a
ward of the court. On April 29, 2011, the juvenile court placed her in the custody of the
probation department in her mother’s home “under the standard conditions of probation,”
and ordered her to attend school every day, report to and cooperate with her probation
officer, maintain a curfew of no later than 6:00 p.m., not stay out overnight without
permission, and not own, use, or possess any narcotics or drugs.
A probation officer reported to the court on June 15, 2011, that since Minor’s last
court appearance she had missed 13 periods of class, had been tardy once, had been
suspended for 12 days due to truancy, and earlier that month had stayed away from home
overnight without permission. At a hearing two days later, the juvenile court placed
Minor on GPS monitoring.
Minor was taken into custody on June 27, 2011, for a “GPS failure” after she
twice was away from home in the evening without her mother’s permission. Two days
later, the juvenile court released her again on GPS, and ordered her to stay at home unless
she was in school.
In preparation for a November 4, 2011 progress report, Minor’s probation officer
reported that since the beginning of the school year, Minor had missed 33 periods of
school, had been tardy 29 times, and had been suspended once, after drug paraphernalia
was found on the ground where Minor and other students were gathered. An electronic
monitoring progress report noted that Minor had failed to call in daily and check in, and
that she had violated her GPS contract recently by leaving the county to go to a mall and
amusement park, returning at almost midnight. The juvenile court maintained Minor on
GPS monitoring. In the following two months, Minor attended school daily but missed a
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number of class periods, had many unexcused tardies, and was found on another school’s
campus during school hours.
Minor was taken into custody on December 28, 2011, for a “GPS violation,” after
she was out of her home from 12:50 a.m. until 3:32 a.m. She had also been out of her
home for more than half an hour in the afternoon. Noting it was “familiar with . . . the
activities that go on” in the area Minor visited during the night, the court detained her in
juvenile hall. She was released from juvenile hall on January 4, 2012, and remained on
GPS monitoring.
Minor continued to accrue absences, missed class periods, and tardies during the
first three months of 2012, although she was more or less compliant with her GPS
contract and her school attendance improved. However, during the spring of that year,
her school attendance declined. Her GPS monitor showed no unauthorized movements.
On June 29, 2012, Minor was out of her home, in a park, from 12:41 to 2:39 a.m.,
and was detained in juvenile hall for the violation of her probation conditions. She was
released to her mother on July 3, 2012, and remained on GPS monitoring. On the same
date, Minor filed an objection to being placed on GPS monitoring, arguing it was an
invalid condition of probation for a truancy wardship.
On July 20, 2012, the probation department reported that since the July 3 hearing,
Minor had complied with her GPS contract. On July 20, 2012, the court vacated the GPS
order. Nevertheless, on August 9, 2012, the court heard argument on Minor’s objection
to being placed on GPS, and issued an order ruling GPS monitoring was appropriate in
section 601 (truancy) wardships. Minor has appealed from this order.
II. DISCUSSION
Section 727, subdivision (a)(1) provides that “[i]f a minor is adjudged a ward of
the court on the ground that he or she is a person described by Section 601 or 602, the
court may make any reasonable orders for the care, supervision, conduct, maintenance,
and support of the minor, including medical treatment, subject to further order of the
court.” (Italics added.) Subdivision (a)(2) authorizes the court, in its discretion, to place
a ward on probation without the supervision of the probation officer, and to impose
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“reasonable conditions of behavior as may be appropriate under this disposition.” In all
other cases, however, “the court shall order the care, custody, and control of the minor to
be under the supervision of the probation officer . . . .” (§ 727, subd. (a)(3).)
Other provisions of the juvenile law specify certain conditions of probation. For
instance, section 729.2 provides that if a minor is found to be a person described in
Section 601 or 602 and is not removed from the parents’ physical custody, the court
normally “shall” require the minor to attend school regularly, require the parents or
guardian to participate with the minor in a counseling or education program, and require
the minor to be home between 10:00 p.m. and 6:00 a.m. unless accompanied by a parent,
legal guardian, or other responsible adult. The court may require the minor to submit to
urine testing for alcohol or drugs. (§ 729.3.) Under Education Code section 48264.5,
subdivision (d), the court must require a section 601 ward to do one or more of the
following: perform community service, pay a fine, attend a truancy prevention program,
or lose driving privileges.
Minor contends the juvenile court lacked authority to impose any conditions of
probation other than those specified by statute, arguing that under the principle of
expressio unius est exclusio alterius, by establishing certain conditions of probation in a
section 601 case where the minor was placed on supervised probation, the Legislature
intended to prohibit any other conditions. We reject this contention. By its terms, section
727, subdivision (a)(1) authorizes the juvenile court to “make any reasonable orders for
the . . . conduct” of a minor adjudged a ward of the court under section 601, which are
comparable to conditions of probation. (See In re Ronnie P. (1992) 10 Cal.App.4th 1079,
1089.)2 A conclusion that the juvenile court is limited to those conditions expressly
provided by statute would be inconsistent with this broad language.
2
In re Ronnie P. explains that “[i]n content these orders [under section 727,
subdivision (a)] are often comparable to adult probation conditions,” and that both
legislators and courts refer to them as “ ‘conditions of probation,’ ” but suggests the terms
“ ‘conduct orders’ or ‘conduct terms’” would be preferable, as they would “focus on the
nature of the order without importing unwanted resonances from criminal law.” (In re
Ronnie P., supra, 10 Cal.App.4th at p. 1089 & fn. 7.)
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Minor argues, however, that even if the power of the juvenile court is not so
limited, a GPS condition is inappropriate in the case of truants, who have been declared
wards not for committing any crime, but due to their status as minors. According to
Minor, the condition “is inconsistent with the purpose of section 601 which is to promote
school attendance.” The Legislature, however, has clearly determined that a nighttime
curfew is consistent with the purpose of encouraging truants to attend school: among the
conditions of probation the juvenile court must normally impose on a truancy ward is a
nighttime curfew, unless the minor is accompanied by a parent or guardian. (§ 729.2,
subd. (c).) Because a GPS condition assists the court in monitoring a minor’s compliance
with a curfew, we cannot conclude that such a condition is inconsistent with the purposes
of section 601.
We are also guided in our analysis by In re R.V. (2009) 171 Cal.App.4th 239,
which affirmed an order placing a ward of the juvenile court on GPS monitoring, and in
doing so rejected the minor’s contentions that it was an abuse of discretion and violated
his constitutional rights, including his Fourth Amendment rights. The court explained
that “ ‘ “[a] condition of probation which is [legally] impermissible for an adult criminal
defendant is not necessarily unreasonable for a juvenile receiving guidance and
supervision from the juvenile court,” ’ ” (id. at p. 246), and went on to note that GPS was
expressly authorized by statute for adult probationers (Pen. Code, § 1210.7 et seq.), sex
offenders (Pen. Code, § 1202.8), and parolees (Pen. Code, § 3010). (In re R.V., 171
Cal.App.4th at p. 247.) The court then concluded that given the minor’s violations of the
Penal Code and the conditions of his probation, GPS monitoring was reasonably related
to his past behavior and likely to deter future criminality. (Id. at p. 247.) The court also
rejected the minor’s constitutional arguments, reasoning that when a state asserts
jurisdiction over a minor, it stands in the shoes of the parents, and that “ ‘the juvenile
court may impose probation conditions that infringe on constitutional rights if the
conditions are tailored to meet the needs of the minor.’ ” (Id. at p. 248; see also In re
Walter P. (2009) 170 Cal.App.4th 95, 100.)
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We recognize that the wardship in In re R.V. was based on the minor’s violations
of criminal law, not on his truancy. (In re R.V., supra, 171 Cal.App.4th at p. 242.)
However, the Legislature has made clear it considers maintaining a curfew to be
reasonably related to the goal of ensuring a minor attends school regularly. (See § 729.2,
subd. (c).) We conclude that in appropriate circumstances—such as may exist where a
ward continues a pattern of truancy and violates curfew—GPS monitoring may be an
appropriate condition of probation for a section 601 ward.
Our holding here is limited to this purely legal issue. As we have noted, at the
time of the ruling from which Minor has appealed, the juvenile court had already vacated
the GPS order; the August 9, 2012 order ruled that GPS monitoring was appropriate in
truancy wardships, but the record does not indicate Minor was reinstated on GPS
monitoring. Because Minor did not appeal any order actually placing her on GPS
monitoring, no such order is before us now, so we have no occasion to decide whether the
juvenile court properly exercised its discretion in its earlier orders placing Minor on GPS
monitoring.3
Minor also contends GPS monitoring as a condition of probation for a truant
violates section 601, subdivision (b), which provides in pertinent part: “[I]t is the intent
of the Legislature that no minor who is adjudged a ward of the court pursuant solely to
this subdivision shall be removed from the custody of the parent or guardian except
during school hours,” and section 207, subdivision (a), which provides in pertinent part:
“No minor shall be detained in any jail, lockup, juvenile hall, or other secure facility who
is taken into custody solely upon the ground that he or she is a person described by
3
In their briefing, neither party raised the question of whether any actual
controversy was before us in light of the July 20, 2012 order vacating minor’s GPS
monitoring. However, at oral argument Minor’s counsel acknowledged that in the
procedural posture of the case, this appeal raises a facial challenge to the propriety of the
GPS monitoring as a condition of probation in truancy cases. Because this purely legal
issue may well recur between the parties, we have addressed it on the merits. (See In re
Michael D. (1996) 51 Cal.App.4th 1074, 1081, fn. 2.) We do not, however, express any
opinion on whether the GPS monitoring imposed in the juvenile court’s earlier orders—
which Minor did not appeal—was in fact appropriate.
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Section 601 or adjudged to be such or made a ward of the juvenile court solely upon that
ground, except as provided in subdivision (b).” Section 207, subdivision (b), in turn
allows section 601 wards to be taken into custody for limited time periods (none of them
more than 72 hours) in specified circumstances, such as when there is a need to determine
if there are any outstanding warrants or to locate the minor’s parent or guardian. In
addition, as Minor acknowledges, the juvenile court has authority to order the
confinement of a section 601 ward who is found in contempt of court, subject to certain
limitations. (In re Michael G. (1988) 44 Cal.3d 283, 287, 297.)
According to Minor, the GPS condition was improper and violated her due process
rights because the allegation of a violation of her GPS probation condition subjected her
to summary detention and incarceration. This challenge, however, is not directed to the
facial validity of a GPS condition—the only issue the trial court decided in the challenged
order—but to the consequences in this case after Minor violated her curfew while on GPS
monitoring. As a facial matter, Minor has not persuaded us that detention is a necessary
consequence of a curfew violation while a truancy ward is on GPS monitoring or that
such a violation must necessarily be treated differently than a violation of any other
condition of probation. In any case, Minor failed to seek review of any order either
imposing a GPS condition or detaining her, and we will not address this issue now.4
4
In affirming the court order, we do not express approval of the provision in
Minor’s GPS contract that if she became ineligible for the GPS program, she could be
taken into custody without a warrant. Any conditions imposed on a truant in connection
with GPS monitoring must, of course, be consistent with the purposes and provisions of
the statutory scheme for section 601 wards.
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III. DISPOSITION
The order appealed from is affirmed.
_________________________
Rivera, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Humes, J.
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Trial court: Alameda County
Trial judge: Hon. Rhonda Burgess
Attorneys:
Jonathan Soglin
L. Richard Braucher
under appointment by the Court of Appeal
(Attorney for Defendant/Appellant)
Kamala D. Harris
Attorney General
Dane R. Gillette
Chief Assistant Attorney General
Gerald A. Engler
Senior Assistant Attorney General
Eric D. Share
Supervising Deputy Attorney General
Ronald D. Niver
Deputy Attorney General
(Attorneys for Plaintiff/Respondent – The People of the State of California)
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