In re O.C. CA6

Filed 5/2/14 In re O.C. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

IN RE O.C., a Person Coming Under the H039645
Juvenile Court Law. (Monterey County
Super. Ct. No. J47047)

THE PEOPLE,

Plaintiff and Respondent,

v.

O.C.,

Defendant and Appellant.

I. INTRODUCTION
The minor, O.C., appeals from the juvenile court’s Welfare and Institutions Code
section 602, subdivision (a) dispositional order, which followed the minor’s admission to
misdemeanor battery (Pen. Code, § 242). The juvenile court placed the minor on
probation with conditions that included: (1) a requirement that the minor not change his
place of residence from Monterey County or leave the state without permission of the
court or the probation officer; (2) a requirement that the minor not associate with any
individuals known to be disapproved of by his parents or guardians; and (3) an 8:00 p.m.
curfew.
 On appeal, the minor challenges the three probation conditions listed above,
claiming they are overbroad and/or vague. We will modify the challenged probation
conditions and affirm the judgment as modified.1

II. BACKGROUND
A. Charged Offense2
On the evening of February 15, 2013, officers responded to the apartment where
the minor lived with his mother, sister, and grandmother. The mother stated that she and
the minor had argued. During the argument, the minor had grabbed her by the arm and
slammed her down into a chair. The minor had previously shown violent behavior in the
home—he had punched holes in the wall and damaged the front door. The mother
believed that the minor suffered from an emotional disturbance. She did not feel safe
with him in the home.
The minor admitted that he had shoved his mother and pushed her into a chair, but
he claimed that his mother had shoved him first. He also claimed that during a separate
incident, his grandmother had struck him with a broken wooden chair leg. His mother
and grandmother had called him names, angering him. He had knocked down his
grandmother’s television and stabbed a butter knife into a table.
B. Petition, Admission, and Disposition
On March 12, 2013, the District Attorney filed a second amended Welfare and
Institutions Code section 602, subdivision (a) petition alleging four counts of

1
In a letter dated April 1, 2014, appellate counsel stated that the minor’s appeal is
moot because the minor is no longer on juvenile probation and therefore not subject to
the challenged probation conditions. Appellate counsel did not request dismissal of the
appeal, but she did request that the case be taken off oral argument. We are exercising
our discretion to reach the merits of the issues on appeal for the guidance of the trial court
because the issues are likely to recur. (See In re R.V. (2009) 171 Cal.App.4th 239, 245-
246; In re Sheena K. (2007) 40 Cal.4th 875, 879.)
2
The facts of the charged offense are taken from the probation report.

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misdemeanor battery (Pen. Code, § 242). The minor admitted one count of the petition
on April 23, 2013. The District Attorney moved to dismiss the other three counts.
At the May 8, 2013 disposition hearing, the juvenile court declared the minor a
ward of the court. It found that continuing to allow him to remain in the home of his
parent was contrary to his welfare, that reasonable efforts had been made to prevent
removal, and that emergency conditions required his immediate removal from the home.
The court found that removal was in the minor’s best interest. It committed the minor to
the care, custody, and control of the probation department for an out-of-home placement.
The juvenile court also adopted all of the recommended terms and conditions of
probation. Those conditions included the following:
“4. You are not to change your place of residence from Monterey County or leave
this state without permission of the Court or Probation Officer. Prior to change of
residence, you are to notify your Probation Officer of the new address. Report each new
address and phone number to your Probation Officer within 24 hours.”
“13. You are not to associate with any individuals known to be disapproved of by
your parents or guardians. You shall not associate/communicate with any individuals
identified by your Probation Officer as a threat to your successful completion of
probation. You are not to associate with any individuals known by you to be on
Probation or Parole (adult or juvenile).”
“20. You are to obey 8:00 P.M. curfew. You are not to be out of your home
between the above listed times without approval of your Probation Officer.”
C. Post-Disposition
The minor filed a notice of appeal on May 10, 2013.
According to a probation department memorandum dated June 18, 2013, the minor
was still housed at juvenile hall. He had not been accepted into two programs and had
referrals pending at two other programs.

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 The probation officer filed another memorandum on July 3, 2013. At that point,
five programs had found the minor not appropriate. Two other programs had waiting
lists of eight weeks or more. Because of these circumstances, the Interagency Placement
Committee had proposed that the minor be placed “on Wraparound.” Two meetings had
been held and, after a third meeting scheduled for July 9, 2013, the minor would be
released “to Wraparound.”
On July 10, 2013, the probation officer filed a memorandum stating that the minor
had been released from juvenile hall into the Wraparound program. On July 11, 2013,
the juvenile court held a review hearing and indicated that the permanent plan was for the
minor to remain at home.

III. DISCUSSION
The minor challenges the three above-listed probation conditions as
unconstitutionally overbroad and/or vague.
A. General Legal Principles
Before addressing the minor’s specific contentions, we review some of the legal
principles guiding our review.
1. Probation Conditions for Minors
“The California Legislature has given trial courts broad discretion to devise
appropriate conditions of probation, so long as they are intended to promote the
‘reformation and rehabilitation’ of the probationer. (Pen. Code, § 1203.1, subd. (j).)”
(In re Luis F. (2009) 177 Cal.App.4th 176, 188.) The juvenile court “may make any
reasonable orders for the care, supervision, custody, conduct, maintenance, and support
of the minor or nonminor, including medical treatment, subject to further order of the
court.” (Welf. & Inst. Code, § 727, subd. (a)(1).) “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.” (Welf.

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& Inst. Code, § 730, subd. (b).) In fashioning conditions of probation, the juvenile court
considers “ ‘not only the circumstances of the crime but also the minor’s entire social
history.’ ” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500, disapproved on other
grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983-984, fn. 13.)
“[Welfare and Institutions Code s]ection 730 grants courts broad discretion in
establishing conditions of probation in juvenile cases. [Citation.] ‘[T]he power of the
juvenile court is even broader than that of a criminal court.’ ” (In re Christopher M.
(2005) 127 Cal.App.4th 684, 692, disapproved on another ground in People v. Gonzales
(2013) 56 Cal.4th 353, 375, fn. 6; see also In re Antonio R. (2000) 78 Cal.App.4th 937,
941 [“juvenile conditions may be broader than those pertaining to adult offenders”].)
“In distinguishing between the permissible exercise of discretion in probationary
sentencing by the juvenile court and that allowed in ‘adult’ court, [our State Supreme
Court has] advised that, ‘[a]lthough the goal of both types of probation is the
rehabilitation of the offender, “[j]uvenile probation is not, as with an adult, an act of
leniency in lieu of statutory punishment. . . .” [¶] In light of this difference, 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.’ ”
(In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)
2. Overbreadth and Vagueness
“A probation condition that imposes limitations on a person’s constitutional rights
must closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad. [Citation.]” (Sheena K., supra, 40 Cal.4th at
p. 890.) “A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (Ibid.)

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 B. Change of Residence Condition
The minor first challenges probation condition No. 4, which provides: “You are
not to change your place of residence from Monterey County or leave this state without
permission of the Court or Probation Officer. Prior to change of residence, you are to
notify your Probation Officer of the new address. Report each new address and phone
number to your Probation Officer within 24 hours.”
The minor contends the first sentence of this condition is unconstitutionally
overbroad. He argues that the condition limits his right to travel and freedom of
association “without narrowly tailoring it to the purposes of reformation and
rehabilitation.” He contends the condition gives the probation officer “excessive power
to proscribe where [the minor] may live” and that the condition “effectively impinges on
his custodial parent’s constitutional rights as well.” The minor requests we strike the
condition.3
1. Forfeiture
The Attorney General contends that the minor may not raise this issue on appeal
because it “is not merely one concerning the general applicability of a condition of
probation, but is instead an issue inexorably bound up in the facts of this particular case.”
The forfeiture rule does not apply when a minor challenges a probation condition
“as facially vague and overbroad,” at least insofar as the claim “presents an asserted error
that is a pure question of law, easily remediable on appeal by modification of the
condition.” (Sheena K., supra, 40 Cal.4th at p. 888.) However, this exception “does not
apply in every case in which a probation condition is challenged on a constitutional

3
The California Supreme Court is considering a challenge to a similar probation
condition in People v. Schaeffer (2012) 208 Cal.App.4th 1, rev. granted Oct. 31, 2012,
S205260 (Schaeffer). The condition in Schaeffer required the defendant to “ ‘[r]eside at a
residence approved by the Probation Officer and not move without his/her prior
approval.’ ” (Id. at p. 4.)

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ground” because “ ‘there may be circumstances that do not present “pure questions of law
that can be resolved without reference to the particular sentencing record developed in
the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver
principles encourage development of the record and a proper exercise of discretion in the
trial court.” [Citation.]’ ” (Id. at p. 889.)
In his reply brief, the minor reiterates that he is only challenging the probation
condition “on its face” and requests this court consider his claim. Having reviewed the
minor’s briefing, we agree that he makes a purely facial challenge, without reference to
the record, and thus find that his claim is not forfeited.
2. Analysis
In claiming neither the juvenile court nor the probation officer should have the
ability to restrict his choice of residence, the minor relies primarily on People v. Bauer
(1989) 211 Cal.App.3d 937 (Bauer). In Bauer, the court struck an adult’s probation
condition requiring that his “residence be subject to his probation officer’s approval.”
(Id. at p. 943.) The Bauer court first held that the probation condition could not stand
because there was nothing in the record “suggesting in any way that appellant’s home
life . . . contributed to the crime of which he was convicted or is reasonably related to
future criminality” and “and because residing with one’s parents relates to conduct not in
itself criminal.” (Id. at p. 944, fn. omitted; see People v. Lent (1975) 15 Cal.3d 481, 486.)
The Bauer court also found that the probation condition was “all the more
disturbing” because it impinged on the defendant’s right to travel and freedom of
association. (Bauer, supra, 211 Cal.App.3d at p. 944.) “Rather than being narrowly
tailored to interfere as little as possible with these important rights, the restriction is
extremely broad. The condition gives the probation officer the discretionary power, for
example, to forbid appellant from living with or near his parents—that is, the power to
banish him.” (Ibid.)

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 Unlike the Bauer condition, the condition here does not potentially require the
minor to leave his family home, as it merely requires approval of a change of residence.
There is no risk of banishment. Further, this condition is closely tailored to its purpose.
When a minor is placed on probation, the probation officer must know where he or she is
residing and must have some degree of control over the minor’s residence in order to
properly supervise and aid in his or her rehabilitation. Particularly in a case like this,
where the minor’s ultimate placement was subject to very specific requirements (i.e.,
Wraparound services), it is also necessary for the juvenile court to approve a change of
residence to ensure that the new residence is appropriate for the minor’s rehabilitation.
The minor further claims that this probation condition is improper because it does
not provide a meaningful standard for determining whether a change of residence is
appropriate. The minor relies on People v. O’Neil (2008) 165 Cal.App.4th 1351
(O’Neil), where a probation condition ordered the defendant not to associate “ ‘with any
person, as designated by your probation officer.’ ” (Id. at p. 1354.) The First District
Court of Appeal held that the condition was flawed because there were “no limits on
those persons whom the probation officer may prohibit defendant from associating with.”
(Id. at p. 1357.) As the condition did not provide “a meaningful standard,” the court
instructed the trial court to either strike the condition or rewrite it “to provide the
necessary specificity.” (Id. at pp. 1357, 1359.)
Here, it is true that the residence condition did not contain any type of standard for
determining whether a change of residence should be approved. However, whereas the
O’Neill court was concerned that the probation officer could impose arbitrary restrictions,
here the probation condition requires the approval of either the probation officer or the
court. We believe the minor’s concerns are addressed by the fact that the minor may seek
court approval for any change of residence, if the probation officer withholds his or her
permission for a requested move.

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 Finally, we address the minor’s claim that the change-of-residence condition is
overbroad because it infringes on his parents’ ability to change residences. While this is
true, we believe the condition is reasonably necessary to ensure the minor’s compliance
with the terms of his probation. The challenged probation condition only requires
permission from the court or probation officer for an out-of-county or out-of-state move;
neither the minor nor his parents are required to get prior permission for a move within
Monterey County. However, for clarity, we will modify the condition to specify it does
not prohibit the minor’s parents themselves from moving without the court’s prior
approval.
For the above reasons, we will modify probation condition No. 4 to provide: “You
are not to change your place of residence from Monterey County or leave this state
without permission of the Court or Probation Officer. Prior to change of residence, you
are to notify your Probation Officer of the new address. Report each new address and
phone number to your Probation Officer within 24 hours. Nothing in this provision shall
prohibit minor’s parents from changing their residence without prior approval of the
Court or Probation Officer; however, prior approval is required for a change in the
minor’s residence.”
C. Association Condition
The minor next challenges probation condition No. 13, which provides: “You are
not to associate with any individuals known to be disapproved of by your parents or
guardians. You shall not associate/communicate with any individuals identified by your
Probation Officer as a threat to your successful completion of probation. You are not to
associate with any individuals known by you to be on Probation or Parole (adult or
juvenile).”
The minor challenges this condition as both unconstitutionally overbroad and
vague. His claim concerns the first two sentences of the condition. The minor
acknowledges that the first sentence refers to “ ‘individuals known to be disapproved of

9
by your parent our guardians,’ ” but asserts that the condition should specify to whom the
disapproved individuals must be known. He makes a similar argument concerning the
second sentence’s use of the phrase “individuals identified by your Probation Officer.”
The minor relies on In re H.C. (2009) 175 Cal.App.4th 1067, a decision of this
court in which a juvenile challenged a probation condition requiring that he “ ‘not
associate with any known probationer, parolee, or gang member.’ ” (Id. at p. 1071.) In
that case, this court reasoned that as the condition was phrased, “The identity of a person
who has knowledge is unknown because it is in the passive voice.” (Ibid.) This court
modified the condition to provide: “ ‘You H.C. will not associate with any person known
to you to be on probation, on parole or a member of a criminal street gang.’ ” (Id. at
p. 1072.)
The minor also relies on People v. Lopez (1998) 66 Cal.App.4th 615, where the
defendant challenged a probation condition that prohibited him from wearing or
possessing “ ‘any item of identified gang clothing’ ” and from displaying “ ‘any gang
insignia, moniker, or other markings of gang significance on his/her person or property as
may be identified by Law Enforcement or the Probation Officer.’ ” (Id. at p. 622.) The
court noted that as phrased, “Lopez was subject to being charged with an unwitting
violation of the condition because nothing in it required the police or the probation office
to apprise Lopez of the ‘identified’ items of gang dress before he was charged with a
violation.” (Id. at p. 634.) The court remanded the matter so the trial court could
reconsider “whether the phrase ‘identified by law enforcement or the probation officer’
should remain” in the condition. (Id. at p. 638.)
The Attorney General has no objection to the proposed modifications. Therefore
we will order probation condition No. 13 modified as the minor requests, to provide:
“You are not to associate with any individuals known by you to be disapproved of by
your parents or guardians. You shall not associate/communicate with any individuals
identified to you by your Probation Officer as a threat to your successful completion of

10
probation. You are not to associate with any individuals known by you to be on
Probation or Parole (adult or juvenile).”
D. Curfew Condition
Finally, the minor challenges probation condition No. 20, which provides: “You
are to obey 8:00 P.M. curfew. You are not to be out of your home between the above
listed times without approval of your Probation Officer.”
The minor contends that this condition is unconstitutionally vague “because it
does not tell [him] when his curfew ends each morning.” The minor suggests the
probation condition could be modified to include an ending time of 6:00 a.m. He notes
that Welfare and Institutions Code section 729.2, subdivision (c) requires juvenile
probation conditions include the following: “Require the minor to be at his or her legal
residence between the hours of 10:00 p.m. and 6:00 a.m. unless the minor is accompanied
by his or her parent or parents, legal guardian or other adult person having the legal care
or custody of the minor.”
The Attorney General agrees that the probation condition is vague and suggests we
remand the matter so the juvenile court can set an ending time. The Attorney General
does not specifically object to our modification of the condition to include a 6:00 a.m.
ending time. In the interests of judicial economy and with the guidance of Welfare and
Institutions Code section 729.2, we will modify the condition as requested by the minor
to provide as follows: “You are to obey 8:00 P.M. curfew. You are not to be out of your
home between 8:00 p.m. and 6:00 a.m. without approval of your Probation Officer.”

IV. DISPOSITION
Probation condition No. 4 is modified to provide: “You are not to change your
place of residence from Monterey County or leave this state without permission of the
Court or Probation Officer. Prior to change of residence, you are to notify your Probation
Officer of the new address. Report each new address and phone number to your

11
Probation Officer within 24 hours. Nothing in this provision shall prohibit minor’s
parents from changing their residence without prior approval of the Court or Probation
Officer; however, prior approval is required for a change in the minor’s residence.”
Probation condition No. 13 is modified to provide: “You are not to associate with
any individuals known by you to be disapproved of by your parents or guardians. You
shall not associate/communicate with any individuals identified to you by your Probation
Officer as a threat to your successful completion of probation. You are not to associate
with any individuals known by you to be on Probation or Parole (adult or juvenile).”
Probation condition No. 20 is modified to provide as follows: “You are to obey
8:00 P.M. curfew. You are not to be out of your home between 8:00 p.m. and 6:00 a.m.
without approval of your Probation Officer.”
With these modifications, the judgment is affirmed.

___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________
MIHARA, J.

__________________________
GROVER, J.

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