Filed 12/30/13 In re R.C. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re R.C., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E058673
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. RIJ1300397)
v.
                                                                         OPINION
R.C.,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge.

Affirmed as modified.

         Jared M. Hartman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Susan Miller, Deputy

Attorney General, for Plaintiff and Respondent.


                                                             1
       Defendant and appellant R.C. (minor) admitted that he committed first degree

residential burglary in violation of Penal Code section 459. Minor was adjudged a ward

of the court and placed on probation in the custody of his mother with various terms and

conditions. Minor subsequently violated, and admitted to violating, several of his

conditions of probation numerous times. Minor was eventually removed from the

custody of his mother and ordered to be placed in a suitable placement with various terms

and conditions.

       On appeal, minor argues that (1) two of his probation conditions are

unconstitutional and must be modified; (2) the juvenile court erred in failing to state the

maximum term of confinement pursuant to Welfare and Institutions Code section 726;1

and (3) the juvenile court erred in failing to award him precommitment custody credits.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       On February 14, 2012, minor and two other juveniles broke into a residence and

stole personal property from therein.

       Two days later, the San Bernardino County District Attorney’s Office filed a

Welfare and Institutions Code section 602 petition alleging that minor committed first

degree residential burglary. (Pen. Code, § 459.)




       1 All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.


                                              2
       On March 5, 2012, minor admitted the allegation and was adjudged a ward of the

court. Minor was placed on probation in the custody of his mother with various terms

and conditions.

       On April 17, 2012, minor admitted to violating the terms of his probation by

failing to report to his probation officer, failing to attend school regularly, and using

marijuana. Minor was continued as a ward of the court on probation and ordered to serve

30 days in juvenile hall.

       On July 13, 2012, minor admitted to violating the terms of his probation by

disobeying his mother, not cooperating in a rehabilitation plan, failing to report to his

probation officer, and failing to inform his probation officer of his intent to move and

provide a change of address. Minor was continued as a ward of the court on probation

and ordered to serve 45 days in juvenile hall. The juvenile court also ordered minor to be

screened for drug court.

       Minor was accepted into drug court. On August 23, 2012, the juvenile court

ordered minor to report to drug court for treatment. Less than a month later, however,

minor tested positive for methamphetamine.

       On September 25, 2012, minor admitted to violating the terms of his probation by

failing to abide by school rules or regulations and by using methamphetamine. Minor

was continued as a ward of the court on probation and ordered to serve 15 days in

juvenile hall.




                                              3
       Minor continued to test positive for drugs and failed to comply with drug court

and his probation conditions. On February 7, 2013, after minor removed his ankle

monitoring bracelet without authorization and failed to attend meetings, minor was

terminated from the drug court program. Minor was thereafter ordered to serve 29 days

in juvenile hall.

       On April 3, 2013, minor again admitted to violating the terms of his probation by

disobeying his mother, being destructive at home, and threatening to physically harm his

younger siblings.

       On April 11, 2013, the Juvenile Court of San Bernardino County found minor to

be a resident of Riverside County; minor’s case was transferred to Riverside County.

The Juvenile Court of Riverside County accepted minor’s case on April 19, 2013.

       On May 6, 2013, the Juvenile Court of Riverside County continued minor as a

ward of the court, removed him from the custody of his mother, and ordered minor be

placed in a “suitable foster or group home, relative home, county or private facility with

no preference for such a period as deemed necessary by staff/probation officer.” This

appeal followed.




                                             4
                                              II

                                       DISCUSSION

       A.     Probation Conditions

       At the May 6, 2013 dispositional hearing, the juvenile court imposed a probation

condition that minor not have “any direct or indirect contact with anyone known to be

disapproved of by parent, guardian, the probation officer or staff at placement and any

non relative known by [minor] to be on probation or parole.” (Condition No. f.) The

court also imposed a condition that minor not have “any direct or indirect contact with

anyone known to be disapproved by [minor’s] parent, guardian, probation officer or staff

except in placement.” (Condition No. g.) Minor did not object to these probation

conditions; however, he did object to the gang terms.

       Minor argues that the above-noted probation conditions are overbroad and violate

his constitutional right to association under the federal Constitution.

       A juvenile court “has wide discretion to select appropriate conditions and may

impose ‘“any reasonable condition that is ‘fitting and proper to the end that justice may

be done and the reformation and rehabilitation of the ward enhanced.’”’ [Citations.]” (In

re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.), citing In re Byron B. (2004) 119

Cal.App.4th 1013, 1015; § 730, subd. (b).) Any objection to the reasonableness of a

probation condition is forfeited if not raised at the time of imposition. (See In re Justin S.

(2001) 93 Cal.App.4th 811, 814; see also Sheena K., at p. 883, fn. 4; People v. Welch

(1993) 5 Cal.4th 228, 237.) Constitutional challenges to probation conditions on their



                                              5
face, however, may be raised on appeal without objection in the court below. (Sheena K.,

at pp. 887-889.)

       “The state, when it asserts jurisdiction over a minor, stands in the shoes of the

parents” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941), thereby occupying a “unique

role . . . in caring for the minor’s well-being.” (In re Laylah K. (1991) 229 Cal.App.3d

1496, 1500.) “‘[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.’” (Sheena K., supra, 40 Cal.4th at p. 889.) Minors are deemed to

be “more in need of guidance and supervision than adults,” and “a minor’s constitutional

rights are more circumscribed.” (In re Antonio R., supra, 78 Cal.App.4th at p. 941.)

       Nevertheless, “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.” (Sheena K., supra, 40

Cal.4th at p. 890.) Requiring minor to refrain from associating infringes on his

constitutional right of freedom of association. (U .S. Const., 1st Amend.; see also People

v. Lopez (1998) 66 Cal.App.4th 615, 628; People v. Garcia (1993) 19 Cal.App.4th 97,

102.) Consequently, conditions infringing on constitutional rights must be “tailored to fit

the individual probationer.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373; see also

Sheena K., at p. 886.) The state interest for which the conditions must be narrowly

tailored is minor’s rehabilitation. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.)




                                              6
       “A probation condition may be ‘overbroad’ if in its reach it prohibits

constitutionally protected conduct.” (People v. Freitas (2009) 179 Cal.App.4th 747,

750.) The essential question in an overbreadth challenge “is the closeness of the fit

between the legitimate purpose of the restriction and the burden it imposes on the

defendant’s constitutional rights—bearing in mind, of course, that perfection in such

matters is impossible, and that practical necessity will justify some infringement.” (In re

E.O. (2010) 188 Cal.App.4th 1149, 1153.)

       A probation condition may also be unconstitutionally vague. A vagueness

challenge is based on the “due process concept of ‘fair warning.’” (Sheena K., supra, 40

Cal.4th at p. 890.) Therefore, 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.)

       In Sheena K., the minor was placed on probation subject to the condition that she

not “associate with anyone ‘disapproved of by probation.’” (Sheena K., supra, 40 Cal.4th

at p. 890.) On appeal, the minor asserted that the condition was unconstitutionally vague

and overbroad. (Ibid.) The Supreme Court held that absent a knowledge requirement,

the condition was unconstitutionally vague. The court explained, “‘[B]ecause of the

breadth of the probation officer’s power to virtually preclude the minor’s association with

anyone,’ defendant must be advised in advance whom she must avoid.” (Ibid.) The




                                             7
Supreme Court revised the condition to specify that the probationer need avoid only those

individuals “‘known to be disapproved of’ by [the] probation officer.” (Id. at p. 892.)

       Appellate courts have consistently upheld probation conditions when there is a

personal knowledge element. (See, e.g., In re Victor L. (2010) 182 Cal.App.4th 902,

911-912 [probation condition modified to include a personal knowledge requirement]; In

re Justin S. (2001) 93 Cal.App.4th 811, 816 [court modified a condition prohibiting a

minor’s association with “gang members” to prohibit only association with “persons

known to the probationer to be associated with a gang”].)

       Minor acknowledges that the challenged conditions here contain a knowledge

requirement, i.e., “Not have any direct or indirect contact with anyone known to be

disapproved . . . .” He, however, argues that the challenged conditions do not require any

personal knowledge by minor himself “as to who is disapproved by his parents,

guardians, probation officer, or unidentified ‘staff.’”

       Based on Sheena K., we agree with minor that the challenged conditions are

unconstitutionally vague or overly broad because they do not include an express personal

knowledge requirement. The state’s interest in rehabilitation would not be served by

punishing minor for associating with people who, unknown to him, are disapproved by

his parents, guardians, probation officer, or staff. Although the challenged conditions

include the word “known,” it is not clear who must have knowledge. Accordingly, the

conditions should be modified.




                                              8
       B.     Failing to State Maximum Term of Confinement

       In his opening brief, minor claimed that the juvenile court erred when it failed to

state the maximum term of confinement pursuant to section 726 for the underlying

burglary offense prior to his placement outside of his parents’ home. The People

responded that the juvenile court properly refrained from specifying minor’s maximum

term of confinement because section 726 is inapplicable when a minor is placed in a

nonsecured physical confinement such as suitable foster or group home, relative home, or

a county or private facility. In his reply brief, minor agreed with the People that section

726 is inapplicable in the instant matter, and withdrew this issue. As such, we need not

discuss the issue any further.

       C.     Failing to Award Precommitment Credits

       In his opening brief, minor argued that the juvenile court erred when it failed to

award him precommitment credits at the dispositional hearing. The People responded

that because minor’s placement is not a physical confinement, the juvenile court did not

err in failing to award minor precommitment credits. In his reply brief, minor agreed

with the People and withdrew this issue. Accordingly, we need not address this issue.

                                             III

                                      DISPOSITION

       Probation condition No. f is modified to read as follows: Minor shall not have

direct or indirect contact with anyone known by minor to be disapproved of by




                                             9
parent(s)/guardian(s)/probation officer/staff; and any nonrelative known by minor to be

on probation or parole unless approved by Probation Officer.

       Probation condition No. g is modified to read as follows: Minor shall not have

direct or indirect contact with anyone known by minor to be disapproved by

parent(s)/guardian(s)/probation officer/staff, except in placement.

       In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               RAMIREZ
                                                                                     P. J.


We concur:


HOLLENHORST
                          J.


CODRINGTON
                          J.




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