Filed 11/5/14 In re Kenneth T. CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re KENNETH T., a Person Coming
Under the Juvenile Court Law.
                                                                 D064724
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. JCM231201)

         v.

KENNETH T.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Polly H.

Shamoon and Browder A. Willis III, Judge. Affirmed in part and remanded with

directions.

         Jill Kent, 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, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
       The San Diego County District Attorney's Office filed a juvenile delinquency

petition under section 602 of the Welfare and Institutions Code (undesignated statutory

references will be to the Welfare and Institutions Code unless otherwise specified)

alleging Kenneth T. committed three felony offenses: (1) robbery (counts 1: Pen. Code,

§ 211; victim: Stephanie D.); (2) receiving stolen property (count 2: Pen. Code, § 496,

subd. (a)); and (3) grand theft (count 3: Pen. Code, § 487, subd. (c)).

       Following a contested adjudication hearing, the court found true the allegation that

Kenneth committed the offense of receiving stolen property, but did not declare on the

record whether this offense was a misdemeanor or a felony. The court found not true the

allegations that he committed robbery and grand theft.

       Kenneth raises four contentions on appeal. First, he contends insufficient

evidence supports the juvenile court's finding that he committed the offense of receiving

stolen property.

       Second, Kenneth contends─and the Attorney General agrees─the juvenile court

erred in failing to explicitly declare on the record whether his offense of receiving stolen

property was a felony or a misdemeanor, as required by section 702 and In re Manzy W.

(1997) 14 Cal.4th 1199 (Manzy W.), and thus the case must be remanded for such an

express declaration.

       Third, Kenneth contends the two conditions of probation he now challenges for

the first time─which require that he (1) obtain his probation officer's permission before

he travels out of the county, and (2) be home every day between 6:00 p.m. and 6:00



                                              2
a.m.─are "unconstitutionally overbroad and restrain his liberty under federal and state

law."

        Last, he contends that, if this court determines he waived his right to challenge the

two foregoing conditions of his probation by failing to object to them in the juvenile

court, his counsel's failure to object constituted prejudicial ineffective assistance of

counsel.

        For reasons we shall explain, we conclude that substantial evidence supports the

juvenile court's finding that Kenneth committed the offense of receiving stolen property.

We also conclude that, although Kenneth forfeited his right to challenge on appeal the

two conditions of his probation by failing to object to them in the juvenile court, his

claims fail on the merits, and thus his trial counsel did not render ineffective assistance by

failing to object to them at the disposition hearing. However, we further conclude the

case must be remanded for a determination of whether Kenneth's count 2 offense of

receiving stolen property was a felony or a misdemeanor as required by section 702.

                               FACTUAL BACKGROUND

        A. The People's Case

        On August 22, 2013, at around 9:30 or 10:00 p.m., 17-year-old Stephanie D. was

heading home alone on the San Diego trolley when she saw in the trolley car a group of

about 15 male and female "kids," some of whom she recognized. She testified she had

gotten into a physical altercation with one of the girls in the group when she (Stephanie)

got to the trolley, so she walked to the opposite end of the trolley car. She had boarded



                                               3
the trolley at the Spring Street station and was going to get off at the Massachusetts

Avenue station.

       Stephanie D. testified that, as she was standing in the trolley car, a couple of the

kids had come over to her to say "hi," and then walked back to the group. Soon

thereafter, another Stephanie─Stephanie C.─approached Stephanie D. and said she

wanted to fight with her. When Stephanie D. asked why, Stephanie C. shrugged her

shoulders and walked back to her group.

       When the trolley reached the Lemon Grove station, which is one stop before the

Massachusetts Avenue station, Stephanie D. saw an open seat and started to move toward

it. She testified that when the trolley stopped there, the group of kids saw her move and

some of them got off the trolley, apparently thinking she was about to get off the trolley,

but when she sat down they got back on.

       Stephanie D. testified that when she got off the trolley at the Massachusetts

Avenue station, all the kids in the group also got off. As she was walking toward her

home, about three girls got in front of her, told her they wanted to fight her, and

prevented her from walking away. The boys in the group told Stephanie D. that she

might as well "get it over with." Davis noticed that some of the kids had their cameras

out.

       Stephanie D. testified she started walking away and told the kids to stop following

her. After crossing the street, about eight or nine people circled her. One of the girls,

A.D., announced she wanted to fight Stephanie D. Stephanie asked A.D. why she would

want to fight when A.D. did not even know her. A few of the boys in the group were

                                              4
filming Stephanie D. with their cell phone cameras and yelling, "World Star." Stephanie

D. testified that World Star is a Web site like YouTube that allows one to view videos of

fights.

          Stephanie D. told A.D. she did not want to fight and started walking away. A.D.

replied, "If you don't fight, you might as well tie up your hair because I'm going to pull

all your hair out." A.D. then attacked Stephanie D., pulling her hair and punching her in

the face. Stephanie D. fell to the ground and A.D. got on top of her and continued hitting

her. Stephanie D. then felt a lot of people rushing in and grabbing her satchel bag. She

then saw the kids running back to the trolley station, laughing.

          Stephanie D. testified she saw a short, skinny male with a ponytail─whom she

identified at the hearing as Kenneth─running away with her satchel bag (which she also

referred to as her purse). She stated she heard B.H., who was across the street at the

trolley station, yelling, "Why did you guys take her stuff, you guys didn't need to do that,

give her her stuff back, give her her stuff back." She also heard someone shout, "TRD,"

which stands for "Team Run Dat," a party crew. "Run dat" is slang for fighting.

          Stephanie D. further testified that as she was walking toward her house, L., one of

the males in the group, ran up and returned her purse to her. Later she found that her

Compass card, a pocket knife, and some makeup were missing. Her foster mother called

the police.

          Stephanie D. also testified that she identified Kenneth later that night, at a curbside

lineup at the Massachusetts Avenue trolley station, as the male with the ponytail whom

she had seen running away with her purse. She stated she was able to see Kenneth

                                                 5
clearly because bright light from a police car was shining on him and the other people in

the lineup. She told the police officer who had driven her back to the trolley station that

she was 89 percent sure of her identification of Kenneth. She testified that when she was

looking at the 15 people in the lineup, she was not just looking for anybody who had a

ponytail. Although she had never met Kenneth before the attack, she had seen him

previously at the trolley stop. She testified that because she had seen him before and

already knew what he looked like, she knew it was him when she saw him running away

with her bag.

       B.H. testified for the prosecution under a grant of use immunity. She explained

that on the night of the incident, she was on the trolley with a group of her friends. At

some point, B.H. noticed Stephanie D. was on the trolley with them. B.H. testified that

only one person in her group originally intended to get off at Massachusetts Avenue.

However, they all got off there to watch a fight. The person who wanted to fight

Stephanie D. was A.D.

       B.H. testified that she saw Stephanie D. walking away saying she needed to go

home, A.D. running after her, and Stephanie D. on the ground with A.D. on top of her.

Everyone else was in a circle around them. B.H. testified that Kenneth initially was on

the trolley by himself. However, he was one of the people who got off at Massachusetts

Avenue and followed Stephanie D. He was also one of the people who surrounded

Stephanie D. during the attack.

       Deputy Christopher Allen of the San Diego County Sheriff's Department testified

that he drove Stephanie D. back to the Massachusetts Avenue trolley station where a

                                             6
group of juveniles who might have been involved in the incident had been detained. At a

well-lit curbside lineup of those juveniles, Stephanie D.─who was in Deputy Allen's

car─pointed out Kenneth, who had a ponytail, and said she was 89 percent sure he was

the person whom she saw running away with her purse.

       Deputy Allen testified that he arrested Kenneth. After Kenneth waived his

Miranda1 rights, he told Deputy Allen that he normally got off the trolley at the Lemon

Grove stop, which is before the Massachusetts Avenue stop. However, he claimed that

he missed the Lemon Grove trolley stop that day and had to get off at Massachusetts

Avenue so he could catch the trolley back to Lemon Grove. He also claimed that he

stayed on the trolley platform, he did not have anything to do with the fight, he was not

with the group that was involved in the fight, and he did not know anything about a purse

being taken.

       B. Defense Case

       The defense presented no witnesses.

                                      DISCUSSION

                         I. SUFFICIENCY OF THE EVIDENCE

       Kenneth first contends that insufficient evidence supports the juvenile court's

finding that he committed the offense of receiving stolen property. We reject this

contention.




1      Miranda v. Arizona (1966) 384 U.S. 436.
                                             7
       A. Standard of review

       When assessing a challenge to the sufficiency of the evidence supporting a

conviction, we apply the substantial evidence standard of review, under which we view

the evidence "in the light most favorable to the judgment below to determine whether it

discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid

value—such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v.

Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to cases in

which the prosecution relies mainly on circumstantial evidence." (People v. Maury

(2003) 30 Cal.4th 342, 396.)

       We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate

the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.

Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the

testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34

Cal.4th 1149, 1181.) Thus, "[c]onflicts and even testimony which is subject to justifiable

suspicion do not justify the reversal of a judgment." (People v. Maury, supra, 30 Cal.4th

at p. 403.)

       "If the defendant fails to present us with all the relevant evidence, or fails to

present that evidence in the light most favorable to the People, then he cannot carry his

burden of showing the evidence was insufficient because support for the [trier of fact's]

verdict may lie in the evidence he ignores." (People v. Sanghera (2006) 139 Cal.App.4th

1567, 1574.)

                                              8
       B. Analysis

       As this court explained in In re Anthony J. (2004) 117 Cal.App.4th 718, 728, to

sustain a conviction for receiving stolen property (Pen. Code, § 496, subd. (a)), the

prosecution "must prove (1) the property was stolen; (2) the defendant knew it was

stolen, and (3) the defendant had possession of it." "The requisite possession of the

stolen property . . . need not be exclusive." (Ibid.) "However, mere presence near the

stolen property in and of itself is insufficient evidence of possession to sustain a

conviction for receiving stolen property." (Ibid.)

       Thus, to prove the delinquency petition allegation that Kenneth committed the

offense of receiving stolen property, the People had to establish beyond a reasonable

doubt: (1) Stephanie D.'s satchel bag was stolen; (2) Kenneth knew that bag was stolen;

and (3) he possessed the bag at some point after it was stolen. (People v. Russell (2006)

144 Cal.App.4th 1415, 1425.)

       Here, Kenneth challenges only the sufficiency of the evidence establishing the

third element; that is, he only challenges the sufficiency of the evidence supporting the

court's implied finding that he possessed Stephanie D.'s bag after it was stolen from her.

       Viewing the evidence in the light most favorable to the judgment, as we must

(People v. Johnson, supra, 26 Cal.3d at p. 578), we conclude substantial

evidence─particularly Stephanie D.'s eyewitness identification testimony, B.H.'s

eyewitness testimony that Kenneth was present during the attack, and the consciousness-

of-guilt evidence showing Kenneth lied to the police about his whereabouts during the



                                              9
attack─strongly and sufficiently supports the court's finding that Kenneth possessed

Stephanie D.'s bag after it was stolen from her.

       First, Stephanie D. provided strong identification testimony. Specifically, she

testified that, after she fell to the ground and felt her attackers grabbing her satchel bag,

she saw a short, skinny male with a ponytail running away with her bag. At trial she

identified Kenneth as the male whom she had seen running away with her bag.

       Stephanie D. also testified that, at the curbside lineup at the Massachusetts Avenue

trolley station after the attack, she identified Kenneth as the male with the ponytail whom

she had seen running away with her purse. She testified that she was able to see Kenneth

clearly because bright light from a police car was shining on him and the other people in

the lineup, and that she told the police officer who had driven her back to the trolley

station (Deputy Allen) that she was 89 percent sure of her identification of Kenneth.

Kenneth disregards Stephanie D.'s explanation on cross-examination that she did not tell

Deputy Allen she was 100 percent sure of her identification only because she was on the

ground and she "couldn't see who initially snatched [her satchel bag]." (Italics added.)

She then reiterated, however, that she "saw him [(Kenneth)] running with [her] bag."

       Kenneth also disregards Stephanie D.'s testimony that when she was looking at the

15 people in the lineup, she was not just looking for anybody who had a ponytail. She

testified that, although she had never met Kenneth before the attack, she had seen him

previously at the trolley stop. She further testified that because she had seen him before

and already knew what he looked like, she knew it was him when she saw him running

away with her bag.

                                              10
       Stephanie D.'s strong eyewitness identification of Kenneth as the male she saw

running away with her satchel bag is sufficient by itself to sustain the juvenile court's

finding that Kenneth knowingly possessed her bag after it was stolen from her during the

attack. As already discussed, we do not reweigh the evidence, resolve conflicts in the

evidence, or reevaluate the credibility of witnesses. (People v. Ochoa, supra, 6 Cal.4th at

p. 1206; People v. Jones, supra, 51 Cal.3d at p. 314.) Furthermore, the uncorroborated

testimony of a single witness is sufficient to sustain a conviction or true finding "unless

the testimony is physically impossible or inherently improbable." (People v. Scott (1978)

21 Cal.3d 284, 296.) Here, the identification testimony provided by Stephanie D. is

neither physically impossible nor inherently improbable, and thus constitutes sufficient

substantial evidence of Kenneth's post-theft possession of the bag. Kenneth's suggestion

that there was another male with a ponytail at the scene of the attack who could have

been the person Stephanie D. saw running away with her bag is unavailing.

       Also, "when the circumstances surrounding the identification and its weight are

explored at length at trial, [and] eyewitness identification is believed by the trier of fact,

that determination is binding on the reviewing court." (In re Gustavo M. (1989) 214

Cal.App.3d 1485, 1497.) Here, as the circumstances surrounding Stephanie D.'s

identification of Kenneth and the weight to be given to her testimony were explored at

length at the trial, the juvenile court's determination that her identification of Kenneth

should be believed is binding on this court. (Ibid.)

       Furthermore, by failing to present all the relevant evidence on this issue, and

failing to present that evidence in the light most favorable to the People, Kenneth has not

                                              11
carried his burden of showing the evidence of his post-theft possession of Stephanie D.'s

satchel bag was insufficient. (People v. Sanghera, supra, 139 Cal.App.4th at p. 1574.)

          Additional substantial evidence supports the court's finding that Kenneth

possessed Stephanie D.'s satchel bag after it was stolen from her during the attack. "The

inference of consciousness of guilt from willful falsehood or fabrication or suppression of

evidence is one supported by common sense." (People v. Holloway (2004) 33 Cal.4th 96,

142.)

          Here, the prosecution presented substantial evidence that circumstantially supports

the reasonable inference drawn by the juvenile court that Kenneth demonstrated

consciousness of guilt by lying to Deputy Allen about his whereabouts at the time of the

attack. Specifically, Deputy Allen testified that, after Kenneth waived his Miranda

rights, he told Deputy Allen that he stayed on the Massachusetts Avenue trolley platform,

he was not with the group that was involved in the fight, and he did not know anything

about a purse being taken. However, B.H. testified under a grant of immunity that she

saw Kenneth at the scene of the attack. As already discussed, Stephanie D. testified she

saw Kenneth running away with her bag. Crediting the testimony of both Stephanie D.

and B.H., and finding there was circumstantial evidence of Kenneth's guilt, the court

stated:

             "The circumstantial evidence we have, [Stephanie D.] says there's
             this group of kids and Kenneth is definitely part of it. You have
             [B.H. who] corroborates that and says there's this group of kids,
             Kenneth is definitely part of it. He is not next to me. He is five or
             six feet away, and then you have Kenneth saying I don't know what
             any of you people are talking about, I wasn't at the scene, I was at
             the trolley platform, I missed my stop, I'm waiting for the next

                                               12
          trolley to come. What is that circumstantial evidence of? Well,
          that's circumstantial evidence of consciousness of guilt. [¶] . . . [¶]
          So we have direct evidence putting him there and circumstantial
          evidence putting him there. Is it a tie in my eyes that goes to
          [Kenneth], no. . . . It is unreasonable to think that Kenneth wasn't at
          the scene, given that now two separate people put him there and
          there's an identification made."

       For all of the foregoing reasons, we conclude that substantial evidence supports

the court's finding that Kenneth possessed Stephanie D.'s bag after it was stolen from her.

Accordingly, we affirm the court's finding that Kenneth committed the crime of receiving

stolen property as charged in count 2 of the petition.

  II. THE COURT'S FAILURE TO EXPLICITLY DECLARE WHETHER KENNETH'S
           COUNT 2 OFFENSE WAS A MISDEMEANOR OR A FELONY

       Kenneth next contends the juvenile court erred in failing to declare on the record

whether his count 2 offense of receiving stolen property was a felony or a misdemeanor,

as required by section 702 and Manzy W., supra, 14 Cal.4th 1199, and thus this case must

be remanded to the juvenile court for such a determination. The Attorney General agrees

this case should be remanded.

       Section 702 provides in part: "If the minor is found to have committed an offense

which would in the case of an adult be punishable alternatively as a felony or a

misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (Italics

added.)

       The California Supreme Court has explained that "[this] requirement is obligatory:

'[S]ection 702 means what it says and mandates the juvenile court to declare the offense a

felony or misdemeanor.'" (Manzy W., supra, 14 Cal.4th at p. 1204, quoting In re Kenneth


                                             13
H. (1983) 33 Cal.3d 616, 619 (Kenneth H.).) Manzy W. reiterated that section 702

unambiguously requires "an explicit declaration by the juvenile court whether an offense

would be a felony or misdemeanor in the case of an adult." (Manzy W., at p. 1204, italics

added.)

       In addition, rule 5.780(e)(5) of the California Rules of Court provides:

          "(e) If the court determines . . . by proof beyond a reasonable doubt
          in a section 602 matter, that the allegations of the petition are true,
          the court must make findings on each of the following, noted in the
          order: [¶] . . . [¶] In a section 602 matter, the degree of the offense
          and whether it would be a misdemeanor or a felony had the offense
          been committed by an adult. If any offense may be found to be
          either a felony or a misdemeanor, the court must consider which
          description applies and expressly declare on the record that it has
          made such consideration, and must state its determination as to
          whether the offense is a misdemeanor or a felony. These
          determinations may be deferred until the disposition hearing."
          (Italics added.)

       That a section 602 petition sustained by the juvenile court describes a charged

offense as a felony does not by itself indicate compliance with the court's statutory

obligation under section 702 to explicitly declare whether the offense is a felony or

misdemeanor. (Kenneth H., supra, 33 Cal.3d at pp. 619-620; In re Ricky H. (1981) 30

Cal.3d 176, 191 ["The mere specification in the petition of an alternative

felony/misdemeanor offense as a felony has been held insufficient to show that the court

made the decision and finding required by section 702."].) Likewise, juvenile court

minutes containing a notation that the court found the minor committed a charged felony

offense does not establish compliance with the court's statutory obligation under section




                                             14
702 to explicitly declare whether the offense is a felony or misdemeanor if the transcript

of the hearing does not support the notation. (Ricky H., supra, 30 Cal.3d at p. 191.)

       Here, at the adjudication hearing held on September 19, 2013, the juvenile court

found true the count 2 petition allegation that Kenneth received stolen property in

violation of Penal Code section 496, subdivision (a). As the parties acknowledge, this

offense, had it been committed by an adult, would have been punishable as either a

felony or a misdemeanor. (Ibid.) Thus, the juvenile court was required under section 702

to explicitly declare on the record whether the offense was a misdemeanor or a felony.

However, as the record shows and the parties acknowledge, it failed to make such an

explicit declaration at any of the hearings. Accordingly, this case must be remanded to

the juvenile court with directions to make an explicit declaration on the record whether

Kenneth's offense of receiving stolen property in violation of Penal Code section 496,

subdivision (a) is a misdemeanor or a felony as required by section 702.

                           III. CONDITIONS OF PROBATION

       Kenneth challenges for the first time two conditions of probation requiring that he

(1) obtain his probation officer's permission before he travels out of the county and (2) be

home every day between 6:00 p.m. and 6:00 a.m. (subject to specified exceptions

discussed, post). He claims these conditions are "unconstitutionally overbroad and

restrain his liberty under federal and state law." He also claims that, if this court

determines he waived his right to challenge these conditions of his probation by failing to

object to them in the juvenile court, his counsel's failure to object constituted prejudicial

ineffective assistance of counsel. We conclude that, although Kenneth forfeited his right

                                              15
to challenge on appeal the two conditions of his probation by failing to object to them in

the juvenile court, his claims would fail on the merits and, thus, his trial counsel did not

render ineffective assistance by failing to object to those conditions at the disposition

hearing.

       A. Background

       At the disposition hearing held on October 3, 2013, the juvenile court declared

Kenneth a ward of the court and ordered that he be placed on probation subject to a

variety of conditions, including the two conditions he challenges in this appeal, which

provide: (1) "The minor shall not leave the County of San Diego without permission of

the Probation Officer"; and (2) "The minor shall be at [his] legal residence between the

hours of 6:00 PM and 6:00 AM unless in the company of [his] parent, legal guardian, or

other adult person having legal care and custody of the minor, subject to modification at

the Probation Officer's discretion. [¶] The minor has an exception to curfew for verifiable

school or employment, religious activities, organized sports or court-ordered programs."

(Italics added.)

       The record shows, and the parties acknowledge, that Kenneth, through his trial

counsel, did not object to these or any of the other conditions of his probation. In fact,

Kenneth's counsel told the court, "My client has indicated he will comply with those

conditions."

       B. General Legal Principles

       "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 (Antonio R.).) When a

                                             16
juvenile court adjudges a minor a ward of the court under section 602 and places the ward

under the supervision of a probation officer, "[t]he court may impose and require any and

all reasonable [probation] 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."

(§ 730, subd. (b).)

       "The juvenile court has wide discretion to select appropriate [probation]

conditions . . . ." (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) The

permissible scope of the juvenile court's discretion in formulating the terms of a minor's

probation is greater than that allowed for adult probationers "because juveniles are

deemed to be 'more in need of guidance and supervision than adults, and because a

minor's constitutional rights are more circumscribed.'" (In re Victor L. (2010) 182

Cal.App.4th 902, 910; Antonio R., supra, 78 Cal.App.4th at p. 941.) Thus, a probation

condition "'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, at p. 889.)

       Generally, a probation condition will be upheld 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, abrogated by

Proposition 8 on another ground as explained in People v. Wheeler (1992) 4 Cal.4th 284,

290-292.)



                                             17
       Furthermore, the juvenile court must not order conditions that are

unconstitutionally overbroad. (Sheena K., supra, 40 Cal.4th at p. 890.) A probation

condition is unconstitutionally overbroad if it imposes limitations on the probationer's

constitutional rights and it is not closely or narrowly tailored and reasonably related to the

compelling state interest in reformation and rehabilitation. (Ibid.; In re Victor L., supra,

182 Cal.App.4th at p. 910.) "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.)

       In an appropriate case, a probation condition that is not "'sufficiently narrowly

drawn'" may be modified and affirmed as modified. (People v. Lopez (1998) 66

Cal.App.4th 615, 629; see also In re E.O., supra, 188 Cal.App.4th at p. 1158.)

       1. Standard of review

       Generally, "[t]he juvenile court's exercise of discretion in establishing conditions

of probation in juvenile cases 'will not be disturbed in the absence of manifest abuse.'"

(In re Christopher M. (2005) 127 Cal.App.4th 684, 692; In re Josh W. (1997) 55

Cal.App.4th 1, 5.) However, a facial challenge to a term of probation on the ground of

unconstitutional overbreadth or vagueness that is capable of correction without reference

to the particular sentencing record developed in the trial court presents a pure question of

law, and we review such challenges de novo. (Sheena K., supra, 40 Cal.4th at p. 887; In

re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

                                             18
       C. Analysis

       1. Forfeiture

       The Attorney General argues that Kenneth forfeited his claim that the two

conditions of probation he challenges on appeal are unconstitutionally overbroad because

he did not raise this claim in the juvenile court. We agree.

       Challenges to probation conditions ordinarily must be raised in the trial court or

appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5

Cal.4th 228, 234-235 [extending the forfeiture rule to a claim that probation conditions

are unreasonable, when the probationer fails to object on that ground in the trial court].)

The rule foreclosing appellate review helps discourage the imposition of invalid

probation conditions and reduce the number of costly appeals. (Id. at p. 235.)

       The forfeiture rule applies to appellate claims that involve discretionary sentencing

choices or allegedly unreasonable probation conditions, because "characteristically the

trial court is in a considerably better position than the Court of Appeal to review and

modify a sentence option or probation condition that is premised upon the facts and

circumstances of the individual case." (Sheena K., supra, 40 Cal.4th at p. 885.)

       However, as the California Supreme Court explained in Sheena K., the forfeiture

rule does not apply to a challenge on appeal to a probation condition on the ground of

unconstitutional overbreadth or vagueness when the challenge is a "facial" challenge in

that its resolution does "not require scrutiny of individual facts and circumstances"

(Sheena K., supra, 40 Cal.4th at p. 885), and the challenge thus presents a "pure question

of law" because the alleged "facial constitutional defect[]" in the probation condition is

                                             19
"capable of correction without reference to the particular sentencing record developed in

the trial court." (Id. at p. 887.)

       The corollary to this Sheena K. facial challenge nonforfeiture rule (hereafter

referred to as the Sheena K. corollary) is that the forfeiture rule does apply to a challenge

on appeal to a probation condition on the ground of unconstitutional overbreadth or

vagueness when resolution of the challenge "require[s] scrutiny of individual facts and

circumstances" (Sheena K., supra, 40 Cal.4th at p. 885), and the challenge therefore does

not present a "pure question of law" because the alleged constitutional defect in the

challenged condition is not "capable of correction without reference to the particular

sentencing record developed in the trial court." (Id. at p. 887.)

       Here, Kenneth's challenges to the two conditions of his probation at issue here on

the ground they are unconstitutionally overbroad do not qualify as facial challenges, and

thus they are forfeited under the Sheena K. corollary, because (1) he claims the conditions

are unrelated to his present case and are not adequately tailored to the purposes of his

probation, (2) his challenges are thus premised upon the "individual facts and

circumstances" (Sheena K., supra, 40 Cal.4th at p. 885) of his case and the alleged

constitutional defects in the challenged conditions are not "capable of correction without

reference to the particular sentencing record developed in the trial court" (id. at p. 887),

and (3) his counsel did not raise these challenges in the juvenile court.

       Specifically, Kenneth claims the first challenged condition of his probation, which

requires him to obtain his probation officer's permission before he travels out of the

county, is unconstitutionally overbroad and should be "modified to allow him to leave the

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county with permission of either the probation department or his mother" (italics added)

because "[his] crime did not occur out-of-county; travel in and of itself is not criminal; he

has no known gang ties; leaving the county bears no relation to the crime of which he

was convicted"; and [t]here is no rehabilitative purpose to be achieve by restricting his

ability to travel because [he] did not commit a crime out of county." This challenge

cannot be deemed a facial challenge because its resolution requires scrutiny of individual

facts and circumstances in this case. Thus, under the Sheena K. corollary, Kenneth

forfeited the right to challenge on appeal this condition of probation on the ground of

unconstitutional overbreadth by failing to challenge the condition on this ground in the

juvenile court.

       Kenneth also claims the curfew condition, which requires that he be at home every

day between 6:00 p.m. and 6:00 a.m., is unconstitutionally overbroad because (among

other things) "there is no nexus between the behavior to be deterred and the excessively

early curfew that justifies such infringement on [his] right to travel and associate"; "there

is no allegation [he] is in a gang"; and "[k]eeping [him] inside his home from 6:00 p.m. is

not necessary to curb gang behavior because such negative activity is not demonstrated in

[his] social history." This challenge also cannot be deemed a facial challenge because its

resolution similarly requires scrutiny of individual facts and circumstances in this case.

Thus, under the Sheena K. corollary, Kenneth also forfeited the right to challenge on

appeal this condition of probation on the ground of unconstitutional overbreadth by

failing to challenge the condition on this ground in the juvenile court.



                                             21
       2. Kenneth's related claim of ineffective assistance of counsel

       Last, we reject Kenneth's related claim that his trial counsel rendered ineffective

assistance by failing to object at the disposition hearing to the two conditions of probation

Kenneth challenges in this appeal. To prevail on a claim of ineffective assistance of

counsel, a defendant must establish that the defendant bears the burden to show that: (1)

counsel's representation fell below an objective standard of reasonableness under

prevailing professional norms (Strickland v. Washington (1984) 466 U.S. 668, 688); and

(2) counsel's deficient performance was prejudicial; i.e., there is a reasonable probability

that, but for counsel's failings, the result would have been more favorable to the

defendant. (Id. at p. 694; People v. Jones (2010) 186 Cal.App.4th 216, 235.) We

conclude that, although Kenneth forfeited his right to challenge the two conditions of his

probation on appeal, his claim that the conditions are unconstitutionally overbroad would

fail on the merits and, thus, his trial counsel did not render ineffective assistance by

failing to object to those conditions at the disposition hearing.

       a. Curfew condition

       In support of his claim that the probation condition imposing a daily curfew that

starts at 6:00 p.m. and ends at 6:00 a.m. is unconstitutionally overbroad and should be

modified to start at 10:00 p.m., Kenneth relies on section 729.2, subdivision (c), which

provides in part:

          "If a minor is found to be a person described in Section . . . 602 and
          the court does not remove the minor from the physical custody of the
          parent or guardian, the court as a condition of probation, except in
          any case in which the court makes a finding and states on the record
          its reasons that that condition would be inappropriate, shall:

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          [¶] . . . [¶] (c) Require the minor to be at his . . . 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 . . . ." (Italics added.)

       However, section 729.2 "serve[s] as a floor, not a ceiling, for juvenile probation

conditions." (In re Walter P. (2009) 170 Cal.App.4th 95, 99-100.) Thus, a curfew

condition more restrictive than that set forth as a beginning guideline in section 729.2,

subdivision (c) may be imposed in the exercise of the juvenile court's discretion to serve

the court's statutory purpose─set forth in section 730, subdivision (b)─of enhancing the

reformation and rehabilitation of the ward (here, Kenneth). (See In re Jason J. (1991)

233 Cal.App.3d 710, 719 [affirming a probation condition requiring curfew from "dark"

to 6:00 a.m.], disapproved on other grounds in People v. Welch, supra, 5 Cal.4th at p.

237; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1499, 1502 (Laylah K.) [affirming a

probation condition imposing a curfew from 8:00 p.m. to 5:00 a.m.], disapproved on

other grounds in In re Sade C. (1996) 13 Ca1.4th 952, 962, fn. 2.)

       Laylah K. is instructive. In that case an 8:00 p.m. curfew condition was upheld

against a constitutional challenge where it was tailored to provide the minor and her sister

with structure and discipline, which was lacking in their home environment, and to

prevent future criminal behavior. (Laylah K., supra, 229 Cal.App.3d at pp. 1499, 1502.)

       Here, the record shows the curfew condition imposed on Kenneth was

appropriately tailored to meet his need for parental supervision, to provide him with

structure and discipline in his home environment, and to help prevent his return to

criminal activity. Parental supervision was lacking. According to the probation officer's

social study, which the court read and considered, Kenneth had had no contact with his

                                             23
father in seven years and believed his father was in prison. He had a troubled

relationship with his mother, who had her own criminal record. (CT 109, 110, 115.)

Kenneth's history includes truancy, use of illegal drugs (marijuana) and alcohol, fighting

at school and with his mother, and a failing academic record.

       The travel restriction imposed by the challenged condition of Kenneth's probation

is properly tailored to assist the court in monitoring his whereabouts and conduct, given

the lack of parental supervision at home by his mother (discussed, ante) and Kenneth's

prior and current criminal activity.

       Kenneth's reliance on Antonio R. is unavailing. In that case the Court of Appeal

upheld a similar out-of-country travel restriction, noting it "[had] confidence that any

reasonable request to travel [outside the county] will be honored . . . by [the ward's]

probation officer, and this safety valve saves the condition." (Antonio R., supra, 78

Cal.App.4th at p. 942.)

       Kenneth's reliance on In re Daniel R. (2006) 144 Cal.App.4th 1 is also unavailing.

In that case, the juvenile court imposed a probation condition prohibiting the minor from

traveling to Mexico. (Id. at p. 4.) On appeal, he argued that the condition was

unconstitutionally overbroad and should be modified to permit such travel with the

permission of his probation officer, provided he traveled with his parents. (Id. at pp. 5-6.)

The Court of Appeal observed that travel to Mexico was not related to any of the minor's

theft crimes, and there was no evidence before the juvenile court to show that he had ever

committed a crime in Mexico, had any gang ties to Mexico, or had engaged in any

questionable conduct in that country. (Id. at p. 7.) Nevertheless, the Daniel R. court

                                             24
concluded that the travel restriction condition with modifications the minor requested

(such as recounting to the probation officer what occurred during his visits to Mexico)

was reasonable and provided "a safety valve similar to that in Antonio R., supra, 78

Cal.App.4th 937, which save[d] it from constitutional infirmity." (In re Daniel R., supra,

144 Cal.App.4th at p. 8.)

       As Kenneth has not shown and cannot establish that the travel restriction condition

of his probation is unconstitutionally overbroad, he also has not demonstrated and cannot

show that his counsel provided unconstitutionally ineffective assistance by failing to

object to that condition.

                                     DISPOSITION

       The case is remanded to the juvenile court for a determination of whether

Kenneth's count 2 offense of receiving stolen property was a felony or a misdemeanor as

required by Welfare and Institutions Code section 702. In all other respects, we affirm

the juvenile court's judgment.


                                                                                NARES, J.

WE CONCUR:


HUFFMAN, Acting P. J.


McDONALD, J.




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