Filed 3/7/14 In re S.M. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO

In re S.M., a Person Coming Under the                                B249293
Juvenile Court Law.
                                                                    (Los Angeles County
                                                                    Super. Ct. No. KJ37945)

THE PEOPLE OF THE STATE OF
CALIFORNIA,

         Plaintiff and Respondent,

         v.

S.M.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Geanene
Yriarte, Judge. Affirmed as modified.


         Mary Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette and Lance E. Winters,
Assistant Attorneys General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys
General, for Plaintiff and Respondent.
       Appellant S.M. (minor) appeals from an order of the juvenile court placing her on
informal probation for six months. She challenges the three drug related terms of her
probation and contends that the juvenile court erred in relying on a hearsay statement in
the probation report filed in a previous case. We agree that the condition requiring blood
tests of minor was unauthorized, though we reject minor’s remaining contentions. We
find the appeal is not moot, and we affirm the judgment as modified.
                                    BACKGROUND
       After a petition was filed pursuant to Welfare and Institutions Code section 602,1
alleging that minor had committed a misdemeanor battery while on school, hospital, or
park grounds, minor admitted the allegation. On May 7, 2013, without declaring the
minor a ward of the juvenile court, the court placed minor on informal probation for six
months as authorized by section 725, subdivision (a), and scheduled a progress hearing
for November 5, 2013.
       Among other conditions of probation, the juvenile court ordered minor to
“cooperate in a plan to control the abuse of alcohol, controlled substances, or poisons”; to
“submit to urinalysis and skin checks as directed by the probation officer to detect the use
of narcotics and controlled substances”; and to “submit to testing of blood, breath, or
urine to detect the use of alcohol, narcotics, controlled substances, or poisons whenever
requested by any peace officer.”
       Minor filed a timely notice of appeal.
                                      DISCUSSION
I. Mootness
       Respondent contends that minor’s appeal is moot, because the six-month
probationary period has passed and the probation order was “set to expire by its own
terms on November 5, 2013.” We agree that six months have elapsed since minor was
placed on probation; however we are unable to find the probation order’s “own terms”

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


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setting an automatic expiration date. The juvenile court scheduled a progress hearing for
November 5, 2013, and ordered all parties to appear at that time. If minor violated any
terms of probation during the meantime, the court retained the authority to adjudge minor
a ward of the juvenile court. (§ 725, subd. (a).) Nevertheless, respondent has not sought
to augment the record on appeal with the minutes of any date after entry of the order of
May 7, 2013. Respondent has thus established only a possibility that the appeal is moot.
       Although a minor has the right to appeal from an order for informal supervision
without wardship (In re Do Kyung K. (2001) 88 Cal.App.4th 583, 589), the short, six-
month probationary period would almost always preclude appellate review if the appeal
automatically became moot after that time had elapsed. Thus, the appellate court should
not dismiss such an appeal as moot where the juvenile court has sustained a delinquency
petition based on criminal conduct. (See In re Dana J. (1972) 26 Cal.App.3d 768, 771.)
For this reason, and as respondent has failed to show otherwise, we will assume that the
appeal is not moot, and discuss the merits.
II. Unauthorized blood and breath condition
       Minor contends that ordering her to submit to blood and breath tests was
unauthorized by law, and respondent agrees. Upon sustaining a petition under section
602 and placing the minor on nonwardship probation at home, the juvenile court may not
require the minor to undergo blood and breath tests. (In re P.A. (2012) 211 Cal.App.4th
23, 35-36.) As that probationary condition was unauthorized here, it will be stricken.
III. Hearsay
       Minor contends that the juvenile court erred in considering a statement made by
her mother (mother) to the probation officer in prior delinquency proceedings in which
minor also admitted a misdemeanor battery offense. The April 2012 probation report in
the prior case noted that according to mother, minor had previously been cited for
possession of marijuana on school grounds.2

2      The juvenile court took judicial notice of the court file in case No. KJ37261 and
expressly considered the marijuana possession. Defense counsel objected to the evidence
as a violation of double jeopardy, a claim that is not renewed here.

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       There is no merit to minor’s contention, as she acknowledges that in determining a
proper disposition, the juvenile court must consider any “relevant and material evidence
that may be offered.” (§ 706.) And she concedes that the juvenile court may consider
hearsay and other inadmissible evidence. (See In re Michael V. (1986) 178 Cal.App.3d
159, 167-168, 170.)
       Nevertheless, minor argues that mother’s statement was unreliable evidence of
marijuana possession. She compares mother’s statement with the hearsay statement of an
unidentified declarant in People v. Reed (1996) 13 Cal.4th 217. Minor’s comparison
fails, as Reed involved an adult probation report erroneously admitted to prove that the
defendant’s crime was a serious felony for purposes of a sentence enhancement. (See id.
at pp. 230-231.) Its application is limited to the holding that the hearsay statements of an
unidentified declarant contained in a probation officer’s report are inadmissible for that
purpose, unless they fall within a hearsay exception. (People v. Otto (2001) 26 Cal.4th
200, 209.) This was not an adult sentencing and mother was not an unidentified
declarant. Moreover, the Evidence Code is not generally applicable to a juvenile
dispositional hearing. (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1842-1843.)
IV. Urine testing
       Minor contends that the juvenile court abused its discretion in ordering her to
submit to urine tests.
       Statutory authority expressly grants the juvenile court discretion to impose a
condition requiring “the minor to submit to urine testing upon the request of a peace
officer or probation officer for the purpose of determining the presence of alcohol or
drugs.” (§ 729.3; see also In re Kacy S. (1998) 68 Cal.App.4th 704, 708 (Kacy S.).) “A
juvenile court enjoys broad discretion to fashion conditions of probation for the purpose
of rehabilitation and may even impose a condition of probation that would be
unconstitutional or otherwise improper so long as it is tailored to specifically meet the
needs of the juvenile. [Citation.] That discretion will not be disturbed in the absence of
manifest abuse. [Citation.]” (In re Josh W. (1997) 55 Cal.App.4th 1, 5; see also In re
Sheena K. (2007) 40 Cal.4th 875, 889.)

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       To support her contention, minor cites the criteria for evaluating the
reasonableness of adult parole conditions under the test adopted in People v. Lent (1975)
15 Cal.3d 481 (Lent): “A condition of probation will not be held invalid unless it ‘(1) has
no relationship to the crime of which the offender was convicted, (2) relates to conduct
which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably
related to future criminality . . . .’ [Citation.]” (Id. at p. 486, quoting People v.
Dominguez (1967) 256 Cal.App.2d 623, 627 (Dominguez).) That test has been applied in
juvenile proceedings. (In re Josh W., supra, 55 Cal.App.4th at pp. 5-6.)
       Minor contends that the urine testing condition fails the Lent test because the
condition is not directly related to her offense. She relies on the construction given to the
following quote from Dominguez by the dissent in Kacy S.: “‘If the condition of
probation is not directly related to the crime, the condition may be invalidated.’
[Citation.]” (Kacy S., supra, 68 Cal.App.4th at p. 715 (dis. opn. of Blease, J.), quoting
Dominguez, supra, 256 Cal.App.2d at p. 628.) The dissent construed the Dominguez
language and the Lent test (because it was formulated from the criteria enunciated in
Dominguez) as requiring the probation condition to be directly related to the current
offense. (Kacy S., supra, at p. 715 (dis. opn. of Blease, J.).) Minor concludes from this
that the urine testing condition was invalid because her offense was not drug related.
       In Lent, the California Supreme Court did not cite the Dominguez language on
which minor relies, nor did it hold that a probation condition is invalid if it is not related
to the defendant’s crime, nor did it use the word “directly.” Minor construes the first
criterion (“A condition of probation will not be held invalid unless it ‘(1) has no
relationship to the crime of which the offender was convicted’”) as invalidating any
probation condition that bears no relationship to the current offense. (Lent, supra, 15
Cal.3d at p. 486.) Minor is apparently reading the Lent criteria in the disjunctive, so that
any one of them would invalidate a probation condition.
       The court expressly clarified that the test was in the conjunctive. (Lent, supra, 15
Cal.3d at p. 486, fn 1.) The court later added that this meant that “all three prongs must
be satisfied before a reviewing court will invalidate a probation term. [Citations.] As

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such, even if a condition of probation has no relationship to the crime of which a
defendant was convicted and involves conduct that is not itself criminal, the condition is
valid as long as the condition is reasonably related to preventing future criminality.
[Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) Thus, the probation
condition is not invalid solely because it is unrelated to minor’s offense. So long as the
urine testing condition is reasonably related to future delinquency it should not be
invalidated on appeal. (Kacy S., supra, 68 Cal.App.4th at pp. 709-710.)
       Minor takes issue with the majority’s holding in Kacy S. that in general, testing
minors for alcohol and drugs reasonably relates to future delinquency and rehabilitation,
and thus the urine testing condition may be upheld even in cases where the minor has no
history of drug or alcohol problems. (Kacy S., supra, 68 Cal.App.4th at pp. 709-710.)
Minor contends that Kacy S. should be rejected as wrongly decided because a drug
testing condition cannot be reasonably related to future criminality (the third Lent
criterion) without evidence that substance abuse played a role in the minor’s offense. We
reject minor’s suggestion, as it results in a disjunctive construction in which the first
criterion swallows the third, thus invalidating a probation condition solely because it is
not related to the current crime.
       Minor also contends that Kacy S. went too far in holding that there need be no
history of drug or alcohol problems to justify a urine testing condition. This is not the
occasion to decide whether the Kacy S. court went too far, as the juvenile court in this
case properly considered the evidence of minor’s past marijuana possession on school
grounds, which suggested a history of substance abuse. Thus, under the test minor would
have us apply, the urine testing condition was “reasonably related to preventing future
criminality” and therefore proper. (People v. Olguin, supra, 45 Cal.4th at p. 380; Lent,
supra, 15 Cal.3d at p. 486.) We find no abuse of discretion.
V. Cooperation in plan to control substance abuse
       Minor challenges the condition that she cooperate in a plan to control the abuse of
alcohol, controlled substances, or poisons. She compares it to the psychiatric treatment
ordered as a condition of adult probation in a case where there was no evidence of mental

                                              6
illness or a risk the defendant’s behavior would be repeated. (See In re Bushman (1970)
1 Cal.3d 767, 777 (Bushman), disapproved on another point in Lent, supra, 15 Cal.3d at
p. 486, fn. 1.)
       Upon ordering nonwardship probation under section 725, subdivision (a), the
juvenile court may impose any reasonable conditions of probation, even if not expressly
authorized by statute. (In re Trevor W. (2001) 88 Cal.App.4th 833, 838-839.) The
juvenile court’s broad discretion will not be disturbed in the absence of manifest abuse.
(In re Josh W., supra, 55 Cal.App.4th at p. 5.) As juveniles are deemed to be more in
need of guidance and supervision than adults, a condition of probation that is
impermissible for an adult probationer would not necessarily be unreasonable for a
minor. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) For this reason, minor’s
comparison to Bushman is not helpful.
       Moreover, minor’s comparison assumes that a plan to control substance abuse
would necessarily include a drug treatment program. Minor provides no authority for
that assumption, nor does she cite evidence in the record suggesting that her probation
officer’s plan would include participation in drug treatment, as opposed to a class, a
lecture, or an afternoon of reading. Minor does not contend that her past possession of
marijuana on school grounds cannot justify attending a class or reading a pamphlet.
Instead, minor argues once again that the evidence was insufficient to prove her past
marijuana possession, and thus there is insufficient evidence to support a finding that
substance abuse played a role in her offense. Based on that reason she concludes this
probation condition was not reasonably related to future criminality. As we have found
the evidence was properly considered by the court, we again reject minor’s premise and
find no abuse of discretion.




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                                     DISPOSITION
       The words “blood” and “breath” are stricken from probation condition No. 24, so
that as modified the condition requires minor to “submit to testing of urine to detect the
use of alcohol, narcotics, controlled substances, or poisons whenever requested by any
peace officer.” As so modified and in all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                 ____________________________, J.
                                                 CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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