Filed 11/18/13 In re Oscar M. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re OSCAR M., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F066605

         Plaintiff and Respondent,                                            (Super. Ct. No. JJD064789)

                   v.
                                                                                        OPINION
OSCAR M.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Jennifer Shirk,
Judge.
         Gillian Black, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M.
Levers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       After minor Oscar M. admitted a third probation violation, the juvenile court
ordered him to serve a year in boot camp and imposed various probation conditions. On
appeal, Oscar challenges probation condition No. 11, which requires him to submit to
chemical testing, including submission of “blood, breath, urine, or saliva .…” He
contends that only urine testing is permitted under the Welfare and Institutions Code and,
further, any probation condition for chemical testing other than urine testing is
unconstitutionally overbroad.
       We affirm the judgment.
                       FACTUAL AND PROCEDURAL HISTORIES
       On June 17, 2010, the Tulare County District Attorney filed a single-count juvenile
wardship petition against Oscar alleging the minor committed second degree robbery, a
felony. (Welf. & Inst. Code, § 602,* Pen. Code, § 211.) After a contested jurisdictional
hearing, the juvenile court found the petition true beyond a reasonable doubt.
Specifically, Oscar and two other minors attempted to steal two, 12-packs of beer from a
gas station convenience store; after being confronted by an employee of the store, Oscar
hit the employee with the beer.
       At a hearing on disposition on September 30, 2010, the juvenile court adjudged
Oscar a ward of the court and ordered the maximum time he could be confined in secure
custody to be five years, less two days for time served. Oscar was ordered to serve 365
days in the Youth Facility (sometimes referred to as “boot camp”) under the supervision
of the probation officer. The court also imposed probation terms and conditions.
       In December 2011, the probation officer filed a notice of violation of probation
alleging that Oscar failed to obey his nightly curfew, failed to obey his mother’s
directives, used marijuana, refused to attend school, and associated with gang members or


       *Subsequent     statutory references are to the Welfare and Institutions Code unless
otherwise specified.



                                               2.
associates. Oscar admitted the allegations. At a hearing on disposition on December 22,
2011, the court expressed its concern that Oscar had substance-abuse issues with alcohol
and drugs. The court ordered Oscar to continue as a ward of the court and to serve 90 to
180 days in the Youth Treatment Center Unit under the supervision of the probation
officer. Probation terms and conditions were imposed.
       In July 2012, a second notice of violation of probation was filed alleging that
Oscar failed to report to the probation officer as directed and failed to abide by gang-
related probation terms. Oscar was found in possession of gang indicia and he continued
to associate with known Norteño gang members and associates. Oscar admitted the
allegations but failed to appear for the hearing on disposition scheduled for November 20,
2012. A bench warrant was issued.
       On December 18, 2012, the district attorney filed a third notice of violation of
probation. It was alleged that, on December 14, 2012, Oscar (1) committed felony auto
theft; (2) possessed a stolen vehicle, another felony; and (3) fled from police in the stolen
vehicle at a high rate of speed and in willful and wanton disregard for the safety of
persons and property. In addition, Oscar continued to associate with gang members.
Oscar admitted the allegations, and the court accepted the admission.
       According to a probation officer’s report prepared for disposition, Oscar stated that
he first used alcohol and marijuana when he was 15 years old, and he used to drink three
beers a day on average and smoke two joints a day on average. Since his release from the
residential portion of the Youth Treatment Center Unit, Oscar claimed he only smoked
marijuana on one occasion and drank a couple beers on three occasions. He also reported
that alcohol was involved in his latest probation violation, stating, “I wasn’t thinking, I
was drinking” at the time he stole the car.
       A disposition hearing was held on January 3, 2013. The parties submitted the
matter on the probation officer’s report. The juvenile court ordered Oscar to continue as
a ward of the court and to be committed to the care, custody, and control of the probation


                                              3.
officer for placement in the Tulare County Youth Facility for 365 days. The court’s order
specified that the maximum time Oscar could be confined was five years, less 579 days
for time served. Once again, the court imposed probation terms and conditions. Oscar
raised no objections to the probation conditions.
       Each time the court ordered probation terms and conditions, probation condition
No. 11 was imposed. This condition required the minor to “[s]ubmit to chemical testing
in the form of, but not limited to, blood, breath, urine, or saliva on the direction of the
probation officer or a peace officer.”
       Oscar filed a notice of appeal on January 29, 2013.
                                         DISCUSSION
       Oscar challenges probation condition No. 11, which requires him to submit to
blood, breath, urine, or saliva testing. He contends that a juvenile probation condition for
chemical testing must be limited to urine testing under section 729.3. He also argues that
probation conditions that (1) require withdrawal of blood and (2) permit testing of breath
or saliva in addition to urine are unconstitutionally overbroad.
       Initially, we reject the Attorney General’s claim that Oscar’s challenge has been
forfeited because he did not appeal the first time the probation condition was imposed in
September 2010. We agree that it is too late to challenge the disposition order from 2010.
(See In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138 (Shaun R).) The juvenile court,
however, imposed the challenged probation condition again as part of its disposition order
of January 3, 2013, and Oscar timely appealed this order. His challenge to the January
2013 order, including the imposition of probation condition No. 11, has not been
forfeited.†

       †The  Attorney General cites Shaun R., supra, 188 Cal.App.4th 1129, for her
forfeiture argument. In Shaun R., the court held that the routine continuation of a
previous order without change does not revive the right to appeal. (Id. at p. 1139.) “In
our view, the ‘all prior orders’ provisions [of the new probation order] did not reimpose
the court’s previous orders. They expressly instructed the minor that the court’s prior


                                              4.
       Our Supreme Court has explained that courts have broad authority to impose
probation conditions for minors:

               “The 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 distinguishing
       between the permissible exercise of discretion in probationary sentencing
       by the juvenile court and that allowed in ‘adult’ court, we have 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.)
       Oscar cites section 729.3 for his position that urine testing, but not blood, breath,
or saliva testing, is a permissible probation condition for a minor. Section 729.3
provides:

       “If a minor is found to be a person described in Section 601 or 602[‡] and
       the court does not remove the minor from the physical custody of his or her
       parent or guardian, the court, as a condition of probation, may require 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.” (Italics added.)

orders that did not conflict with the [new] Order ‘remain[ed] in effect’ or in ‘full force
and effect.’” (Id. at pp. 1139-1140.) In this case, the juvenile court’s order of January 3,
2013, was not a routine continuation of the probation order from September 2010.
Rather, the court imposed a new set of probation terms and conditions, which was not
identical to the terms and conditions imposed in September 2010.
       ‡Section  601 applies to minors who persistently or habitually refuse to obey the
reasonable and proper orders of their parents, violate any age-based curfew ordinance, or
have four or more truancies within one school year. (§ 601, subds. (a) & (b).) These
minors are within the jurisdiction of the juvenile court and may be adjudged wards of the
court. (Ibid.) A minor adjudged a ward of the court under section 601 is commonly
referred to as a “status offender[]” because he or she has not committed acts that would
be considered criminal if committed by an adult. (In re P.A. (2012) 211 Cal.App.4th 23,
35 (P.A.).)



                                              5.
       Since Oscar was removed from the custody of his parents, his reliance on
section 729.3 is misplaced. The governing statute is section 730, which applies to minors
who have been adjudged wards of the court under section 602. (§ 730, subd. (a).)
Section 730 provides, in part:

       “When a ward … is placed under the supervision of the probation officer or
       committed to the care, custody, and control of the probation officer, the
       court may make any and all reasonable orders for the conduct of the
       ward .… 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.”
       (§ 730, subd. (b).)
       Here, Oscar was adjudged a ward of the court under section 602 and placed in the
custody of the probation officer. As a result, the juvenile court had authority to “impose
and require any and all reasonable conditions” that it determined to be “fitting and proper
to the end that justice may be done and the reformation and rehabilitation of the ward
enhanced.” (§ 730, subd. (b).) Oscar’s petition offense involved trying to steal beer, and
he admitted to the probation officer that, before he entered treatment, he drank beer and
smoked marijuana on a daily basis. Oscar’s first probation violation involved marijuana
use, and he admitted that he was drinking when he stole the car that resulted in his third
probation violation. Under these circumstances, the imposition of the probation condition
requiring Oscar to submit to chemical testing of blood, breath, urine, or saliva was within
the juvenile court’s discretion. The probation condition was reasonably related to Oscar’s
crime and his history of illegal use of alcohol and marijuana. Indeed, Oscar does not
dispute that monitoring him to ensure he does not use illegal drugs or alcohol is a
legitimate state interest.
       Further, the court’s discretion was not limited as to the type of chemical test it
could require. An appellate court has recently rejected Oscar’s position that section 729.3
limits the juvenile court’s authority under section 730 to impose a probation condition of
chemical testing other than urine testing.


                                              6.
       In P.A., supra, 211 Cal.App.4th at page 27, the minor was adjudged a ward of the
court under section 602 and placed on probation. The minor challenged the probation
condition that he submit to chemical tests of blood and breath. He pointed to
section 729.3, arguing that its express inclusion of urine testing implicitly excluded
testing by any other means. (P.A., supra, at pp. 32-33.) The court observed that
section 730, which also applied to the minor, was much broader and had been invoked to
uphold a probation condition requiring “‘“any tests”’” to determine alcohol or drug use.
(P.A., supra, at p. 34, citing In re Jose R. (1982) 137 Cal.App.3d 269, 278-280.) The
court also noted that sections 729.3 and 730 apply to different classes of minors. (P.A.,
supra, at p. 35.) Minors described in section 729.3 include minors who have not
committed any crime, have not been removed from their parents’ custody, and have not
been adjudged wards of the court. Section 730, on the other hand, applies to minors who
have violated the law and have been removed from their parents’ custody. (P.A., supra,
at p. 35.) Based on the plain language of sections 729.3 and 730, the court concluded that
section 729.3 does not limit the court’s discretion under section 730 to impose blood or
breath testing.§ (P.A., supra, at p. 40.)
       We agree with the court’s reasoning and conclusion in P.A. and therefore reject
Oscar’s claim that a juvenile probation condition for chemical testing must be limited to
urine testing based on section 729.3.
       Oscar next contends that the warrantless, nonconsensual withdrawal and testing of
blood in the absence of emergency or exigency violates the Fourth Amendment.** He

       §The  court also reviewed the legislative history of section 729.3, which was
enacted after section 730, and found no suggestion that the Legislature intended to limit
the court’s authority under section 730 to allow only urine testing. (P.A., supra, 211
Cal.App.4th at pp. 34, 36-40.)
       **Although the argument heading in Oscar’s opening brief also mentions the Fifth
and Fourteenth Amendments, he makes no argument concerning these amendments.
Accordingly, these arguments have been waived. (Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852 [“When an appellant … asserts [a point] but fails to


                                             7.
relies on cases involving drivers suspected of driving while intoxicated. (Schmerber v.
California (1966) 384 U.S. 757, 768-772; Missouri v. McNeely (2013) ___ U.S. ___, 133
S.Ct. 1552.) In McNeely, the United States Supreme Court held that, “in drunk-driving
investigations, the natural dissipation of alcohol in the bloodstream does not constitute an
exigency in every case sufficient to justify conducting a blood test without a warrant.”
(Id. at p. 1568.) From this holding, he argues that the probation condition requiring him
to submit to blood testing without a warrant is unconstitutional.
       The Attorney General correctly points out that Oscar’s argument fails to recognize
the difference between the standard for Fourth Amendment searches applicable to the
general, preconviction population, and the narrower Fourth Amendment standard
applicable to juvenile offenders on probation.

       “As a general rule, ‘[adult] probationers “have a reduced expectation of
       privacy, thereby rendering certain intrusions by governmental authorities
       ‘reasonable’ which otherwise would be invalid under traditional
       constitutional concepts, at least to the extent that such intrusions are
       necessitated by legitimate governmental demands.”’ [Citations.] We
       believe this observation applies fully to juvenile probationers as well.
       [Citation.] Conditions of probation provided by statute may—depending on
       the circumstances—require a juvenile probationer to attend school
       [citation], attend counseling with his parents [citation], respect a curfew
       [citation], submit to drug testing [citation], and participate in a drug or
       alcohol rehabilitation program [citation]. Certainly these conditions
       indicate the juvenile probationer’s diminished privacy over his conduct and
       his person.” (In re Tyrell J. (1994) 8 Cal.4th 68, 85, overruled on another
       point in In re Jaime P. (2006) 40 Cal.4th 128, 130.)
       In light of the diminished expectation of privacy of juvenile probationers, the
drunk driving cases cited by Oscar, which involve the rights of adults who are not on
probation or parole, are inapposite. Courts, for example, routinely uphold the probation
condition of warrantless searches in juvenile cases. (In re Binh L. (1992) 5 Cal.App.4th


support it with reasoned argument and citations to authority, we treat the point as
waived.”].)



                                             8.
194, 203 [citing cases].) The probation condition of urine testing for drugs and alcohol is
permissible even when the minor’s offense does not involve drugs or alcohol and the
minor’s social history indicates no drug or alcohol use. (In re Kacy S. (1998) 68
Cal.App.4th 704, 709-711.) Further, the withdrawal of blood does not always require a
warrant or exigent circumstances. (See In re Calvin S. (2007) 150 Cal.App.4th 443, 449
[rejecting juvenile offender’s Fourth Amendment challenge to Pen. Code, § 296, which
requires felons to provide biological samples, including blood specimens for DNA
testing]); Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 618-633
[upholding warrantless blood testing of railroad employees involved in train accidents
under “special needs” doctrine] (Skinner).)
       This court has explained that “when the state asserts jurisdiction over a minor, it
stands in the shoes of the parents.” (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033-
1034.) “Thus, the juvenile court may impose probation conditions that infringe on
constitutional rights if the conditions are tailored to meet the needs of the minor.” (Id. at
p. 1034.) As we discussed above, probation condition No. 11 requiring Oscar to submit
to chemical testing was reasonably related to his crime and history of using drugs and
alcohol. It was also tailored to meet his needs. Drug testing generally “advances the
rehabilitation of young offenders by seeking to detect alcohol or drug use as a precursor
of criminal activity in order to facilitate intervention at the earliest time.” (In re Kacy S.,
supra, 68 Cal.App.4th at p. 711.) Here, testing was particularly needed because Oscar
continued to smoke marijuana and drink alcohol after he was released from the Youth
Treatment Center Unit.
       Oscar argues that the probation condition allowing blood testing is overbroad
because urine testing “fully satisfie[s]” the need for monitoring Oscar’s drug and alcohol
use. His argument assumes that urine testing is always less intrusive than blood testing,
but this may not be so. The Supreme Court has observed “that the intrusion occasioned
by a blood test is not significant, since such ‘tests are commonplace in these days of


                                               9.
periodic physical examinations and experience with them teaches that the quantity of
blood extracted is minimal, and that for most people the procedure involves virtually no
risk, trauma, or pain.’” (Skinner, supra, 489 U.S. at p. 625.) The procedures for taking a
urine test, on the other hand, require the subject “to perform an excretory function
traditionally shielded by great privacy, raise concerns not implicated by blood or breath
tests.” (Id. at p. 626.)
       In any event, the Attorney General rejects Oscar’s claim that limiting the probation
condition to urine testing alone would fully satisfy the monitoring function. She argues
that a probationer could use over-the-counter products to hide drug use in urine and saliva
samples, which would cause false negatives and frustrate the purpose of probation, or a
probationer could refuse to give a urine sample, causing delay or allowing the probationer
to avoid the test. In such instances, the probation officer’s authority to use alternative
means of chemical testing would fulfill the monitoring function of probation condition
No. 11 in a way that urine testing alone does not. In his reply brief, Oscar responds that
“[t]here is nothing to stop a probation officer or peace officer from seeking a warrant to
draw the probationer’s blood, where there is evidence that the probationer is using illegal
substances.” We find Oscar’s position unpersuasive. Chemical testing, including by
means other than urine testing, is a reasonable probation condition tailored to Oscar’s
rehabilitation. The law does not require a warrant under these circumstances.
       Finally, Oscar argues that the Welfare and Institutions Code does not expressly
permit breath or saliva testing, and these tests are unnecessary because urine testing is
sufficient. This argument fails for the same reasons his challenge to blood testing fails.
Oscar suggests that saliva testing raises “additional issues of relevance and reliability,”
but he cites no authority for his suggestion that saliva tests are unreliable. To the extent
his concern is that saliva may be used to test for DNA, we note that DNA testing is
permissible in this case. (In re Calvin S., supra, 150 Cal.App.4th at p. 449.)




                                             10.
                                    DISPOSITION
      The judgment is affirmed.


                                                               _____________________
                                                                           Oakley, J.††

WE CONCUR:


 _____________________
 Kane, Acting P.J.


 _____________________
 Franson, J.




      ††Judge   of the Superior Court of Madera County, assigned by the Chief Justice
pursuant to article VI, section 6, of the California Constitution.



                                           11.
