Filed 10/28/13 In re D.R. CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


In re D.R., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,
v.
D.R.,                                                                A137789
         Defendant and Appellant.                                    (Alameda County
                                                                     Super. Ct. No. SJ120201011)



         D.R. appeals a dispositional order entered after the juvenile court sustained a
wardship petition under Welfare and Institutions Code section 602.1 He contends that the
minute order issued after the dispositional hearing improperly included four probation
conditions that were not orally pronounced at the hearing, and he further contends that
two of those conditions are unconstitutionally vague. We remand for clarification
because, although we cannot be certain based on the record before us, the conditions
appear to have been included in the minute order as a result of clerical error. On remand,
if the juvenile court clarifies that it intended to impose these four conditions, two of them
must nonetheless be stricken or modified because they are impermissibly vague as they
are currently expressed in the minute order.

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

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                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       D.R. was adjudged a ward of the court after the juvenile court sustained an
allegation of attempted robbery. (§ 602; Pen. Code, §§ 664, 211.) At the dispositional
hearing, the court stated that it had read and considered the probation officer‟s report
filed in anticipation of the hearing. The report recommended informal probation and
numerous conditions of probation. The court ordered formal probation but stated that
“[i]n every other respect I‟m prepared to go along with the recommendations of the
probation department.” The court declared D.R. a ward of the court under “standard
conditions of probation and the following additional conditions.” The court then recited
21 probation conditions which are substantially the same as those listed in the probation
officer‟s report.2
       The hearing‟s minute order, however, includes the following four probation
conditions that were neither orally imposed by the court nor listed in the probation report:
“[d]o not frequent any campus other than the school of enrollment”; “[b]e of good
citizenship and good conduct”; “be of good behavior and perform well”; and “[d]o not
use any name or birthdate other than your true name and birthdate when identifying
yourself to a peace officer.” The minute order was served on D.R., and he timely
appealed.3




2
  The probation conditions recited by the court and the probation conditions contained in
the probation officer‟s report differ in only two ways: the court reduced the number of
weekends D.R. was required to participate in a program of citizenship and work, and the
court chose not to impose the recommended probation investigation, probation
supervision, and drug testing fees.
3
 While the validity of a probation condition is often put at issue after a defendant‟s
probation is revoked, here there is no indication that D.R. has violated any of his
probation conditions.

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                                             II.
                                        DISCUSSION
        A.     The Four Challenged Probation Conditions Appear to Be Included
               in the Minute Order as a Result of Clerical Error.
        D.R. contends that the four challenged conditions are included in the minute order
due to clerical error and must be stricken. Although we agree with him that these
conditions appear to have been included in the minute order as a result of a clerical error,
we cannot be certain on the record before us. We therefore decline to strike them, and we
remand the issue to the juvenile court for clarification of whether it intended to impose
them.
        In arguing that the conditions must be stricken, D.R. relies on several cases
involving discrepancies between an oral pronouncement of judgment and the judgment
entered in the record. These cases stand for the proposition that when there is a conflict
between a judge‟s oral pronouncement and a subsequent written order, a presumption
arises that the written order contains a clerical error and that the pronouncement controls.
(See, e.g., People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment does not
control if different from the trial court‟s judgment and may not add to or modify the
judgment]; People v. Mesa (1975) 14 Cal.3d 466, 471, superseded on other grounds as
stated in People v. Turner (1998) 67 Cal.App.4th 1258, 1267-1268 [“a discrepancy
between the judgment as orally pronounced and as entered in the minutes is presumably
the result of clerical error”]; People v. Zackery (2007) 147 Cal.App.4th 380, 385-386
[clerk‟s minutes should reflect what occurred at the hearing].)
        Here, however, there is not necessarily a conflict between the juvenile court‟s oral
pronouncement and the minute order because it is at least theoretically possible that the
court purposely added the four additional conditions when the minute order was issued.
Unlike its authority regarding other aspects of sentencing, a trial court retains continuing
authority to revoke or modify probation terms. “[A] grant of probation is not part of the
judgment that creates vested rights; the court has the authority to revoke, modify or
change its order.” (People v. Thrash (1978) 80 Cal.App.3d 898, 900-901 (Thrash); see
also People v. Labarbera (1949) 89 Cal.App.2d 639, 643.) As a result, courts can change

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or add conditions of probation, which “need not be spelled out in great detail in court as
long as the defendant knows what they are; to require recital in court is unnecessary in
view of the fact the probation conditions are spelled out in detail on the probation order
and the probationer has a probation officer who can explain to him the contents of the
order.” (Thrash at pp. 901-902.)
       In Thrash, the Court of Appeal upheld an order revoking the defendant‟s probation
based on a violation of a probation condition that had not been included in the lower
court‟s original pronouncement of judgment. (Thrash, supra, 80 Cal.App.3d at pp. 900-
902.) The lower court suspended imposition of the defendant‟s sentence “on condition he
serve one year in custody and „on other conditions set forth in the probation report.‟ ”
(Id. at p. 900.) Although the probation report did not contain the challenged probation
condition, the condition was listed on an amended probation order that the defendant
received. (Ibid.) The court affirmed the order revoking probation because the defendant
knew about the condition, despite the fact that it was not orally imposed nor listed in the
report. (Id. at pp. 901-902.)
       In In re Frankie J. (1988) 198 Cal.App.3d 1149 (Frankie J.), a juvenile court
order revoking probation was similarly upheld after the defendant violated a probation
condition that had not been orally imposed. (Id. at pp. 1152-1155.) The juvenile court
had placed the defendant in a youth center and imposed various conditions of probation
including “ „the usual terms and conditions.‟ ” (Id. at p. 1152.) Upon his release, the
defendant signed a preprinted form titled “ „Terms and Conditions of Probation,‟ ” which
included a condition prohibiting the possession of dangerous weapons. (Ibid.) The
defendant‟s probation was later revoked when he violated the weapons condition. (Id. at
p. 1153.) The Court of Appeal rejected the defendant‟s argument that the weapons
condition should have been orally communicated to him in court, stating that “[t]his
contention was specifically addressed and rejected in [Thrash].” (Id. at p. 1155.)
       In this case, while it is possible that the conditions were intentionally included in
the minute order, it is at least as likely, and perhaps more likely, that they were included
as a result of clerical error. Other than the mere presence of the conditions in the minute


                                              4
order, the record lacks any indication that the juvenile court intended to modify its
original oral pronouncement by imposing the conditions. In both Thrash and Frankie J.,
it was clear that the challenged conditions were intentionally imposed by the trial court
and not the result of clerical error. In Thrash, the court issued an amended probation
order that contained the new travel restriction. (Thrash, supra, 80 Cal.App.3d 898 at
p. 900.) In Frankie J., the “usual terms and conditions” imposed by the court at the
hearing were specifically enumerated on a preprinted form that the defendant later
received. (Frankie J., supra, 198 Cal.App.3d at p. 1152.) In this case, such clarity is
lacking.
       At the dispositional hearing, the court declared D.R. a ward of the court “under the
standard conditions of probation and the following additional conditions.” (Italics added.)
It is unclear from the record whether the court‟s recital of specific conditions was meant
to constitute both standard and additional conditions, or whether the court specified only
“additional conditions” and meant “standard conditions” to refer to some other set of
conditions that could possibly include the four conditions contained in the minute order.
Neither the minute order nor the probation officer‟s report distinguishes between
“standard” and “additional” conditions. D.R. was not provided a preprinted form listing
“standard conditions” of probation nor was such a form attached to the minute order.4
Other than their presence in the minute order, there is no indication that the challenged
conditions were part of a group of “standard conditions” that the court referred to at the
hearing and intended to “spell[] out in detail” later. (Cf. Thrash, supra, 80 Cal.App.3d at


4
  The record contains a preprinted form from the Alameda County Probation Department
that appears to list probation conditions. The form does not have a title and is grouped in
the clerk‟s transcript with documents ordering D.R.‟s mother to pay support to the
county. The challenged probation condition instructing D.R. not to frequent any campus
other than the school where he was enrolled was listed under the subheading
“ADDITIONAL CONDITIONS,” and the other three challenged conditions were listed
under the subheading “STANDARD HOME.” Aside from the minute order itself, this
form is the only place in the record where the challenged probation conditions appear. It
is not clear when the form was prepared, by whom, or for what purpose. There is no
proof of service or any other evidence that D.R. received a copy.

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p. 901.) In fact, the juvenile court specifically stated that it was “prepared to go along
with the recommendations of the probation department,” and the challenged conditions
were absent from the probation officer‟s report.
       Still, the juvenile court retained authority to modify the probation conditions, the
four conditions were included in the minute order, and D.R. received notice of them.
Under these circumstances, we cannot conclusively say that the challenged conditions
were imposed as an intentional exercise of the court‟s authority or simply, and more
likely, as the result of clerical error. Thus, we remand the issue to the juvenile court to
clarify whether it intended to impose the conditions.
       B.     Two of the Challenged Conditions are Unconstitutionally Vague as
              Currently Expressed in the Minute Order.
       We turn next to D.R.‟s contention that two of the challenged probation conditions
are impermissibly vague in order to provide guidance if, on remand, the juvenile court
concludes that the inclusion of the four conditions in the minute order was not the result
of clerical error. We agree with D.R. that two of the conditions—that D.R. “be of good
conduct” and “perform well” at school or work—are unconstitutionally vague as they are
currently expressed in the minute order.
       Section 730, subdivision (b) authorizes the juvenile court to impose any
reasonable probation conditions that enhance the reformation and rehabilitation of a
minor. Although a court has “broad discretion” to fashion conditions of probation, they
may still be challenged as vague, and thus facially unconstitutional under the due process
clauses of the federal and California Constitutions. (In re Josh W. (1997) 55 Cal.App.4th
1, 5; In re Sheena K. (2007) 40 Cal.4th 875, 890; U.S. Const., 5th & 14th Amends.; Cal.
Const., art. I, § 7.) A probation condition is unconstitutionally vague if it is not
“ „ “sufficiently precise for the probationer to know what is required of him, and for the
court to determine whether the condition has been violated.” ‟ [Citation.] A restriction
failing this test does not give adequate notice—„fair warning‟—of the conduct
proscribed. [Citations.]” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) In
determining the adequacy of the notice given, “we are guided by the principles that


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„abstract legal commands must be applied in a specific context,‟ and that, although not
admitting of „mathematical certainty,‟ the language used must have „ “reasonable
specificity.” ‟ [Citation.]” (In re Sheena K. at p. 890.)
       With these principles in mind, we conclude that the two probation conditions here
are impermissibly vague. The condition that D.R. “be of good conduct” fails to provide
meaningful guidance to D.R. or the court in determining what conduct is prohibited. The
phrase lacks reasonable specificity sufficient to inform D.R. what behavior will violate
the condition, and the Attorney General has not offered any suggestions as to what the
condition actually requires. Rather, she contends that it “merely serves as a convenient
label” for the other conditions imposed, such as directives that D.R. obey all laws, obey
his mother, attend school and obey school rules, obey curfew, report to the probation
officer regularly, seek employment, and refrain from possessing weapons, explosives,
and controlled substances. Adding a separate unspecific probation condition to serve as a
general catchall for other specific conditions is duplicative and unnecessary, and it
provides no additional notice of the behavior being prohibited. The condition instructing
D.R. to “be of good conduct” is impermissibly vague and cannot be imposed.
       The probation condition requiring D.R. to “perform well” in class or work is also
unconstitutionally vague. The phrase “perform well” is simply too imprecise and
subjective to give notice of what it requires. (See In re Angel J. (1992) 9 Cal.App.4th
1096, 1101.) In Angel J., the Court of Appeal addressed a probation condition requiring
that defendant maintain “satisfactory grades.” (Id. at pp. 1101-1102.) The court held that
in order to pass constitutional muster, the term “satisfactory” required a more specific
definition. (Id. at p. 1102.) The court defined “satisfactory grades” as passing grades in
each graded subject (i.e., a D or above in an A through F grading system). (Ibid. & fn. 7.)
       The term “perform well” is similarly vague, but it is not as easily clarified to avoid
a constitutional problem. At school, this directive could encompass more than just
grades, such as attendance or participation. The Attorney General contends that the
phrase should be construed to mean “perform[ance] at school to the utmost level of
[D.R.‟s] ability, earning, if possible, passing grades in each class.” But it is not apparent


                                              7
how such a construction would apply in the context of a GED program like the one D.R.
was attending, which may not use a traditional A-through-F grading system. Moreover,
the Attorney General‟s proposed interpretation provides no guidance as to how D.R. can
“perform well” at a job, which also lacks the structure of the grading system used in In re
Angel J., supra, 9 Cal.App.4th 1096 at page 1102 and footnote 7.
       Although this court has the authority to define or modify probation conditions (In
re Sheena K., supra, 40 Cal.4th at p. 892; People v. Turner (2007) 155 Cal.App.4th 1432,
1436; In re Angel J., supra, 9 Cal.App.4th at pp. 1102-1103), we decline to exercise this
authority here given our uncertainty as to whether the juvenile court intended to impose
these conditions in the first place. Moreover, an appropriate modification of the
condition is not readily apparent because D.R. is attending a GED program in lieu of
traditional schooling. On remand, if the juvenile court determines that imposition of the
probation conditions was proper, it must modify them to apply to D.R.‟s particular
situation and to provide specific notice of the behavior being prohibited.
                                            III.
                                       DISPOSITION
       The case is remanded to the juvenile court to clarify whether the four challenged
probation conditions were intentionally included in the minute order or were the result of
clerical error. The conditions requiring D.R. to “be of good conduct” and “perform well”
are unconstitutionally vague and cannot be imposed unless they are modified in a manner
consistent with this decision.5




5
  We previously held that probation conditions requiring defendant to “be of good
citizenship and good conduct” and “perform well” at school and work are
unconstitutionally vague. (In re N.B. (May 21, 2013, A136160) [nonpub. opn.].) To
avoid additional appeals, we reiterate our suggestion that, if these conditions are indeed
considered “standard conditions” in Alameda County, the juvenile court should see that
they are deleted from the forms used by the probation department.

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                                _________________________
                                Humes, J.


We concur:


_________________________
Ruvolo, P. J.


_________________________
Rivera, J.




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