Filed 1/15/14 In re R.M. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



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

THE PEOPLE,
                                                                         E057958
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. INJ1200407)
v.
                                                                         OPINION
R.M.,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Lawrence P. Best,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified.

         Sarita Ordonez, 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, Steve Oetting and Sean M.

Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.


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       The Riverside County District Attorney filed an amended Welfare and Institutions

Code1 section 602 petition alleging that defendant and appellant R.M. (minor) falsely

represented and identified himself as another person to a police officer while being

detained and arrested. (Pen. Code, § 148.9.) A juvenile court found the allegation true

and placed minor on probation for six months, in the custody of his parents, pursuant to

section 725, subdivision (a).

       On appeal, minor contends that one of his probation conditions imposed must be

either stricken or modified. We will modify the contested probation condition, but

otherwise affirm the judgment.

                                  FACTUAL BACKGROUND

       On June 11, 2012, at approximately 12:14 a.m., Officer Christopher Piscatella

conducted a traffic stop on a white Mitsubishi van. There were seven juveniles in the

van, including minor. There were no adults. The minors were out past the city curfew,

which was 10:00 p.m. on weekdays.

       Officer Piscatella asked minor his name and date of birth. Minor said he was born

on November 30, 1998. Officer Piscatella ran a “records check,” and then took minor

into custody. Minor’s date of birth is November 30, 2000.




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


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                                             ANALYSIS

              The Juvenile Court Properly Imposed the Probation Condition at Issue

       One of minor’s probation conditions reads as follows: “Not have direct or indirect

contact with anyone known to be disapproved by parent(s)/guardian(s)/Probation

Officer/staff, except in placement.” Minor contends that this probation condition (the

probation condition) is overbroad and violates his constitutional right to freedom of

association. He also argues that it is unconstitutionally vague since it does not specify

that the knowledge requirement “must be held by [him].” (Italics added.) We conclude

that the probation condition is not unconstitutional.

       At the outset, we note that 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 re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena

K.).) “‘[T]he power of the juvenile court is even broader than that of a criminal court.’

[Citation.]” (In re Christopher M. (2005) 127 Cal.App.4th 684, 692, overruled on other

grounds in People v. Gonzales (2013) 56 Cal.4th 353, 375.) “The juvenile court’s broad

discretion to fashion appropriate conditions of probation is distinguishable from that

exercised by an adult court when sentencing an adult offender to probation. Although 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; it is an

ingredient of a final order for the minor’s reformation and rehabilitation.’ [Citation] . . .



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[¶] 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. [Citations.]” (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82

(Tyrell J.), overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.)

“The juvenile court’s exercise of discretion in establishing conditions of probation in

juvenile cases ‘will not be disturbed in the absence of manifest abuse.’ [Citation.]”

(In re Christopher M., at p. 692.)

       Minor argues that the probation condition is overbroad, since it is not limited to

any class of persons, and it violates his right to freedom of association. He specifically

asserts that the probation condition “does not pass muster” under People v. O’Neil (2008)

165 Cal.App.4th 1351 (O’Neil). We disagree.

       In O’Neil, the probation condition at issue stated: “‘You shall not associate

socially, nor be present at any time, at any place, public or private, with any person, as

designated by your probation officer.’” (O’Neil, supra, 165 Cal.App.4th at p. 1354.) The

reviewing court observed that, “[a]s written, there are no limits on those persons whom

the probation officer may prohibit defendant from associating with.” (Id. at p. 1357.) It

noted that the condition failed to “identify the class of persons with whom defendant may

not associate” or “provide any guideline as to those with whom the probation department

may forbid association.” (Id. at pp. 1357-1358.) The O'Neil court concluded that,

“[w]ithout a meaningful standard, the order is too broad . . . .” (Id. at p. 1358.)




                                              4
       O'Neil is not dispositive, as it is distinguishable from the instant case. O’Neil

concerned a probation condition giving a probation officer, not a parent or guardian,

broad discretion in determining the persons with whom the probationer could associate.

It also involved an adult offender, not a juvenile, which was a distinction specifically

noted by the O'Neil court. (O'Neil, supra, 165 Cal.App.4th at p. 1358, fn. 4.) As stated

ante, “‘[a] condition of probation which is impermissible for an adult criminal defendant

is not necessarily unreasonable for a juvenile receiving guidance and supervision from

the juvenile court.’ [Citations.]” (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242

(Frank V.).)

       Furthermore, courts have upheld probation conditions that are virtually identical to

the one at issue in the present case. In Frank V., supra, 233 Cal.App.3d 1232, the

juvenile court imposed a probation condition that prohibited the minor from associating

with anyone disapproved of by his probation officer. (Id. at p. 1237.) The minor

challenged this condition as overbroad and as an infringement on his right of association.

(Id. at p. 1241.) In explaining the condition to the minor, the juvenile court told him that,

if his mother, father, or probation officer instructed him to not “hang around” with certain

persons, then he could not associate with such persons. (Ibid.) The appellate court,

recognizing that a juvenile court acts in parens patriae, upheld the probation condition.

It stated that “[t]he juvenile court could not reasonably be expected to define with

precision all classes of persons which might influence [the minor] to commit further bad




                                              5
acts. It may instead rely on the discretion of his parents, and the probation department

acting as parent, to promote and nurture his rehabilitation.” (Id. at p. 1243.)

       Similarly, in In re Byron B. (2004) 119 Cal.App.4th 1013 [Fourth Dist., Div.

Two], this court rejected the minor’s challenge to a probation condition prohibiting

contact with any person disapproved by a parent or probation officer. We held that the

condition was not overly broad. (Id. at pp. 1015, 1017.) We concluded that “[t]he

juvenile court, acting in parens patriae, could limit appellant’s right of association in

ways that it arguably could not limit an adult’s.” (Id. at p. 1018.)

       We conclude that minor’s claim that the probation condition is unconstitutionally

broad under O’Neil, supra, 165 Cal.App.4th 1351 is meritless.

       As to minor’s claim that the probation condition is unconstitutionally vague, he

concedes that it includes a knowledge requirement. However, he points out that it does

not specify that he must be the one who holds that knowledge. The People assert that

minor’s claim is baseless since the probation condition is one of his conditions and

accordingly applies to him alone.

       In Sheena K., supra, 40 Cal.4th 875, the California Supreme Court held that a

juvenile court may not prohibit a minor’s association with persons disapproved of by a

probation officer, unless the minor has knowledge of the persons disapproved of by the

authorities. (Id. at p. 891.) The Supreme Court apparently approved of such probation

condition, as long as it contained a simple knowledge requirement. (Id. at p. 892.) The

Court specifically suggested that “form probation orders be modified so that such a



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restriction explicitly directs the probationer not to associate with anyone ‘known to be

disapproved of’ by a probation officer or other person having authority over the minor.”

(Ibid.) This wording is essentially the same as the wording contained in the probation

condition in the instant case. We note that the Supreme Court did not specify that the

persons had to be “known by the minor to be disapproved.” However, while we agree

with the People that the probation condition here applies to minor alone, we also observe

that several of his other conditions explicitly state that the knowledge must be held by

him (e.g., “Not associate with anyone known to the minor to be in possession of, sells, or

uses any controlled substances . . . .”) Thus, in the interest of consistency and clarity, we

will modify the probation condition to include that the persons minor is prohibited from

contacting must be known by him to be disapproved.

                                          DISPOSITION

       The probation condition at issue is modified to read: “Not have direct or indirect

contact with anyone minor knows to be disapproved by parent(s)/guardian(s)/Probation

Officer/staff, except in placement.” In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 HOLLENHORST
                                                                                            J.
We concur:

RAMIREZ
                        P. J.

McKINSTER
                           J.


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