NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

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1 Filed 6/16/11 In re Jazmine J. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO In re Jazmine J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Jazmine J., Defendant and Appellant. A (Contra Costa County Super. Ct. No. J ) The court adjudged defendant a ward of the court under Welfare and Institutions Code section 602, 1 and placed her on probation in her mother s custody. Subsequently, defendant admitted several probation violations and, at a hearing, the court sustained defendant s admissions to the probation violations. At the disposition hearing, the court continued defendant as a ward of the court and, among other things, removed her from the custody of her mother and placed her in the probation officer s custody. On appeal, defendant challenges the probation condition that she is not to have any association with anyone known to be disapproved by [the probation officer] or parent. She also contends that the record does not establish that she knowingly, intelligently, and voluntarily waived her constitutional rights prior to admitting her probation violations. We modify the disposition order regarding defendant s conditions of probation, but otherwise affirm. 1 All further unspecified code sections refer to the Welfare and Institutions Code. 1

2 BACKGROUND On April 1, 2009, an original petition pursuant to section 602 was filed that alleged defendant had sold cocaine base (Health & Saf. Code, 11352, subd. (a)) and possessed cocaine base for sale (Health & Saf. Code, , subd. (a)). The prosecution amended the petition to add accessory (Pen. Code, 32). Defendant admitted this latter amended count, and the other two counts were dismissed. At the disposition hearing on January 5, 2010, the court adjudged defendant a ward of the court and placed her on probation in her mother s custody. On February 25, 2010, a notice of a probation violation against defendant was filed, and it alleged that defendant tested positive for THC on February 11, The court held a hearing on this alleged violation on March 19, At this hearing, the court advised defendant of the following: You have a right to a hearing in court on the issues that are raised in the notice of probation violation. If you were to have a hearing, you would be able to confront and cross-examine any witnesses who appear to testify against you. [ ] You also have the right to remain silent. Anything that you say can be used against you, and you have the right to testify on your own behalf if you choose to do so. You have the right to call your own witnesses, and the court will assist you with this. And you have the right to the assistance of an attorney at all stages of the proceedings. [ ] Do you understand the rights I have just explained to you? Defendant responded, Yes, ma am. Counsel for defendant confirmed that she spoke to defendant about the violation alleged and that she consented to her admission of the violation. Defendant then admitted testing positive for THC. The court adopted the recommendation of the probation officer and ordered defendant to attend and participate in a substance abuse program. The court continued defendant as a ward on probation. On May 20, 2010, the probation department filed a new notice of probation violation alleging that defendant was arrested for battery (Pen. Code, 243), that she tested positive for THC, that she failed to report to the probation department that she had been arrested for the possession of rock cocaine for sale on March 10, 2009, and that she failed to enroll in substance abuse counseling. 2

3 More than one month later, on July 2, 2010, the probation department filed an additional notice of probation violation and alleged that defendant failed to provide the probation officer with weekly school reports, that she missed an appointment with her probation officer, that she failed to provide verification of community service, that she failed to pay a $100 restitution fine, that she failed to download home supervision materials, and that she failed to attend school as directed. The probation office filed its report and recommendation on July 13, The report recommended that defendant be continued as a ward of the court and that she be removed from her parent. The probation officer had a typed recommendation that stated, Minor not to associate with other minors on probation. At some point, a line was drawn through other minors on probation and replaced with the handwritten words, persons disapproved of by mother and[/]or probation when made known to mother [sic]. On July 28, 2010, the court held a hearing on defendant s alleged probation violations. The court provided defendant with the following advisement: [Y]ou have the right to a full hearing before me to determine if you violated probation on each of these petitions, you have the right to confront and cross-examine witnesses against you, you have the right to be represented by a lawyer, and you have the right to call your own witnesses. The lawyer will be appointed to assist you for free if you can t afford the lawyer. The court asked defendant whether she understood her rights on each of these probation violation notices[.] Defendant responded, Yes. Defendant answered, Yes, when asked whether she gave up her right to a hearing on each of these issues. Defendant s counsel affirmed that the waiver was given with her consent. Defendant admitted the probation violations with the exception of the allegations that she was arrested and that she failed to attend school. At the disposition hearing on August 13, 2010, the court admonished defendant not to associate with other minors on probation. Defense counsel commented, I heard you say that one of the terms and conditions of probation was to not associate with other probationers[,] and asked whether she heard that correctly. The court replied, Other probationers, if known to you, after she is released, I assume. Defense counsel stated, I m assuming that while she s in the program, that s fine, and associations with girls that become 3

4 friends of hers in the program, that should be I mean, it just seems like a very vague and not doesn t really [.] The court responded: That s the first I have seen of that particular clause. I don t know if it s standard, but I think the better characterization would be not associate with persons known by disapproved of by your parents and/or probation. Defense counsel answered, I don t have a problem with that. The prosecutor agreed that he did not have a problem with that condition. The court stated: The minor knows there is some bad people out there, and she knows that mother knows mother can say don t associate with those people. Same thing is true of probation, so I am going to modify that language. [ ] Thank you for bringing it to my attention. I think that s a bit it is vague because sometimes that might be the best source of positive reinforcement, and in the alternative, it might be negative. [ ] So as to the minor not to associate with persons that are disapproved of by mother and/or probation, when those persons are known to the minor. The court continued defendant as a ward of the court, removed her from the custody of her mother and placed her in the probation officer s custody, and committed her to a county institution for a period not to exceed two years, 11 months, until age 21. The court order specified that one of the conditions of probation was the following: No association with: anyone known to be disapproved by [probation officer] or parent. Defendant filed a timely notice of appeal. DISCUSSION I. The Probation Condition Regarding Associations A. The Condition Orally Stated at the Hearing At the disposition hearing, the court imposed a probation condition that defendant not associate with anyone known to be disapproved by the probation officer or her mother. Defendant contends that this condition is unconstitutionally overbroad and vague. (See People v. Dominguez (1967) 256 Cal.App.2d 623, 627; People v. Lent (1975) 15 Cal.3d 481, 486, superseded by statute on another issue.) Defendant did not object to the probation condition at trial. She did not, however, forfeit this issue, as appeals based on the constitutionality of probation conditions can be 4

5 raised for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, (Sheena K.).) 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), thereby occupying a unique role... in caring for the minor s well-being. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500.) Thus, a juvenile 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).) A probation condition is reasonable 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; fn. omitted.] (People v. Lent, supra, 15 Cal.3d at p. 486.) 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 Josh W. (1997) 55 Cal.App.4th 1, 5.) [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. (Sheena K., supra, 40 Cal.4th at p. 889.) Minors are deemed to be more in need of guidance and supervision than adults and a minor s constitutional rights are more circumscribed. (In re Antonio R., supra, 78 Cal.App.4th at p. 941.) Nevertheless, the probation conditions imposed on a minor may be void for vagueness or overbreadth. (See Sheena K., supra, at pp ) The freedom of association under the federal Constitution receives protection as a fundamental element of personal liberty and as an aspect of the First Amendment. (Roberts v. United States Jaycees (1984) 468 U.S. 609, ) Thus, any condition that limits these rights must be (1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends. (People v. Lopez (1998) 5

6 66 Cal.App.4th 615, 628.) A condition infringing on constitutional rights must be tailored to fit the individual probationer. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) The vagueness doctrine is premised on the due process concept of adequate notice. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115; accord Sheena K., supra, 40 Cal.4th at p. 890.) A violation of due process occurs when a statute either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application[.] (Acuna, supra, at p ) Thus, to withstand a vagueness challenge, a probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated [.] (Sheena K., supra, at p. 890.) Further, [a] probation condition that imposes limitations on a person s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. (Ibid.) A probation condition may be overbroad if in its reach it prohibits constitutionally protected conduct. (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) A probation condition that is not vague may nevertheless be overbroad if it prohibits constitutionally protected conduct. (See People v. Lopez, supra, 66 Cal.App.4th at p. 630.) The essential question in an over breadth 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 Sheena K., the minor was placed on probation subject to the condition that she not associate with anyone disapproved of by probation. (Sheena K., supra, 40 Cal.4th at p. 890.) On appeal, the minor asserted that the condition was unconstitutionally vague and overbroad. (Ibid.) The Supreme Court held that absent a knowledge requirement, the condition was unconstitutionally vague. The court explained, [B]ecause of the breadth of the probation officer s power to virtually preclude the minor s association with anyone, defendant must be advised in advance whom she must avoid. (Ibid.) The Supreme Court 6

7 revised the condition to specify that the probationer need avoid only those individuals known to be disapproved of by [the] probation officer. (Id. at p. 892.) Appellate courts have consistently upheld probation conditions when there is a knowledge element. (See, e.g., In re Victor L. (2010) 182 Cal.App.4th 902, (Victor L.) [probation condition modified to include a personal knowledge requirement]; In re Justin S. (2001) 93 Cal.App.4th 811, 816 [court modified a condition prohibiting a minor s association with any gang members to prohibit only association with persons known to the probationer to be associated with a gang ].) Defendant claims that the condition in the present case suffers from the same problem as in Victor L., but the condition in Victor L. restricting his right to associate with individuals disapproved by his probation officer or his parents did not have a knowledge requirement. (Victor L, supra, at pp ) 2 The court in Victor L. modified the condition that restricted the defendant s right to associate with individuals disapproved of by his probation officer or his parents to include a personal knowledge requirement. (Id. at pp ) Here, defendant s probation condition prohibits her from associating with persons that are disapproved of by mother and/or probation, when those persons are known to the minor. A reasonable reading of this condition indicates that defendant is required to refrain from associating with people identified to her by her mother and probation officer, which is an observable or discernable condition. The only reasonable reading of the challenged condition would require defendant to refrain from the prohibited associations only if she herself knows about them based on her own personal knowledge or knowledge communicated to her by her probation officer or parent. Thus, this condition is not vague or overbroad in the sense that the condition makes it clear that defendant must have the 2 In his opening brief in this court, rather than focus on the condition restricting the defendant s right to associate with gang members, defendant discusses the probation condition in Victor L. related to restricting the defendant s presence where dangerous or deadly weapons or firearms or ammunition exist. (Victor L., supra, 182 Cal.App.4th at pp ) She asserts that this latter condition is illustrative of a valid probation condition. We agree that this probation condition is valid and may be more narrowly drawn than the condition in the present case, but this has no bearing on whether the probation condition in the present case is constitutional. 7

8 knowledge of the prohibited associate s status and gives defendant notice of whom she must avoid. (See In re H.C. (2009) 175 Cal.App.4th 1067, [held that a condition of probation prohibiting association with an known probationer, parolee, or gang member must be modified to include personal knowledge requirement, since the word known did not specify who must have knowledge of the prohibited associate s status].) Defendant agrees that the courts in Victor L. and Sheena K. held that the probation condition without the knowledge component was vague, but she contends that these courts did not address whether a condition with the knowledge requirement was unconstitutionally overbroad. Defendant s argument is somewhat absurd as it would require a conclusion that both courts modified the probation condition without considering whether the modified condition was constitutional. Both the appellate court in Victor L. and our Supreme Court in Sheena K. concluded that it was unnecessary to determine whether a probation condition without the knowledge element was unconstitutionally overbroad, because such a condition was invalid based on its being unconstitutionally vague. (Sheena K., supra, 40 Cal.4th at p. 891, fn. 8, Victor L., supra, 182 Cal.App.4th at p. 912.) Both courts modified the condition to include a knowledge element and therefore they implicitly concluded that the condition, as modified, was constitutional. In arguing that the provision is unconstitutionally overbroad, defendant relies on In re Kacy S. (1998) 68 Cal.App.4th 704. In In re Kacy S., the minor challenged a condition that prohibited his association with any persons not approved by his probation officer[.] (In re Kacy S., supra, at pp ) The court concluded the condition was overbroad by restricting contact with persons such as grocery clerks, mailcarriers and health care providers. (Id. at pp ) The condition in the present case, however, is not the same as the one in Kacy S. The condition does not require prior approval of the probation officer or parent. Instead, it requires the probation officer or mother to disapprove of a person and communicate that disapproval to defendant. Thus, in contrast to the condition in In re Kacy S., defendant is not prohibited from having any contact with a teacher, grocery clerk, or mail carrier. Requiring advance approval is impractical. A parent or probation officer can hardly be expected to specify all of the innocuous people with whom the minor may come 8

9 into contact. Requiring advance disapproval makes the probation condition workable and saves it from overbreadth. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1017; see also In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [upheld probation condition because the court advised the defendant that he could not associate with people whom his parents and the probation officer tell you... that you can t hang out with ].) Defendant argues that the words person not approved are essentially equivalent to any person disapproved. She claims that she still may be arbitrarily prevented from associating with innocuous persons that are difficult to avoid encountering in daily society that have no relation to her culpable conduct or possible future criminality e.g., grocery clerks, mail carriers, and health care providers. We disagree with defendant s argument. Clearly innocuous people are not included because the people have to be identified by the probation officer and mother as people defendant should avoid and this information has to be communicated to defendant. Defendant also cites cases involving adults on probation (e.g., People v. O Neil (2008) 165 Cal.App.4th 1351), and maintains that that the reasoning of the cases involving adults applies to juvenile cases. Defendant argues that giving the state greater control over the conduct of juveniles simply because juveniles are deemed to be more in need of guidance and supervision than adults (In re Antonio R., supra, 78 Cal.App.4th at p. 941) is an insufficient reason to permit a parent or probation officer to restrict their constitutional right to the freedom of association. Defendant ignores that the court in O Neil expressly stated that its decision dealt solely with the conditions of adult probation. Conditions of juvenile probation may confer broader authority on the juvenile probation officer than is true in the case of adults [citations]. (O Neil, supra, at p. 1358, fn. 4.) Contrary to defendant s assertion, permitting a parent or probation officer to restrict a minor s association is not simply because juveniles need more supervision. As the court in In re Frank V., supra, 233 Cal.App.3d 1232 observed, a probation condition that prohibits a juvenile from associating with anyone disapproved of by the defendant s probation officer or parents is consistent with the rehabilitative purpose of probation and constitutional parental authority and does not impermissibly burden the defendant s right of association. (Id. at 9

10 p ) The juvenile court cannot reasonably be expected to define with precision all classes of persons which might influence [the juvenile] to commit further bad acts. It may instead rely on the discretion of [the juvenile s] parents, and the probation department acting as a parent, to promote and nurture [the minor s] rehabilitation. (Ibid.) We are confident that defendant s probation officer and parent will not act arbitrarily and will not seek to limit defendant s right to association unless it reasonably appears a particular association would be detrimental to her reformation and rehabilitation. Accordingly, we reject defendant s argument that her probation condition as stated by the court at the disposition hearing is overly broad or vague under the United States and California constitutions. B. The Condition Specified in the Disposition Order Defendant maintains that the language of the disposition order differs from the court s oral order at the disposition hearing and the language of the order is vague. The court order specified that one of the conditions of probation was the following: No association with: anyone known to be disapproved by [the probation officer] or parent. We agree that the language in this order is vague and the order should be modified to read: No association with: anyone the defendant knows to be disapproved by probation or parent. II. Admission of Probation Violations On July 28, 2010, prior to defendant s admitting that she violated probation, the court advised her of the following: [Y]ou have the right to a full hearing before me to determine if you violated probation on each of these petitions, you have the right to confront and crossexamine witnesses against you, you have the right to be represented by a lawyer, and you have the right to call your own witnesses. The lawyer will be appointed to assist you for free if you can t afford the lawyer. The court asked defendant whether she understood her rights on each of these probation violation notices[.] Defendant responded, Yes. Defendant answered, Yes, when asked whether she gave up her right to a hearing on each of these issues. Defendant s counsel affirmed that the waiver was given with her consent. Defendant then admitted her probation violation. 10

11 On appeal, defendant contends that her admission was invalid because the court failed to advise her of her right to remain silent before accepting her admission of probation violations. She argues that under Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl), a juvenile who has been adjudicated an indefinite ward under section 602 must be made aware of his or her right against self-incrimination before admitting allegations of probation violations under section 777. (See also In re Gault (1967) 387 U.S. 1, ) As defendant acknowledges, courts have consistently held that, in light of the significant differences, for due process purposes, between proceedings upon entry of a guilty plea and with respect to violation or revocation of probation, waivers are not required when one admits a probation violation. (See People v. Clark (1996) 51 Cal.App.4th 575, , abrogated on other grounds in People v. Mendez (1999) 19 Cal.4th 1084, 1098.) Defendant asserts that no published case has extended this rule to juvenile probation proceedings. She maintains that a juvenile ward on probation is not in a position analogous to that of an adult probationer because juveniles cannot refuse probation. (See Sheena K., supra, 40 Cal.4th at p. 883, fn. 4.) Furthermore, the terms of probation for a juvenile may result in greater restrictions of liberty than adults experience on probation. (See In Frank V., supra, 233 Cal.App.4th at pp ) We need not decide whether the lower court had to set forth all of the Boykin-Tahl waivers, because we conclude that defendant suffered no prejudice from the court s failure to admonish her about her right to remain silent. If a trial court fails to advise the defendant and obtain the defendant s voluntary and intelligent waivers of the defendant s rights, including the right to remain silent, its failure is harmless if the totality of the circumstances whose the admission and waiver were voluntary and intelligent. (People v. Mosby (2004) 33 Cal.4th 353, ; People v. Howard (1992) 1 Cal.4th 1132, 1175.) Prior experience with the criminal justice system may support a conclusion that defendant knew his or her rights. (Mosby, at p. 365.) In the present case, on July 28, 2010, the court advised defendant of a right to a hearing, her right to confront and cross-examine witnesses, her right to a lawyer, and her 11

12 right to her own witnesses prior to defendant s admitting that she violated her probation. The advisement was incomplete because the court did not advise her of her right to remain silent. However, less than four months earlier, on March 19, 2010, when defendant was at a hearing regarding violating her probation, defendant received her Boykin-Tahl advisements, including the advisements that she had the right to remain silent. At that hearing, she expressly affirmed that she understood her rights, and her attorney confirmed that she agreed with defendant s admitting the probation violations. The totality of the circumstances shows that defendant did know on July 28, 2010, when she admitted her probation violations that she had the right to remain silent; thus, any Boykin-Tahl error was harmless. DISPOSITION The juvenile court s order is hereby modified so that the probation condition specifying no association with anyone known to be disapproved by probation or parent is modified to no association with anyone the defendant knows to be disapproved by probation or parent. As so modified, the order is affirmed. Lambden, J. We concur: Kline, P.J. Richman, J. 12