THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

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1 Filed 2/8/11 In re R.F. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO In re R. F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, v. R. F., Plaintiff and Respondent, Defendant and Appellant. A (Alameda County Super. Ct. No. SJ ) I. INTRODUCTION Appellant, a 15-year-old high school student, was adjudged a ward of the court and placed on probation, with conditions, after admittedly assaulting one of her classmates. She appeals, claiming one of the conditions of her probation, that she not leave Alameda County without the prior permission of her probation officer, is unconstitutionally broad and otherwise inappropriate. We agree in part with appellant s overbreadth contention, and affirm the judgment albeit with this probation condition modified as provided hereafter. II. FACTUAL AND PROCEDURAL BACKGROUND During a lunch period at school on June 11, 2009, appellant got into an argument with another female student and assaulted her by hitting her on her head with a combination lock appellant was holding. 1

2 At a jurisdictional hearing on October 9, 2009, appellant admitted that she had committed an assault with a deadly weapon (see Pen. Code, 245, subd. (a)(1)) as alleged in the second count of a first amended delinquency petition filed July 29, At a dispositional hearing held on January 29, 2010, the juvenile court adjudged appellant a ward of the court and placed her on probation at home with her mother, subject to various conditions, among them that she not stay away from [her] residence overnight nor leave Alameda County without the prior permission of the Probation Officer. On March 4, 2010, appellant filed a timely notice of appeal. Although that notice specifically stated that appellant was appealing from the whole of said dispositional order, the only issue raised in her briefs to us is the propriety of the probation term quoted above, i.e., precluding her from leaving Alameda County without the prior approval of her probation officer. III. DISCUSSION Appellant contends that the probation condition she is contesting is unreasonable because it bears no relation to the allegation which was sustained against her (after her admission to it) and overbroad because it restricts appellant s constitutional right to travel. She further contends that her objection to the condition on appeal is cognizable because appellant s trial counsel did not have a meaningful opportunity to object to the condition, and if any such objection was in fact forfeited, it was due to ineffective assistance of counsel. As appellant acknowledges, our standard of review of such conditions is abuse of discretion. This is so because, among other things, of the express terms of Welfare and Institutions Code section 730, subdivision (b), which provides in part: 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. It is also so because of innumerable appellate cases so stating and, indeed, making crystal clear that juvenile courts have even greater discretion in imposing probation conditions than regular criminal courts do. 2

3 As former Chief Justice George stated in a recent unanimous decision of our Supreme Court: 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.... [ ]... [N]o choice is given to the youthful offender [to accept probation]. By contrast, an adult offender has the right to refuse probation, for its conditions may appear to defendant more onerous than the sentence which might be imposed. [Citations.] [Citations.] (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Further, juvenile conditions may be broader than those pertaining to adult offenders. (In re Daniel R. (2006) 144 Cal.App.4th 1, 6-7, quoting In re Christopher M. (2005) 127 Cal.App.4th 684, ) This is because the state, when it asserts jurisdiction over a minor, stands in the shoes of the parents and a parent may curtail a child s exercise of the constitutional rights... [because a] parent s own constitutionally protected liberty includes the right to bring up children.... (In re Daniel R. supra, 144 Cal.App.4th at p. 7, quoting In re Christopher M., supra, 127 Cal.App.4th at pp ) Numerous recent appellate decisions have reiterated these principles, including this court s recent decision in In re Luis F. (2009) 177 Cal.App.4th 176, , and a decision of Division Three of this District in In re R.V. (2009) 171 Cal.App.4th 239, In In re Antonio R. (2000) 78 Cal.App.4th 937 (Antonio), a unanimous panel of the Fourth District sustained the imposition of a travel condition precluding an Orange County resident-juvenile from going into Los Angeles County unless accompanied by a 3

4 parent or with prior permission from the probation officer. (Id. at p. 939.) In so doing, it cited Welfare and Institutions Code section 730, quoted in part above, and the broad discretion accorded a juvenile court by the many appellate cases discussing that issue and the broader discretion accorded a juvenile court in this regard. (Antonio at pp ; cf. also In re Daniel R., supra, 144 Cal.App.4th at pp. 6-9.) Appellant argues that, in the specific circumstances of her case, the condition is overbroad and thus inappropriate. She specifically points out that she had never previously been involved in a juvenile charge or appeared in juvenile court, had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), had lived with only one parent (her mother) as her parents were never married, and only performs at a second grade level academically. Further, both appellant and her mother appeared before and addressed the juvenile court. Under the circumstances, and also under the law cited above, imposing such a condition on appellant was not an abuse of discretion. However, in our view the condition as worded appears to be (1) inconsistent with both the probation department s recommendations and the earlier verbal statement of the court, and (2) also a bit too strict given the geography of the Bay Area. In its report filed on January 27, 2010, the probation department recommended that the condition be that appellant not stay away from [her] residence overnight nor leave Alameda County without prior permission of the Probation Officer or parent(s). (Emphasis supplied.) At the dispositional hearing two days later, the court said nothing regarding appellant not leaving Alameda County, but did state that appellant had a curfew of 6:00 seven days a week unless given advance permission by your parent or probation officer to stay out later. It then changed things slightly, by telling appellant: You re not to leave your residence overnight unless you have permission from both your parent and probation officer. (Emphasis supplied.) Because of these inconsistencies, and also because this is the first juvenile court proceeding in which appellant has been involved, we think the condition should have 4

5 been worded as stated in the probation department s report and recommendations, i.e., that appellant could leave Alameda County with the permission of either her mother or the probation officer. IV. DISPOSITION The probation condition at issue is modified to require appellant to obtain the permission of either her parent or the probation department before leaving Alameda County. As so modified, the judgment is affirmed. Haerle, Acting P.J. We concur: Lambden, J. Richman, J. 5