In re A.B. CA2/6 ( 2013 )

Filed 12/18/13 In re A.B. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re A.B., a Person Coming Under the 2d Juv. No. B249204
Juvenile Court Law. (Super. Ct. No. PJ49657)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
A.B.,
Defendant and Appellant.
A.B. appeals a juvenile court probation condition issued after the trial court
sustained a juvenile wardship petition (Welf. & Inst. Code, § 602), finding A.B. had
committed an assault and battery (Pen. Code, § 242). We conclude, among other things,
that: 1) a condition that restricts A.B.'s access to schools he does not attend does not
violate his constitutional right to travel, but 2) an overly broad one-block zone restriction
must be modified to eliminate the risk that the minor might innocently or inadvertently
contravene the condition while engaged in lawful daily activities. We modify the
condition. In all other respects, the judgment is affirmed.
FACTS
On September 7, 2012, at approximately 4:30 p.m., Ezzit Gadalla, the
manger of an apartment building, saw five or six "kids sitting in the common area" near a
no trespassing sign. He testified that on four occasions he saw them inside his "property
in the parking lot." They were not tenants and were not authorized to be there.
Gadalla took out a camera phone to take pictures of these minors. Some of
them hid their faces, others ran away. He took a picture of A.B. who responded by
slapping the camera away and hitting Gadalla's hands. Gadalla picked up the camera.
A.B. slapped Gadalla's face. Gadalla felt pain "from the hit."
A.B testified, "I did not shove the man per se but the phone. I did push it
out of my face." He said Gadalla hit him "in the back of [his] head." A.B. "did a
backhand motion and hit [Gadalla] in his face."
The trial court sustained the petition. In her report to the court, A.B.'s
probation officer said, "Due to the fact that minor is currently before the court on a
misdemeanor charge and has not been placed on probation previously this officer is not
opposed to minor being placed on informal supervision at this time." (Capitalization
omitted.)
The trial court told A.B., "[Y]ou're on probation, but you don't have to
report to the probation officer unless they tell you to." It imposed probation condition
No. 12. It provides, "Do not be within one block of any school ground unless enrolled,
attending classes, on approved school business, or with school official, parent or
guardian." A.B.'s counsel did not object when the court imposed this condition.
DISCUSSION
The Validity of a Condition Restricting Access to Other Schools
A.B. contends condition No. 12 is not a valid probation condition and it
"improperly intrudes on [his] constitutional right to travel." (Capitalization omitted.)
The People contend A.B. forfeited this claim by not raising it in the trial
court. A.B. responds that his failure to object in juvenile court does not preclude
appellate review. He argues that because his claim primarily involves a facial challenge
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to the constitutionality of the restriction, it may be raised for the first time on appeal.
There is merit to this contention. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) The
People argue he should have objected in the trial court because his claim involves some
consideration of the facts. But even if they are correct, that is not fatal to appellate
review. "[A]n appellate court may review a forfeited claim--and '[w]hether or not it
should do so is entrusted to its discretion.'" (Id. at p. 887, fn. 7.)
A.B. has raised important constitutional issues. Our resolution of them will
provide guidance for the trial court. Probation condition No. 12 is on a standardized
preprinted juvenile court form that could be used in thousands of cases. The
constitutional issues regarding this condition are a matter of continuing public
importance. We proceed to the merits.
"'A condition of probation will not be held invalid 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 . . . ."'" (In re R.V. (2009) 171 Cal.App.4th 239, 246.) "All
three factors must be present to invalidate a condition of probation." (Ibid.)
"'An appellate court will not disturb the juvenile court's broad discretion
over probation conditions absent an abuse of discretion.'" (In re R.V., supra, 171
Cal.App.4th at p. 246.) Broad discretion is vested in the juvenile court so that it "may
serve its rehabilitative function and further the legislative policies of the juvenile court
system.'" (Ibid.) Consequently, "'"[a] condition of probation which is [legally]
impermissible for an adult criminal defendant is not necessarily unreasonable for a
juvenile receiving guidance and supervision from the juvenile court."'" (Ibid.)
A.B. contends a restriction on travel to other schools is invalid because he
did not commit the offense at school. He claims without a school connection the
probation condition must be stricken. The People concede the incident did not occur on
school grounds. But they note there is a connection between this incident and school.
A.B. and his school aged friends were loitering on private property after school. His
counsel conceded this took place a "couple [of] blocks from school." A.B. has not shown
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why the trial court could not reasonably infer the underlying cause of this incident
involved children loitering on their way home from school.
But "'even if a condition of probation has no relationship to the crime of
which a defendant was convicted and involves conduct that is not itself criminal, the
condition is valid as long as the condition is reasonably related to preventing future
criminality.'" (In re T.C. (2009) 173 Cal.App.4th 837, 846.) "'In deciding what
conditions to place on a juvenile probationer, "'"the juvenile court must consider not only
the circumstances of the crime, but also the minor's entire social history. . . ."'"'" (In re
Francisco S. (2000) 85 Cal.App.4th 946, 953.) Consequently, school travel restrictions
are proper probation conditions for juveniles even for non-school related offenses. (In re
D.G. (2010) 187 Cal.App.4th 47, 53-54, 56-57.) They assist in the minor's rehabilitation
by avoiding places likely to lead them into trouble. The authority to restrict the juvenile's
contact with others is broader than probation conditions for adults because it involves the
juvenile court's comprehensive duty to protect the minor. (In re Spencer S.(2009) 176
Cal.App.4th 1315, 1330.)
The Constitutional Right to Travel
A.B. contends a condition restricting his right to visit other schools violates
his constitutional right to travel and is consequently void. We disagree.
There is a constitutional right to travel. (Tobe v. City of Santa Ana (1995) 9
Cal.4th 1069, 1096-1097; In re White (1979) 97 Cal.App.3d 141, 148.) "[T]he right to
intrastate travel (which includes intramunicipal travel) is a basic human right protected by
the United States and California Constitutions as a whole." (White, at p. 148.) "Many
other fundamental rights such as free speech, free assembly, and free association are
often tied in with the right to travel." (Id. at p. 149.) "Freedom of movement is basic in
our scheme of values." (Ibid.)
But "the right of free movement is not absolute and may be reasonably
restricted in the public interest." (In re White, supra, 97 Cal.App.3d at p. 149.) That is
particularly the case with probation conditions for minors. "'[J]uveniles are deemed to be
more in need of guidance and supervision than adults, and their constitutional rights are
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more circumscribed.'" (In re R.V., supra, 171 Cal.App.4th at p. 248.) A conflict between
the constitutional right and a probation condition does not automatically invalidate the
condition in the juvenile court context. "'[T]he juvenile court may impose probation
conditions that infringe on constitutional rights if the conditions are tailored to meet the
needs of the minor.'" (Ibid.)
A.B. assumes he has an unfettered right to travel to other schools. But state
law substantially restricts the ability of all outsiders to visit school campuses. Penal Code
section 627.2 provides, in relevant part, "No outsider shall enter or remain on school
grounds during school hours without having registered with the principal or designee,
except to proceed expeditiously to the office of the principal or designee for the purpose
of registering." California has a strong policy of "restricted access to California school
grounds." (In re Joseph F. (2000) 85 Cal.App.4th 975, 985.) Consequently, the right of
travel must be balanced against the state interest to maintain a safe environment for
school children and to protect school campuses from outsiders and disruption. (New
Jersey v. T.L.O. (1985) 469 U.S. 325, 340-342; Reeves v. Rocklin Unified School Dist.
(2003) 109 Cal.App.4th 652, 654, 662-663; Joseph F., at pp. 984-985.)
There is a potential for serious problems where juvenile court wards loiter
near schools they do not attend without adult supervision. Consequently, juvenile courts
properly impose probation conditions restricting the minor's right to travel to schools he
or she does not attend. (In re D.G., supra, 187 Cal.App.4th at p. 57.) In such cases the
constitutional right must yield to conditions properly "'tailored to meet the needs of the
minor.'" (In re R.V., supra, 171 Cal.App.4th at p. 248.) Here there is a substantial
relationship between A.B's loitering with school age friends, the after school incident,
and the need for a restriction to prevent future incidents. The trial court did not err by
deciding to impose a restriction that limits his access to other schools. (D.G., at p. 57.)
Modification of Condition No. 12
A.B. contends the restriction that he not be "within one block of any school
ground" subjects him to the risk of an unintentional probation violation. He argues that
"[he] can inadvertently violate the condition without knowing he is within one block of a
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school." He claims "the condition could be accidentally violated should A.B.'s ordinary
travels take him to a location within a block of any school campus." These claims have
merit.
Probation conditions that are too broad must be narrowed so that necessary
travel is not unduly restricted. (In re White, supra, 97 Cal.App.3d at p. 147.) Overly
broad or vague conditions do not give probationers specific notice of the type of conduct
that is prohibited. (People v. Barajas (2011) 198 Cal.App.4th 748, 753, 761.) The risk
of an unintentional probation violation is present where: 1) "perfectly legal activities"
fall within a vague or overly broad condition (White, at p. 147; see also Barajas, at
pp. 753, 761), or 2) where a condition imposes a geographic area restricted zone that
unreasonably bars access to public places. (People v. Perez (2009) 176 Cal.App.4th 380,
385.)
Other than the term "one block," condition No. 12 does not contain a
limitation on the distance barrier between A.B. and any school. Blocks may vary in
dimensions from hundreds to thousands of feet in length. In unincorporated or rural areas
blocks are often larger. Many city streets and freeways cross within a block of many
public and private schools. Some school grounds are connected to parks and other areas
which are open to the general public.
Given the language the trial court used, the potential for an inadvertent
probation violation is present. In In re E.O. (2010) 188 Cal.App.4th 1149, 1155, the
court discussed a condition prohibiting the minor from "being near a building in which
gang-related proceedings are known to be underway." In discussing the invalidity and
vagueness of the restriction, it noted that "appellant could violate the condition if a car or
bus in which he is a passenger passes by such a building." (Ibid.) Here, as in In re E.O.,
A.B. could violate the condition by being in a car or bus that passes within a block of any
school ground. A.B. asks, "If he is riding on a bus and sees a 'school zone' sign, must he
immediately alert the bus driver and exit the bus?"
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The People suggest that the minor need only arm himself with maps and
plan a daily route to avoid inadvertently crossing the prohibited one block no entry zone.
This proposal would challenge the cartography skills of the Thomas Brothers.
In In re D.G., supra, 187 Cal.App.4th 47, the minor committed a burglary
at a private residence and the juvenile court imposed probation conditions. The Court of
Appeal invalidated a condition that restricted the minor from coming within 150 feet of
any school campus other than the school he was attending. In discussing the
unreasonable nature of the school zone restriction, the court said, "It is not illegal for
persons to pass within 150 feet of school grounds . . . ." (Id. at p. 53.) "[T]here are many
legitimate reasons, other than enrollment, for appellant to come within 150 feet of school
grounds. As examples, he might pass by a school on the street while traveling
somewhere else, have friends or family living within the 150-foot zone, or want to shop
within the zone." (Id. at p. 54.)
The court nevertheless ruled that a reasonable school restriction was
appropriate as a probation condition even though the incident did not take place on school
grounds. It concluded that the condition was consistent with both the needs of the
juvenile and California public policy. It said, "A probation condition generally consistent
with Penal Code section 627.2 would ensure that he does not frequent school grounds
without the knowledge of the relevant authorities and, presumably, without having a good
reason for his presence." (In re D.G., supra, 187 Cal.App.4th at p. 56.) It concluded
"such a condition would be justifiable under [People v. Lent (1975) 15 Cal.3d 481] as
proscribing otherwise criminal conduct . . . ." (D.G., at p. 56.) The court consequently
modified the probation condition to read, "'Do not enter on the campus or grounds of any
school unless enrolled, accompanied by a parent or guardian or responsible adult, or
authorized by the permission of school authorities.'" (Italics added.) (Id. at p. 57.) This
modification eliminated the problems the court had identified with the 150-foot
restriction.
The problems identified in In re D.G. are also present here, but more
aggravated, because "a one block" zone may be of varying dimensions and may often
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exceed 150 feet. Applying condition No. 12's one-block zone would prevent A.B. from
visiting popular public venues such as Exposition Park, the Natural History Museum, the
California Science Center, the IMAX theatre, the Endeavor Space Shuttle exhibit, the Los
Angeles Memorial Coliseum, the African-American Museum, the Los Angeles Expo
Center, the Olympic Swim Stadium, Pauley Pavilion, the Galen Center. "[B]road and
unnecessary exclusions from either government centers that invite public participation or
public places that contain parks and other public forums touch upon other constitutionally
protected interests." (People v. Perez, supra, 176 Cal.App.4th at p. 385.) They
"contravene the First Amendment." (Ibid.) Condition No. 12 must be consistent with the
condition in In re D.G.. We need not decide whether one-block zone restrictions are
appropriate for dangerous felons because A.B. does not fall within that category.
Disposition
We modify probation condition No. 12 to read, "Do not enter on the
campus or grounds of any school unless enrolled, accompanied by a parent or guardian or
responsible adult, or authorized by the permission of school authorities." In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Fred J. Fujioka, Judge
Superior Court County of Los Angeles
______________________________
Gerald Peters, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Shawn McGahey Webb, Deputy Attorney
General, for Plaintiff and Respondent.
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