In re T.B. CA1/1 ( 2022 )

Filed 1/10/22 In re T.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re T.B., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE, A160837
Plaintiff and Respondent,
(Contra Costa County
v. Super. Ct. No.
T.B., J2000237)
Defendant and Appellant.
The juvenile court sustained allegations of a Welfare and Institutions
Code section 6021 petition alleging T.B. committed robbery (Pen. Code, § 211)
and grand theft (id., § 487, subd. (a)). The court placed minor in the home of
her mother under various terms and conditions, including an alcohol testing
condition. On appeal, T.B. (1) contends the finding on the grand theft count
must be reversed as a lesser included offense of robbery; and (2) challenges
the alcohol testing condition as unconstitutionally vague and otherwise
unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent).2
All further statutory references are to the Welfare and Institutions
1
Code unless otherwise indicated.
Superseded on another ground as stated in People v. Moran (2016)
2
1 Cal.5th 398, 403, footnote 6.
1
We reverse the finding on the grand theft count but otherwise affirm.
BACKGROUND
In October 2019, a Victoria’s Secret loss prevention officer saw then 16-
year-old T.B., along with another minor, putting bottles of perfume into their
bags and subsequently leaving the store. The officer identified himself and
called out to the minors to stop. They did not do so and took off running
through the mall. The officer was able to catch up to T.B. and once again
ordered her to stop while displaying his badge. T.B. continued to flee and
split up from her coparticipant. The officer called 911. While on the phone,
T.B. reached into her bag and began throwing perfume boxes at the officer.
He was able to grab the bag and told her to stop throwing the perfume boxes.
T.B. then punched the officer in the face with a closed fist, knocking his
glasses off. As he reached down to grab his glasses, T.B. bit him on his
shoulder, puncturing his skin and causing him to bleed.
Roseville Police Officer Shannon Rauls received the call from dispatch.
Officer Rauls was in the Victoria’s Secret store at the time of the incident
because he had been responding to an earlier theft incident. Officer Rauls
proceeded to the parking lot to cut off the fleeing suspects. When he exited
the mall, he saw “two females running through the parking lot” with the loss
prevent officer “trailing at a distance.” Officer Rauls subsequently detained
both minors. A search of T.B. revealed the keys to her mother’s car which
was parked nearby. When Officer Rauls looked inside, he saw approximately
10 boxes of Victoria’s Secret perfume in the empty car with the sensors still
attached. All total, 37 boxes of perfume and merchandise were recovered
valued at “approximately $2,600.”
The Placer County District Attorney filed a section 602 petition
alleging one count of felony second degree robbery (Pen. Code, § 211) and one
2
count of felony grand theft (id., § 487, subd. (a)). The Placerville juvenile
court sustained both allegations contained in the petition, and then
transferred the case to Contra Costa County for disposition.
After the case was transferred, the Contra Costa juvenile court
adjudged minor a ward of the court, the parties stipulated the “maximum
custodial time will be 5 years,” and the court placed T.B. at her mother’s
home subject to several conditions, including that T.B. “[s]ubmit to drug and
alcohol testing as directed by the [Department Probation Officer].”
DISCUSSION
Grand Theft
Before sustaining the allegations, the Placer County juvenile court
heard from counsel. The deputy district attorney stated the minor had a blue
purse with her containing “approximately $377 worth of merchandise” and a
Zara bag containing “$545 of merchandise.” Additionally, there “was over
$700 worth of merchandise” recovered from T.B.’s mother’s car.3 The
prosecutor continued that T.B. “who was clearly stealing, used force in order
to attempt to retain possession of that property, and that use of force elevates
this from a theft to a robbery. The People would ask . . . the Court finds the
allegation true of a violation of Penal Code Section 211, and also established
is that she stole by herself and in conjunction with her co-participant over
$950 worth of merchandise and the allegation of grand theft is also true.”
The court, in turn, stated this was “the clearest case of robbery I have
seen in 26 years on the bench,” and further the “same is true as to the grand
theft charge, again, without a doubt. The value of the perfume was well over
the $950 limit.” The court sustained the allegations in the petition.
3 Minor’s coparticipant had a bag containing “approximately $963
worth of merchandise.”
3
Before the Placer County juvenile court transferred T.B.’s case to
Contra County for disposition, it noted on the order sustaining the
allegations that the maximum confinement was five years eight months (five
years for the robbery plus eight months for the grand theft). The court also
wrote on the order, “court finds this was a flagrant Estes[4] robbery, court
encourages judge to review video.” (Italics added.) The case was then
transferred to Contra Costa for disposition.
Before the Contra Costa County juvenile court announced disposition,
the court asked, “So I had a quick question related to the sustained offenses.
Was it basically the same course of conduct; the robbery and the grand theft?”
T.B.’s counsel replied, “It appears so, yes.” Later on in the proceedings when
determining restitution, the court once again asked, “I don’t think it should
be double this since this is the same course of conduct. I do understand that
two separate offenses were sustained, but it seems as if this is only one
course of conduct. Is that correct? [¶] I mean, I asked this earlier[,] but it
sounds like there was no separate grand theft from another store; is that
correct?” T.B.’s counsel replied, “That’s my understanding from the limited
information that I have. . . .”
The court went on to state, “Right. So I don’t think it’s fair to basically
double the restitution fine when it’s the same course of conduct. [¶]
Similarly, I haven’t gone back to look, I’m assuming it’s a six-year max for the
robbery, but they did not add extra time for the grand theft because it seems
like it would be subject to [Penal Code section] 654.” T.B.’s counsel
responded, “I think a five-year max.” The court continued, “Well, I’m just
asking because I took the time to look at the maximum custodial time. It had
five years and eight months, and that’s why I am thinking there was a
4 People v. Estes (1983) 147 Cal.App.3d 23 (Estes).
4
tacking on.” The court went on, the Placer County “set the time, and so that’s
why I am kind of confused because it would seem as if . . . [¶] . . . [¶] a max of
potentially five years because I think that’s the max for the robbery, but then
I thought I was wrong.”
After an off-the-record discussion, the court stated, “It would appear
that way, but I really don’t know what was considered by the other judge.
I’m just not entirely sure. [¶] . . . My thought would be if there is an
agreement that this was a continuous course of conduct and that this really
would be [Penal Code section] 654, that it really should be a max of five
years, but I only have a dispo report and very limited documents from Placer
County. But I just wanted to confirm that from my reading of the report it
seemed like it’s the incident from Victoria’s Secret that the [Penal Code
section] 487 was essentially—it was part of the continuous conduct of the
robbery.”
The prosecutor responded, “Judge, I’m fine with that. I mean, I don’t
know if maybe because they found the additional merchandise in the car they
are counting that, I don’t know. I am fine with stipulating to five years.
That’s fine. I have very limited information as well so I can see how it
appears to be just the [Penal Code section] 211, and so I think five years is
appropriate.”
The court then stated, “Because it seemed to be a—if there is a
stipulation to set it at five years I will do so. I just, I don’t want to second
guess what happened but I just want to clarify that from the report it seems
to be the same related conduct and will potentially be subject to [Penal Code
section] 654.”
On appeal, T.B. contends the original juvenile court erred in sustaining
both the robbery and grand theft allegations because multiple convictions are
5
prohibited where one offense is necessarily included in another.5 (People v.
Ortega (1998) 19 Cal.4th 686, 692 (Ortega), overruled on another point as
stated in People v. Reed (2006) 28 Cal.4th 1224, 1230-1231.)
As T.B. points out, “theft, whether grand theft or petty theft, is a
necessarily included offense of robbery.” (Ortega, supra, 19 Cal.4th at p. 694;
Estes, supra, 147 Cal.App.3d at p. 28.) Accordingly, T.B. is correct in
asserting she could not be convicted of both robbery and grand theft based
upon the same conduct. (Ortega, at p. 699.)
In Estes, supra, 147 Cal.App.3d 23, a security guard at a store saw the
defendant remove clothing from a rack, put it on, and leave without paying.
(Estes, supra, 147 Cal.App.3d at p. 26.) The guard followed the defendant
outside to a parking lot, identified himself, and asked him to return to the
store. (Ibid.) The defendant refused and began walking away. When the
guard attempted to detain him, defendant pulled a knife, and swung it at the
guard while threating to kill him. (Ibid.) A jury convicted the defendant of
both robbery and petty theft. (Ibid.)
5 It is clear from the record that the Contra Costa County court was
concerned about the implication of Penal Code section 654. However, on
appeal, T.B. raises a slightly different issue: that as theft is a lesser included
offense of robbery, the finding on the grand theft allegation must be reversed.
The Attorney General also categorizes this as a Penal Code section 654 issue.
Since the analysis is the same, we address respondent’s counter argument.
Penal Code section 654, subdivision (a) provides, “An act or omission that is
punishable in different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.” “This provision ‘protects against
multiple punishment, not multiple conviction. [Citation.]’ [Citation.]
Although it ‘literally applies only where such punishment arises out of
multiple statutory violations produced by the “same act or omission,” ’ we
have extended its protection ‘to cases in which there are several offenses
committed during “a course of conduct deemed to be indivisible in time.” ’ ”
(People v. Oates (2004) 32 Cal.4th 1048, 1062.)
6
On appeal, defendant asserted, among other things, that he could not
be convicted of robbery, as the property taken “was not taken from a person
since the security guard did not have the authority or control over the
property.” (Estes, supra, 147 Cal.App.3d at p. 26.) He also maintained that
since “theft is a lesser included offense within robbery,” he could not be
convicted of both robbery and petty theft. (Id. at p. 28.)
The Court of Appeal disagreed with the first contention but agreed with
the latter. As to the latter, the court concluded “[w]here there is sufficient
evidence to sustain the conviction of the greater offense, the conviction of the
lesser offense must be reversed.” (Estes, supra, 147 Cal.App.3d at p. 28.)
And “[s]ince there is substantial evidence to support the conviction of
robbery, we must reverse the conviction for petty theft.” (Id. at p. 29.)
The Attorney General posits that because the Contra Costa County
juvenile court did not stay the sentence on the grand theft finding under
Penal Code section 654, it can be inferred the court determined the grand
theft allegation was based on a “burglary” earlier in the day “that resulted in
the 10 boxed perfumes with Victoria’s Secret magnetic tags, located in
appellant’s mother’s car.” The sustained grand theft allegation, in turn,
necessarily involved T.B.’s return to the store and encounter with the
security guard.
Respondent’s argument fails for several reasons. First, there was no
burglary alleged in this case; rather, the two sustained allegations were
second degree robbery and felony grand theft of property over $950.6 Second,
6 We note that when the case was tried, the prosecutor asserted the
value of merchandise found in T.B.’s mother’s car was approximately
“$700”—not sufficient to support grand theft. (Pen. Code, § 487, subd. (a)
[grand theft is theft committed when “the money, labor, or real or personal
property taken is of a value exceeding nine hundred fifty dollars ($950)”].)
7
the timeline of events suggested by the Attorney General is not apparent
from the record; rather, the record suggests otherwise. Although it is not
clear from the limited record whether the Placer County juvenile court made
an express finding that the alleged crimes resulted from a single sequence of
events, it is clear that the court considered the robbery a “flagrant Estes
robbery.” (Italics added.) It is also readily apparent that the Contra Costa
juvenile court, which did not try the case, did not have a clear understanding
of the exact circumstances and therefore asked defense counsel, “Was it
basically the same course of conduct; the robbery and the grand theft?” T.B.’s
counsel replied, “It appears so, yes,” and the prosecutor did not disagree.
Accordingly, on this record, we conclude Estes applies, and the finding
on the grand theft allegation must be reversed. 7
Alcohol Condition
The court imposed the following probation condition: T.B. must
“[s]ubmit to drug and alcohol testing as directed by [the department
probation officer].”
Vagueness
“[T]he underpinning of a vagueness challenge is the due process
concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the
due process concepts of preventing arbitrary law enforcement and providing
adequate notice to potential offenders’ [citation], protections that are
‘embodied in the due process clauses of the federal and California
Constitutions. (U.S. Const., Amends V, XIV; Cal. Const., art. I, § 7.)’ ” (In re
While an itemized receipt was admitted into evidence, that receipt is not in
the record before us on appeal.
7 Although reversal of the grand theft finding is required, it does not
affect T.B.’s sentence because the juvenile court did not include the grand
theft count in determining the maximum term of confinement.
8
Sheena K. (2007) 40 Cal.4th 875, 890.) “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,’ if it is to
withstand a challenge on the ground of vagueness.” (Ibid.) Probation
conditions are given “ ‘ “the meaning that would appear to a reasonable,
objective reader.” ’ ” (In re I.V. (2017) 11 Cal.App.5th 249, 261.)
For the first time on appeal, T.B. contends the probation condition is
vague because she “can only guess at what might be required of her.”
Specifically, she does not know if she is “required to provide urine samples,”
or if she could be “required to submit to a blood draw at any time without
notice.”
When, as in this case, a minor is found to be a person described by
section 602 and the court does not remove the minor from the physical
custody of her parent, section 729.3 expressly permits the juvenile court to
require the minor to submit to urine testing.8
In addition, when, as in this case, a minor is also adjudged a ward of
the court, section 730 authorizes the court to “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).) Section 730 has been held to authorize
probation conditions requiring drug and alcohol testing by blood, breath, or
urine. (In re P.A. (2012) 211 Cal.App.4th 23, 33, 40 [upholding probation
8 Section 729.3 provides, “If a minor is found to be a person described
in Section 601 or 602 and the court does not remove the minor from the
physical custody of his or her parent or guardian, the court, as a condition of
probation, may require the minor to submit to urine testing upon the request
of a peace officer or probation officer for the purpose of determining the
presence of alcohol or drugs.”
9
condition requiring ward to “ ‘[s]ubmit to chemical test(s) of blood, breath, or
urine for alcohol/controlled substances, as directed by the probation officer’ ”];
see In re Jimi A. (1989) 209 Cal.App.3d 482, 487–488 [upholding probation
condition requiring ward to submit to “random drug testing”]; In re Jose R.
(1982) 137 Cal.App.3d 269, 278–280 (Jose R.) [upholding probation condition
requiring ward to submit to “ ‘any tests’ ” to determine alcohol and drug use].)
Accordingly, the condition is not unconstitutionally vague, and we turn
to whether the alcohol testing condition via urinalysis is reasonable.9
Lent and Other Constitutional Challenges
At a probation interview before disposition, T.B. admitted to regular
marijuana use. She smoked marijuana with her coparticipant “every other
week,” and she had “smoked marijuana [on] the day” of the incident. She
denied using “any other substances or alcohol.” The probation department
assessed T.B. as “moderate” risk in “Substance Abuse,” and noted her
assessment “suggest[ed] a need for monitoring and intervention.”
At the dispositional hearing, minor’s counsel objected to the alcohol
testing condition, arguing “[i]t does not appear that that was a factor in this
case. It’s not something that [T.B.] has used in the past, not anyone in her
family uses, under ‘Ricardo,’ I don’t think it’s related to the incident or future
criminality or past behavior by [T.B.]”
The juvenile court disagreed, stating, “I know that you’ve acknowledged
using marijuana regularly, and while there has been no acknowledgement of
using alcohol that I can recall, you are not to use or possess it. I think that is
an appropriate term of probation, and I hope there will be no positive alcohol
test or marijuana test.”
9 T.B. makes separate challenges to the testing condition “via blood
draw,” which we address ante.
10
“ ‘The purposes of juvenile wardship proceedings are twofold: to treat
and rehabilitate the delinquent minor, and to protect the public from
criminal conduct.’ ” (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo
P.).) When imposing probation conditions, the juvenile court considers the
circumstances of the offense as well as the minor’s entire social history. (In
re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds as stated in In
re Jaime P. (2006) 40 Cal.4th 128, 130, 139.) Moreover, “ ‘[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.’ ” (Ricardo P., at p. 1118.)
We review conditions of probation for abuse of discretion (Ricardo P.,
supra, 7 Cal.5th at p. 1118), upholding juvenile court orders unless “ ‘the
condition is “arbitrary or capricious” or otherwise exceeds the bounds of
reason under the circumstances.’ ” (Ibid.)
Under Lent, supra, 15 Cal.3d 481, a condition “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.’ ” (Id, at p. 486.) The Lent test is “conjunctive—all three prongs
must be satisfied before a reviewing court will invalidate a probation term.”
(People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Additionally, the Lent
test “governs in juvenile and adult probation cases alike.” (Ricardo P., supra,
7 Cal.5th at p. 1119.)
As she did in the juvenile court, T.B. contends the alcohol testing
condition is not reasonably related to future criminality in violation of
Ricardo P., and also violates her constitutional rights to privacy and her
11
Fourth Amendment rights against unreasonable seizures. Her arguments
have long since been rejected by the courts.
In re Kacy S. (1998) 68 Cal.App.4th 704 (Kacy S.) is directly on point.
In that case, the minors admitted to being within the provisions of section
602, were not removed from the physical custody of their parents, and were
placed on six months’ probation subject to various conditions, including that
they “ ‘submit to urine testing to determine the presence of alcohol and illegal
drugs in [their] system[s] pursuant to section 729.3.” (Kacy S., at pp. 707–
708.) On appeal, the minors contended the court abused its discretion in
imposing the urine testing condition because “neither [of] their offenses nor
their social histories suggest substance abuse,” “the condition violates their
constitutional rights to privacy, protection from unreasonable searches and
seizures, due process of law and equal protection.” (Id. at p. 708.)
First, the court determined that the condition was reasonable under
Lent. The court noted, the “urine testing condition is designed to detect the
presence of substances whose use by minors is unlawful. (Cal. Const., art.
XX, § 22 [alcohol]; Health & Saf. Code, § 11000 et seq. [drugs].) Thus, the
testing ‘ “relates to conduct which is . . . in itself criminal.” ’ ([Lent, supra,]
15 Cal.3d [at p.] 486. . . .) Moreover, in enacting section 729.3, the
Legislature has found that ‘alcohol and drug abuse’ are ‘precursors of serious
criminality. . . .’ (Stats. 1989, ch. 1117, § 1, subd. (a)(2). . . .) Thus, the
testing is also ‘ “reasonably related to future criminality.’ ’ (Lent, supra,
15 Cal.3d at p. 486.) Because the testing condition relates to criminal
conduct and is reasonably related to future criminality, its imposition is
within the juvenile court’s discretion even as measured by the Lent
formulation.” (Kacy S., supra, 68 Cal.App.4th at p. 710.)
12
Next, the Kacy S. court rejected the argument that the testing
condition was an unreasonable invasion of privacy, subjecting the minors to
unreasonable searches and seizures. (Kacy S., supra, 68 Cal.App.4th at
pp. 710–711.) The court noted, “a probationer’s expectations of privacy are
diminished by his probation status and are subordinated to governmental
activities which reasonably limit the right of privacy. [Citation.] [¶] The
testing condition is a reasonable intrusion upon a probationer’s expectation of
privacy. [Citation.] The governmental interest in testing is strong. The
juvenile court’s goals are to protect the public and rehabilitate the minor.”
(Id., at p. 711.) Sections 729.3 and 730 serve both goals. Section 729.3
“protects the public by establishing procedures to deter or prevent use of
alcohol and unlawful drugs by minors. It advances the rehabilitation of
young offenders by seeking to detect alcohol or drug use as a precursor of
criminal activity in order to facilitate intervention at the earliest time.”
(Kacy S., at p. 711; see § 730, subd. (b) [“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.” Italics added.].) Although testing “constitutes an
intrusion on privacy, the effect of the intrusion is outweighed by the
government’s legitimate interest in closely monitoring the rehabilitation of
minors who are granted probation and returned to the custody of their
parents.” (Kacy S., at p. 711.)
T.B. acknowledges Kacy S. but asks to revisit that case in light of
Ricardo P., decided 20 years later.10
10T.B. also points to the dissent in Kacy S. as enunciating the reason
why testing “should not be permitted as a juvenile probation condition in a
case where alcohol was not related to the offense.” The dissent stated there
was no “demonstrable relationship” between the offense—using bad language
13
Nothing in Ricardo P., supra, 7 Cal.5th 1113, alters the analysis or our
conclusion. In that case, after placing the minor on probation, the juvenile
court imposed a warrantless search condition “solely to enable probation
officers to monitor whether Ricardo is communicating about drugs or with
people associated with drugs.” (Id., at p. 1119.) The Supreme Court granted
review on the issue of whether the electronic search condition was reasonably
related to future criminality as is required under Lent. Thus, the high court
assumed the condition was neither related to the underlying offense nor
related to conduct which was itself criminal. (Id., at pp. 1116, 1118–1119.)
In concluding the condition was not reasonably related to future
criminality, the Supreme Court held the record before it, which contained “no
indication that Ricardo had used or will use electronic devices in connection
with drugs or any illegal activity,” was “insufficient to justify the substantial
burdens imposed” by the search condition. (Ricardo P., supra, 7 Cal.5th at
p. 1116.) As the court explained, “Lent’s requirement that a probation
condition must be ‘ “reasonably related to future criminality” ’ contemplates a
degree of proportionality between the burden imposed by a probation
condition and the legitimate interests served by the condition.” (Id. at
p. 1122.) Since the sweeping electronic search condition imposed “a very
heavy burden on privacy with a very limited justification,” it was not
on the school ground—and alcohol or drug use. In the case of section 729.3
which is permissive and subject to a test of abuse of discretion, if “there is no
indication that substance abuse by the minor played a direct role in the
offense or was a factor in bringing the offense about, the sentencing court
abuses its discretion in imposing search or testing conditions pertaining to
such substance abuse.” (Kacy S., supra, 68 Cal.App.4th at pp. 713–715 [dis.
opn. of Blease, Acting P.J.].) Here, however, T.B. did admit to regular
substance use and admitted that she had used marijuana on the day of the
incident.
14
“ ‘ “reasonably related to future criminality” ’ ” and was therefore invalid
under Lent. (Id. at p. 1124, italics omitted.)
T.B. compares her situation to that presented in Ricardo P, stating
Ricardo, like herself, “stole property on a day when he used marijuana. Yet
the California Supreme Court concluded that he had not wholly forfeited his
right to privacy, and that a probation officer could not rummage at will
through his electronics, searching for evidence of marijuana use.”
T.B.’s comparison falls short for several reasons. First, unlike an
electronics search condition that intrudes upon a wide range of otherwise
lawful activity, the drug and alcohol testing condition relates solely to
discovering evidence of minor’s unlawful actions. The testing condition is
valid under Lent for that reason alone. (See Olguin, supra, 45 Cal.4th 375,
379 [the three-part Lent test is conjunctive, and “all three prongs must be
satisfied before a reviewing court will invalidate a probation condition”].)
Further, the burdens imposed by the testing condition are proportional to
achieving the legitimate goal of preventing future criminality by monitoring
T.B.’s drug or alcohol use and establishing the means for early intervention
to aid in her rehabilitation. (See Ricardo P., supra, 7 Cal.5th at p. 1122
[“ ‘conditions of probation aimed at rehabilitating the offender need not be so
strictly tied to the offender’s precise crime’ [citation] so long as they are
‘reasonably directed at curbing [the defendant’s] future criminality’ ”].)
Finally, we note, T.B. does not challenge the drug testing condition, which
could also involve blood and urine analysis. Given this, any burden placed on
T.B. is significantly lessened.
Finally, T.B. makes separate challenges to the alcohol testing condition
“via blood draw.” For the reasons stated above, we also conclude chemical
testing, including means other than urine testing, such as blood testing, is
15
also reasonable under Lent. Indeed, courts have upheld testing conditions by
means of blood, breath, or urine, and we look to P.A., supra, 211 Cal.App.4th
23, as illustrative.
In that case, the court rejected a minor’s challenge to a condition that
he “ ‘[s]ubmit to chemical test(s) of blood, breath, or urine for
alcohol/controlled substances, as directed by the probation officer or any law
enforcement officer.’ ” (P.A., supra, 211 Cal.App.4th at p. 32.) The court held
that “[b]ased on the plain language of sections 729.3 and 730 and the
legislative history of section 729.3, we conclude that the enactment of section
729.3 was not intended to affect the court’s discretion under section 730 to
impose blood or breath testing as a condition of probation when it is
permissible to do so under that statute.” (P.A., at p. 40.)
T.B. acknowledges P.A. held blood, alcohol or urine tests were allowed
under section 730. However, she asserts the case was wrongly decided for
two reasons. First, she contends “a specific statutory provision always
controls over a general one,” and here the section “specifically addressing
testing of juvenile delinquents for drug and alcohol use is section 729.3, and
it therefore controls over section 730.” Second, she asserts that as section
729.3 was enacted after section 730, section 730 “was amended by
implication” because it “conflicts” section 729.3.
P.A. addressed both of these contentions. The minor in that case also
relied on the rule of statutory construction that specific statutory provisions
control over general provisions. In response, the court stated, “If section
729.3 provided that the court shall not require minors to submit to blood
testing, Minor’s argument would be appropriate. The specific provision (no
blood testing) would clearly control over the general provision (court may
impose reasonable conditions). Section 729.3, however, does not prohibit
16
blood testing on minors; it merely authorizes urine testing. Moreover, this
rule of construction ‘is merely an aid in determining legislative intent. It will
not be applied so as to defeat legislative intent otherwise determined.’
[Citation.] . . . [I]n enaction section 729.3, the Legislature did not intend to
preclude blood testing when it is otherwise permissible under section 730.”
(P.A., supra, 211 Cal.App.4th at p. 40, fn. 14.)
Next, the court stated “if the Legislature intended to abrogate the
existing judicial authority to impose blood testing as a probation condition
under section 730, it could have easily done so, but did not. Section 730 was
enacted in 1961. (Stats. 1961, ch. 1616, § 2, pp. 3459, 3487.) At least one
court relied on that statute to approve of a probation condition that required
submission to ‘any test’ for drug or alcohol use prior to the enactment of
section 729.3 in 1989. (. . . Jose R., supra, 137 Cal.App.3d at pp. 278–280.) If,
at the time section 729.3 was enacted, the Legislature intended to abrogate
Jose R. or limit the court’s ability to impose such a condition, it could have
done so by amending section 730 or otherwise making clear that blood testing
was not permitted. Expressly authorizing urine testing in section 729.3 and
saying nothing as to blood or breath testing does not indicate such intent.”
(P.A., supra, 211 Cal.App.4th at p. 39.)
Given T.B.’s regular use of marijuana, including on the day of the
robbery and the probation report concluding T.B. was at “moderate” risk of
substance abuse, the juvenile court acted well within its discretion to order
T.B. to submit to both drug and alcohol testing.
DISPOSITION
The juvenile court’s true finding on the grand theft count is reversed.
In all other respects, the judgment is affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A160837, In re TB
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