In re Carlos G. CA4/1

Filed 5/13/13 In re Carlos G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re CARLOS G., a Person Coming Under
the Juvenile Court Law.
D062787
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J232117)
v.
CARLOS G.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Carlos O.
Armour, Judge. Affirmed as modified.
Law Office of Alissa L. Bjerkhoel and Alissa L. Bjerkhoel, 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, Lilia E. Garcia and Elizabeth M.
Carino, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, Carlos G. (Minor) admitted count 1 in a juvenile
court petition, which alleged he imported a controlled substance in violation of Health
and Safety Code section 11379, subdivision (a). Thereafter the court dismissed the
remaining counts and allegations with a Harvey1 waiver.
At the disposition hearing, the court placed the Minor on probation subject to a 60
to 90-day commitment to the short term offender program (STOP) and a number of other
conditions. The Minor, who is a U.S. citizen, was placed with his mother in Tijuana,
Mexico.
The Minor appeals contending the juvenile court erred in failing to calculate the
Minor's predisposition custody credits and that one of the probation conditions is
unconstitutionally vague and overbroad. We agree the court was required to calculate the
Minor's predisposition custody credits, although such credits would not serve as a
deduction from the time required to participate in the STOP program. Otherwise, we will
reject the Minor's remaining contention and affirm.
1 People v. Harvey (1979) 25 Cal.3d 754, 758.
2
STATEMENT OF FACTS
Since the Minor does not challenge the factual basis for his admission, we will
only summarize the facts of the offense in order to provide context for the discussion
which follows.
On August 24, 2012, the Minor attempted to enter the United States from Mexico.
He was contacted by U.S. agents who discovered the Minor had 3.2 pounds of
methamphetamine in various packages taped to his legs.
The Minor waived his Miranda2 rights and admitted he was intentionally bringing
an illegal substance into the country. He said he was going to be paid $700 for his work.
DISCUSSION
I
CUSTODY CREDITS
At the disposition hearing the juvenile court did not calculate the time the Minor
spent in custody prior to that hearing. The parties agree that the Minor spent 32 days in
custody prior to the disposition hearing.
The Minor contends he is entitled to have 32 days calculated as a credit against his
maximum term of confinement. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067; In
re Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079.)
In the respondent's brief, the People first contend the Minor is not entitled to a
credit calculation because he was not ordered to serve the maximum custody. We think
2 Miranda v. Arizona (l966) 384 U.S. 436.
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the respondent misunderstood the Minor's contention. As the Minor makes clear in his
reply brief, he is not arguing for a credit against the time he was ordered to spend in the
STOP program. Rather, he simply asks that the actual credits be calculated so that if he
ever violates probation, his time in predisposition custody will have been established.
We agree the Minor is entitled to the calculation of custody credits, indeed it is the
juvenile court's duty to make such calculation. (In re Emilio C., supra, 116 Cal.App.4th
at p. 1067.)
Since the parties are in agreement that the Minor is entitled to 32 days of pre-
disposition credits, we order the juvenile court to modify its dispositional order to reflect
the Minor is entitled to 32 days of predisposition credits against the maximum term for
which he may be liable based on the true finding. (People v. Guillen (1994) 25
Cal.App.4th 756, 764.)
II
PROBATION CONDITION
The Minor contends, for the first time on appeal, that one of his probation
conditions is vague and overbroad. Specifically, he challenges the condition imposed by
the juvenile court that when he crosses the international border, he must notify "the
agents at the border that he is on probation in the United States for smuggling
methamphetamine across the border." The Minor did not object to the condition and told
the court he understood the requirements of the condition.
The Minor now contends he was not required to object to the condition and that
the condition is vague because he might not know which, or how many agents "at the
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border" he must inform of his probation condition. He further argues that so informing
agents will likely subject him to searches and delays in crossing the border, which is a de
facto banishment.
First, we find the issue forfeited for failure to object. Second, we are satisfied the
condition is not vague and that the condition is directly related to his rehabilitation from
the current offense. Finally, we reject the argument that he will be effectively banished
from the country if he is subjected to possible searches when he crosses the border.
A. Standard of Review
Juvenile courts exercise wide discretion in structuring conditions of probation for
minors. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) We review the juvenile
court's decision to impose probation conditions under the abuse of discretion standard.
(In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) A condition that might be
unconstitutional as to an adult may be appropriate for a minor under the supervision of
the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
B. Legal Principles
As an ordinary proposition, a person may not challenge a condition of probation
for the first time on appeal. Ordinarily, an objection in the trial court is necessary to
preserve the issue for appellate review. (People v. Welch (1993) 5 Cal.4th 228, 234-235.)
There are circumstances, however, where a probation condition may be challenged on
appeal without having objected in the trial court. (In re Sheena K., supra, 40 Cal.4th at p.
888.) However, the exception carved out in Sheena K. applies to challenges that are
essentially legal in nature, akin to a facial challenge for vagueness or for overbroad
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intrusions into otherwise lawful activities. (Id. at p. 890.) The court in Sheena K. noted
that generally a minor should object to such conditions in order to allow the trial court to
correct any problem that may exist. (Id. at p. 889.)
A condition of probation is not overbroad if it is narrowly tailored and reasonably
related to the minor's underlying crime and his rehabilitation. (Alex O. v Superior Court
(2009) 174 Cal.App.4th 1176, 1183.) In order for a condition to be constitutionally
overbroad it must impose some concrete impairment on constitutionally protected
conduct. (People v. Rubalcava (2000) 23 Cal.4th 322, 333.)
The right to travel is a protected interest, and unnecessary restrictions on that right,
including effective banishment from a state or the country, can be unlawful. (In re
James C. (2008) 165 Cal.App.4th 1198, 1203.) On the other hand, a minor's right to
travel can be reasonably restricted to the extent necessary to aid in the minor's
rehabilitation. Thus, in Alex O. v Superior Court, supra, 194 Cal.App.4th 1176, the court
approved a condition requiring the minor to notify his probation officer before entering
the United States. (Id. at p. 1183.)
Finally, as to vagueness, the term of probation must be sufficiently precise for the
minor to know what is required, and for the court to know when such condition has been
violated. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
C. Analysis
Starting first with forfeiture, we are satisfied this case does not fall within the
exceptions to the requirement for objection in the trial court. The questions raised here
are not really issues of law, which can be resolved without reference to the facts of the
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case. The condition is plainly directed to preventing the very criminal activity which
brought the Minor into the juvenile justice system. He clearly needs to be deterred from
such conduct. The court had also imposed a search and seizure condition on him before
requiring the Minor to also notify border agents about his probation condition.
The arguments the Minor makes here include the claim he might get searched at
the border and that might work a banishment. He also argues he might not know how
many agents to notify. Yet he told the court he understood the condition, and without
challenge has agreed to subject himself to search without warrant or probable cause.
So, to try to discern vagueness or alleged over breadth of the condition we have to
look at the facts of the offense, and the relationship of this condition to the offense and
whether the Minor was informed of what he must do. Contemporaneous objection would
have allowed the court and counsel to address any uncertainty or to make such
modifications as would have allowed the court to more narrowly tailor its action if
appropriate. In re Sheena K, supra, 40 Cal.4th 875, does not overrule the requirements of
People v. Welch, supra, 5 Cal.4th 228. Accordingly we find the challenge to this
condition was forfeited by failure to raise the issue in the juvenile court. However, out of
an abundance of caution we will consider the challenges to the condition on the merits.
Dealing first with vagueness, the Minor argues the condition is vague because he
might not know which or how many agents "at the border" he must inform. Of course,
the Minor, who regularly crosses the border, did not express any doubts. The obvious
import of the requirement of notification is so that government agents working at the
border with whom the Minor has contact know he is on probation for smuggling. While
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it is always possible to speculate as to hypothetical circumstances, we think a common
sense reading of the condition clearly directs the Minor to alert the agents at the border,
with whom he comes into contact about being on probation for smuggling.
Will such disclosures prompt searches and delays? Probably so. But then, the
potential for such searches should keep the Minor aware that future smuggling efforts are
likely to lead to discovery and arrest. That, of course, is the point of the requirement.
Finally, the Minor argues the delays in crossing the border will be de facto
banishment. There is no support in this record for the assertion.
Ironically, the Minor recognizes courts have upheld requirements for notification
of a minor's probation officer before crossing the border. Why such a condition? The
answer would be so the probation officer could notify border officials who could, in turn,
conduct such searches as might be warranted. What would be the effect of notification
by the probation officer? Such notification would likely result in searches and delays.
The burdens of those searches and delays are the unfortunate result, particularly in this
case, of criminal conduct which needs to be deterred if the court is to attempt to keep a
minor away from future, and perhaps more serious criminal activity.
The current condition is not a banishment and is a reasonable limitation on
crossing the border, where the Minor has already been drawn into serious criminal
smuggling activity. The condition of probation at issue here is valid.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
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