In re Daniel P. CA4/1

• Court: California Court of Appeal
• Decided: September 16, 2016
• Docket: D069504
• Status: Unpublished

Opinion

Filed 9/16/16 In re Daniel P. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 DANIEL P., a Person Coming Under the Juvenile Court Law. D069504 THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J262868)

v.

DANIEL P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino, Pamela P. King,

Judge. Affirmed as modified with directions.

David Cohen, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie

Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent. In this juvenile case, Daniel P. (the Minor) admitted committing a lewd act upon a

child under the age of 14 years old. (Pen. Code, § 288, subd. (a); Welf. & Inst. Code,

§ 602.) The Minor was 12 years old at the time he committed the acts involving his sister

who was then six years old. The court placed the Minor on probation in out-of-home

foster care. The court imposed a number of conditions of probation.

The Minor appeals challenging one condition of probation which restricts him in

associating with all persons under the age of 18. He contends the condition is overbroad

and, as worded, violates his constitutional right to free association. We agree and will

direct the juvenile court to modify the condition.

STATEMENT OF FACTS

The Minor's adopted mother discovered the Minor in the bathroom with his six-

year-old sister. The Minor was naked with an erect penis, while the sister was pulling up

her pants. The sister described how the Minor placed his penis in her "bottom." The

Minor admitted three or four occasions in which he placed his penis against her vagina

and anus and that on one occasion he briefly penetrated her anus.

DISCUSSION

One of the conditions requested by the probation officer and imposed by the court

was: "25. Not associate with (persons/females/males) he/she knows or reasonably

should know are under the age of 18, unless in the presence of a responsible adult who is

aware of the nature of his/her background and current offense, and who has been

approved by the probation officer."

2 The Minor objected to the condition as overbroad and requested modification.

The court declined. The Minor argues again on appeal that the condition is overbroad

and unnecessarily interferes with the constitutional right of association.

A. Legal Principles

The juvenile court has wide discretion to craft reasonable conditions of probation

that will help in the rehabilitation of juveniles and prevent them from reoffending. (In re

Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) The juvenile court has discretion to

utilize, where appropriate, conditions of probation which might not be reasonable for an

adult. (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82.)

The court in Sheena K. also made clear that probation conditions for juveniles

must be reasonable, understandable and must not unduly interfere with otherwise lawful

activities. (Sheena K., supra, 40 Cal.4th at p. 890.)

We review the juvenile court's imposition of probation conditions under the abuse

of discretion standard. We will not set aside such conditions unless the record

demonstrates an abuse of discretion. (In re Christopher M. (2005) 127 Cal.App.4th 684,

692.)

B. Analysis

The condition as written forbids all association with persons under the age of 18

without adult supervision by a person aware of the Minor's circumstances. The court's

objective is clear. The Minor molested a six-year-old girl in a closed room on several

occasions. Thus, it seems reasonable to limit his contacts with persons who may be

vulnerable. However, the condition seems overbroad. For instance, the condition would

3 apply if the Minor attends school. He could not be in a room with other students without

an informed adult present, whether the students are male or female or whether they are

years older than the Minor. Literally applied, the Minor could not travel down the

hallway of the school to another classroom without the immediate presence of an

informed adult.

There is nothing in the nature of the offense that would warrant exclusion from

associating with any persons under age 18. On the other hand, there may be

circumstances, which the probation officer could identify for the court, that would pose

risks that therefore could be restricted. There certainly could be restrictions on the place

and manner of "association" with persons who may be vulnerable. It is unclear, however,

that a blanket ban against all "association" with this enormous class of persons in the

absence of an informed adult is sufficiently tailored to meet the rehabilitative purpose

without undue restriction of liberty.

We are confident the juvenile court and the probation officer can narrow the scope

of this condition to meet the balance required by Sheena K., supra, 40 Cal.4th at

page 890. Accordingly, we will remand the case to the juvenile court to appropriately

modify the condition.

4 DISPOSITION

The juvenile court is directed to vacate the current version of condition 25 and to

modify the condition in accordance with the views expressed in this opinion. In all other

respects the true finding and the dispositional orders are affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.