People v. G.B. (In re G.B.)

24 Cal.App.5th 464

234 Cal.Rptr.3d 308

IN RE G.B., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.G.B., Defendant and Appellant.

A152105

Court of Appeal, First District, Division 1, California.

Filed May 31, 2018

Certified for Partial Publication.^*

Nathan Siedman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano and Violet M. Lee, Deputy Attorneys General for Plaintiff and Respondent.

Margulies, J.Appellant G.B. was declared a ward of the court and placed on juvenile probation after the juvenile court sustained allegations he possessed a concealable firearm in violation of Penal Code section 29610. Appellant appeals from the jurisdictional and dispositional orders, arguing the jurisdictional finding must be reversed because the eyewitness identification was unreliable, and four of the probation conditions imposed are unconstitutionally vague or overbroad.

We conclude a probation condition requiring that appellant "have peaceful contact only with all law enforcement" is unconstitutionally vague and strike that condition. We narrow the condition appellant stay away from any school campus unless enrolled consistent with state law that prohibits persons from visiting school grounds without notifying school authorities. We otherwise affirm the jurisdictional and dispositional orders.

I. BACKGROUND

On May 8, 2017, the Contra Costa County District Attorney filed a wardship petition pursuant to Welfare and Institutions Code section 602, alleging appellant, a minor, committed a felony by possessing a concealable firearm in violation of Penal Code section 29610.

On the afternoon of May 4, 2017, V.D., a maintenance supervisor at the Pittsburg Marina, saw appellant with some other young men in an area near the Pittsburg Marina maintenance yard. V.D. first saw appellant and the others through a cyclone fence, but backed away when he realized he would be seen. He then moved to a location inside a building where he could see them through an open door approximately 30 feet away.

V.D. saw appellant was standing up, while the others were sitting down. Appellant was dancing and waving a silver gun in the air. Appellant waved the gun in his right hand for more than 30 seconds, then set it down carefully on the ground. Appellant was wearing a white T-shirt. It was a "[v]ery bright day," and V.D. said he saw appellant and the gun "[v]ery clearly" from about 30 feet away.

V.D. contacted the police. About five minutes later, police officers arrived on the scene. They detained a group of four individuals, one of whom was appellant. One of the officers also discovered a shotgun and a silver revolver in the area where the young men had been. When officers asked V.D. to describe the person who had been holding a gun, he was only able to remember the person was wearing a white T-shirt, not a tank top.¹ At the scene, V.D. told officers he could not tell whether the individual with the gun had a ponytail, but later V.D. testified he saw someone with a ponytail that day but it was not the person waving the gun. At the jurisdictional hearing, V.D. again identified appellant as the person who had been holding the gun.

Officer Erica Baker also testified at the jurisdictional hearing. Baker said the first responding officers had relocated the four detained young men and had them sit on the ground about 15 feet away from where she and V.D. were standing. When Baker asked V.D. to identify the person who had been waving the gun, he identified appellant. Baker testified she believed appellant wore a white T-shirt that day, and a heavier person with a ponytail wore a white tank top.

Photographs of the four individuals detained by police were also admitted into evidence at the hearing. The photo of appellant shows him wearing a black T-shirt.

The juvenile court sustained the allegations of the petition. The judge remarked, "[A]lthough it does come down to a question of identification—and I cannot explain why or understand why the photo of [appellant] has him wearing something that looks like a black shirt or t-shirt. Both [V.D.] and Officer Baker testified they observed [appellant] as one of the individuals wearing a white t-shirt when she came on scene. So the fact that Officer Baker observed [appellant] wearing a white t-shirt corroborates [V.D.] testifying in terms of his identification. He was pretty adamant, I thought, in court and apparently he seemed to be pretty sure of himself when he reported it to the police."

At the dispositional hearing, appellant was adjudged a ward of the court with no termination date. The court reduced his offense to a misdemeanor, and placed him on probation subject to various conditions.

II. DISCUSSION

A. Substantial Evidence^**

B. Probation Conditions

Appellant next challenges four of the probation conditions imposed by the juvenile court on the basis they are either unconstitutionally vague, overbroad, or both.

The juvenile court imposed the following conditions in its written order: (1) "Do not change residence without prior approval of [Deputy Probation Officer]"; (2) "Minor not to be on school campus unless enrolled"; (3) "Stay out of Riverview Park in Pittsburg, CA"; and (4) "Minor to have peaceful contact only with all law enforcement."² At the dispositional hearing, the court further explained the conditions as follows: "[Y]ou cannot change your address without the prior approval of the deputy probation officer. And you must notify the deputy probation officer of any change in residential address or telephone number within five days of any such change. [¶] ... [¶] And you shall not be on a school campus unless you are enrolled. [¶] ... [¶] And you must stay out of the Riverview Park in Pittsburg.... [¶] ... [¶] And you must have peaceful contact with law enforcement. So what that means is you may be interacting with law enforcement, and you just cannot act aggressively toward law enforcement specifically. Not abridging your First Amendment rights. I just do not want you to act aggressively."

1. Residence Change Approval

As to the first condition regarding not changing his residence without prior approval from his probation officer, appellant argues the condition is facially overbroad, unconstitutionally restricts his right to travel and associate with his family, and grants arbitrary decisionmaking power to the probation officer to veto his future choice of residence "for any reason or no reason at all." We are not convinced.

First, we conclude appellant forfeited his right to challenge the residency change approval condition by failing to object below. We do not agree with his contention that his appeal raises a facial challenge or presents a pure question of law. When the state takes jurisdiction over a minor, it takes legal custody of the child and " ‘stands in the shoes of the parents.’ " ( In re R.V. (2009) 171 Cal.App.4th 239, 248, 89 Cal.Rptr.3d 702.) " ‘[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. ) Thus, whether appellant's probation condition is permissible depends on whether it is tailored to meet his specific needs, an inquiry which requires us to review his particular circumstances and the underlying factual record. As our Supreme Court has observed, "characteristically, the trial court is in a considerably better position than the Court of Appeal to review and modify a ... probation condition that is premised upon the facts and circumstances of the individual case." ( In re Sheena K. (2007) 40 Cal.4th 875, 885, 55 Cal.Rptr.3d 716, 153 P.3d 282 ( Sheena K. ) [facial challenge that the language of a probation condition is unconstitutionally vague and overbroad does not require scrutiny of individual facts and circumstances but review of abstract and generalized legal concepts].)

In any event, even if we considered appellant's overbreadth claim on the merits, we would reject it. Courts often permissibly impose limitations on a probationer's movements as a condition of probation to facilitate supervision, rehabilitation, and compliance with the terms of their conditional release. ( People v. Moran (2016) 1 Cal.5th 398, 406, 205 Cal.Rptr.3d 491, 376 P.3d 617 ( Moran ); see Sheena K., supra, 40 Cal.4th at p. 889, 55 Cal.Rptr.3d 716, 153 P.3d 282 [juvenile court has wide discretion to impose probation conditions that further ends of justice and that reform and rehabilitate ward].) A probation condition may reasonably restrict the constitutional rights to travel and freedom of association, so long as it reasonably relates to reformation and rehabilitation. ( People v. Stapleton (2017) 9 Cal.App.5th 989, 995, 215 Cal.Rptr.3d 534 ( Stapleton ).)

Two recent cases have rejected arguments a residency approval condition is unconstitutional. In Stapleton , the defendant was required to live in a residence approved by his probation officer, give written notice 24 hours before changing his residence, and was not allowed to move without approval from his probation officer. ( Stapleton , supra , 9 Cal.App.5th at p. 992, 215 Cal.Rptr.3d 534.) Recognizing the right to travel and freedom of association are " ‘constitutional entitlements,’ " the court nonetheless concluded the residency approval condition was reasonably related to reformation and rehabilitation because a probation officer must know where a probationer resides and with whom he is associating in deterring future criminality. ( Id. at pp. 995–996, 215 Cal.Rptr.3d 534.) Further, the residency conditions were appropriate in light of the defendant's crime and criminal history, which suggested a need for oversight. ( Id. at p. 996, 215 Cal.Rptr.3d 534.) In People v. Arevalo (2018) 19 Cal.App.5th 652, 228 Cal.Rptr.3d 192 ( Arevalo ), the court...