In re K.B. CA1/2 ( 2022 )

Filed 4/18/22 In re K.B. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re K.B., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A163150
K.B.,
Defendant and Appellant. (Contra Costa County
Super. Ct. No. J21-00147)
After K.B. pleaded no contest to battery, he was adjudged a ward of the
court and placed on probation subject to a number of conditions. In this
appeal, he challenges two of these conditions: that he submit to warrantless
searches of his person, property, any vehicle under his control, and residence,
and that he not be on a school campus unless he is enrolled or has permission
from school authorities. K.B. contends that both conditions are invalid under
People v. Lent (1975) 15 Cal.3d 481 (Lent) and In re Ricardo P. (2019) 7
Cal.5th 1113 (Ricardo P.), as well as unconstitutionally overbroad. We will
affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
We draw our summary of the facts from the probation department’s
report. K.B., then 17 years old, and his girlfriend were at Planned
Parenthood. While they were outside, K.B. grabbed his girlfriend’s throat
and pushed her against a concrete wall. She tried to push K.B. away, but he
maintained a grip on her throat and continued to push her against the wall
for about ten seconds, until a Planned Parenthood employee came out of the
building. K.B. also threatened to pour gasoline on nearby protestors. Police
officers responded to the scene, and found K.B. and his girlfriend in a car,
yelling, arguing, and slapping and pushing at each other’s hands. The
girlfriend was trying to retrieve her cell phone from K.B., who would not
return it to her. K.B. was removed from the car, and an officer heard him tell
the girlfriend, “I’ll fucking kill you, bitch.” The girlfriend had scratch marks
on her neck. K.B. was arrested and taken to juvenile hall.1
The Contra Costa County District Attorney filed a juvenile wardship
petition under Welfare and Institutions Code2 section 602, alleging K.B.
committed misdemeanor battery on a person with whom he has or had a
dating relationship (Pen. Code, §§ 242/243, subd. (e)(1); count 1.) As part of a
negotiated disposition, K.B. pleaded no contest to an amended count 2, simple
battery (Pen. Code, §§ 242/243, subd. (a)), and count 1 was dismissed.
At the dispositional hearing, K.B. was adjudged a ward of the court
with no termination date and placed on probation in his mother’s home,
1A few days after the incident, the court issued a criminal protective
order prohibiting K.B. from contacting the girlfriend or coming within 100
yards of her.
2Statutory references are to the Welfare and Institutions Code unless
otherwise specified.
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subject to various conditions. K.B. timely appealed from the dispositional
order.
DISCUSSION
A. Applicable Law and Standard of Review
In In re Cesar G. (2022) 74 Cal.App.5th 1039 (Cesar G.), we recently
summarized some of the law pertaining to probation conditions imposed by
the juvenile court:
“ ‘The juvenile court is authorized 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).) We review the juvenile court’s probation
conditions for abuse of discretion. (In re P.A. (2012) 211 Cal.App.4th 23, 33.)
[¶] Well-established principles guide our review. “ ‘The state, when it asserts
jurisdiction over a minor, stands in the shoes of the parents’ [citation],
thereby occupying a ‘unique role . . . in caring for the minor’s well being.’
[Citation.] . . . [¶] The permissible scope of discretion in formulating terms of
juvenile probation is even greater than that allowed for adults.” ’ ” (Cesar G.,
supra, 74 Cal.App.5th at p. 1045, quoting In re Edward B. (2017) 10
Cal.App.5th 1228, 1232 (Edward B.).)
“ ‘The juvenile court’s discretion in imposing conditions of probation is
broad but not unlimited. (In re D.G. (2010) 187 Cal.App.4th 47, 52, (D.G.).)
Our Supreme Court has stated criteria for assessing the validity of a
probation condition: Upon review, “[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[.]’ ” (Lent, supra, 15 Cal.3d at p. 486.) “Conversely, a condition of
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probation which requires or forbids conduct which is not itself criminal is
valid if that conduct is reasonably related to the crime of which the defendant
was convicted or to future criminality.” (Ibid.) Adult and juvenile probation
conditions are reviewed under the Lent criteria. (D.G., supra, 187
Cal.App.4th at p. 52.) . . . In determining reasonableness, courts look to the
juvenile’s offenses and social history. ([Id. at p. 53].)’ (Edward B., supra, 10
Cal.App.5th at p. 1233.)
“In Ricardo P., our Supreme Court clarified that the requirement that a
probation condition 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.’ (Ricardo P.,
supra, 7 Cal.5th at p. 1122.) A condition directed at curbing future
criminality need not be ‘ “strictly tied to the offender’s precise crime” ’; for
example, a condition may be based on ‘information in a probation report that
raises concerns about future criminality unrelated to a prior offense.’ (Ibid.)
“The reasonableness standard is not the only limit on the juvenile
court’s discretion. A probation condition will be invalidated as
unconstitutionally overbroad if any limitations it imposes on a person’s
constitutional rights are not closely tailored to the purpose of the condition.
(In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) When a probation
condition is challenged as facially overbroad, without reference to the
particular sentencing record developed in the trial court, an issue of law
arises that is subject to de novo review on appeal. (Id. at pp. 888-889.)”
(Cesar G., supra, 74 Cal.App.5th at p. 1045.)
B. Search Condition
The probation department recommended that K.B. be subject to a
search condition requiring him to submit his person, property, any vehicle
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under his control, and his residence, to search and seizure by any peace
officer at any time, with or without a warrant.
K.B.’s counsel objected to the condition as unreasonable under Lent and
Ricardo P., because it placed a “disproportionate burden” on K.B. in view of
his “simple misdemeanor battery first offense” and the fact that K.B. had no
weapons or contraband on his person. Counsel also argued that the search
condition had no relation to the goal of addressing K.B.’s “anger management
issues.”
The prosecutor urged that because K.B. committed a violent crime and
admitted using marijuana, the condition was appropriate for probation
officers to ensure that he did not have weapons or drugs.
The court noted that K.B. had committed “a very disturbing, recorded,
violent crime,” and acknowledged that this was his first offense, that no
weapons were alleged to have been involved, and that a separate condition
addressed the possession of drugs.3 The court then explained its decision to
impose the search condition:
“One, I’m concerned about your marijuana use.” The court noted that
although K.B. represented that he was not a regular user and had not used in
a long time, the report was “completely contrary to that.” The court
continued, “And second, is the concern about your driving and operating any
vehicles without being licensed and insured. . . . [A]lso, [I’m] looking at the
fact that you turn 18 in December, which means you’re legally an adult, but
also means you’ll continue to be on probation. . . . [¶] I’m also considering the
3The court was referring to a condition that K.B. not “knowingly use or
possess any illegal drugs, marijuana or synthetic marijuana, drug
paraphernalia, alcohol or prescription drugs for which he does not have a
current prescription issued by a duly licensed physician,” and submit to drug
and alcohol testing.
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other incidents contained in the report that reflect your . . . at least current
challenge to control your anger and responses, . . . and I’m thinking of the
comments to protestors, the incidents from school, which included the use of
marijuana and vaping. [¶] So that’s my explanation as to why I’m not
granting your attorney’s request not to issue a search and seizure clause.”
K.B. argues the search condition is unreasonable under Lent and
unconstitutionally overbroad in the circumstances, and asks us to strike it.
We begin with the Lent analysis, focusing on its third element. K.B.
contends that the search condition burdens him by requiring him to submit to
searches without probable cause, and is not reasonably related to his future
criminality.
The record shows that K.B. had a history of drug use and a history of
physical fighting, as well as a lack of supervision at home. Although K.B.
told the probation department he “barely” smokes, he also said that he uses
marijuana socially and often has a blunt by himself, and purchases his blunts
himself. He said he consumes marijuana to help him through difficult times
in his life, and added that his cousin was recently killed and that he has lost
several family members and friends in the past few years. He also uses
marijuana to help him sleep at night because of back pain. His school
discipline summary showed a range of conduct, including being under the
influence of marijuana, and smelling of marijuana. His mother is aware of
his use of marijuana; according to the probation department, she does not
approve, but “she is fine with it as long as he is not using anything ‘serious.’ ”
K.B. told the probation department he had received several behavioral
referrals at school for being involved in arguments, and said he had been
involved in fights, including at least one at school, and was suspended for
fighting. He reported that he gets angry a lot and cannot let things go;
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“angry words” just come out, and the more he talks, the more furious he
becomes. He said that rage takes control, he feels stronger, and sees “a
million black dots” in his eyes. He once punched someone so hard the person
blacked out, and he broke his own elbow while he was arguing with someone
on the telephone and slammed his elbow against a pillar.
K.B.’s mother’s attempts to supervise and incentivize him have had
limited success. She works Sunday through Thursday from 10:30 p.m. to
6:30 a.m., and sometimes works extra hours or extra days. She is the only
adult who lives in the house, and she said that when she is at work, K.B.
looks out for himself. Although she said K.B. has a curfew, K.B. said he had
none. He also said that his mother was often unaware of his whereabouts; he
does not ask her permission to leave the house; and he has slept at other
people’s houses without her knowledge. Asked about the consequences for
him if he does not do what his mother asks of him, he replied that he was “too
old for consequences.” The probation department concluded that the lack of
parental supervision while K.B.’s mother is working or sleeping allowed K.B.
to do as he pleases, and that he chooses to involve himself in negative and
delinquent behavior, including attending illegal and dangerous sideshows as
regular entertainment.
K.B. told the probation department that he did not drive because he
does not have a license, but he also said that a neighbor had taught him to
drive and that before his interview with the department “he was running
errands . . . when ‘his own vehicle was towed.’ ” The probation department
expressed concern that he was driving without proper training or a license or
insurance, putting himself and others at risk.
Under the circumstances here, the burdens imposed on K.B. by the
search condition are not unreasonable or disproportionate in light of the
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legitimate interest in his rehabilitation and in keeping him from criminal
behavior in the future. The juvenile court could reasonably conclude that the
search condition would enhance the probation department’s ability to
supervise K.B., particularly in the absence of effective supervision by his
mother, and would help ensure his compliance with the probation conditions
requiring him to be at home at night unless accompanied by a parent or
guardian, and prohibiting him from using or possessing illegal drugs, driving
unless properly licensed and insured, and using or possessing dangerous
weapons. (See In re Jimi A. (1989) 209 Cal.App.3d 482, 488 [upholding
search condition for minor found to have committed battery in light of minor
having no parental supervision during late evening hours, minor’s admitted
substance abuse, and probation officer’s suspicion that minor was still
involved with drugs and/or alcohol].) In sum, we conclude that the search
condition is reasonably related to K.B.’s future criminality (Lent, supra, 15
Cal.3d at p. 486), and therefore we need not discuss the remaining elements
of the Lent analysis.
We turn now to K.B.’s constitutional overbreadth challenge to the
search condition. This argument is forfeited because it was not raised in the
juvenile court. Generally, a constitutional challenge to a probation condition
as overbroad can be raised for the first time on appeal only if it presents
“ ‘ “pure questions of law that can be resolved without reference to the
particular sentencing record developed in the trial court.” ’ ” (Sheena K.,
supra, 40 Cal.4th at p. 889.) K.B.’s constitutional argument concerning the
search condition is essentially a restatement of his reasonableness argument,
which relies on the sentencing record, and this forecloses K.B. from making
an overbreadth challenge for the first time on appeal. (Cesar G., supra, 74
Cal.App.5th at p. 1047.)
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C. School Grounds Condition
The probation department recommended a condition prohibiting K.B.
from being on a school campus unless he was enrolled or had the permission
of school authorities. K.B. raised no objection to this condition in the juvenile
court.
K.B. argues the school grounds condition is unreasonable under Lent
and unconstitutionally overbroad on its face. He asks us to strike or modify
it, but he does not propose any modification in his opening brief.
K.B. forfeited his reasonableness challenge to this condition by failing
to raise it below. (People v. McCullough (2013) 56 Cal.4th 589, 594.)
Anticipating that we would conclude the challenge had been forfeited, K.B.
argues that he received ineffective assistance of counsel, because the Lent
criteria were clearly met and a reasonably competent attorney would have
objected to the condition. We reject that argument, because it rests on the
false premise that the school grounds condition is unreasonable under Lent.
The very case on which K.B. relies for his reasonableness argument, D.G.,
holds otherwise.
In D.G., the juvenile court imposed a probation condition that
prohibited the appellant from coming within 150 feet of any school campus
other than his own. (D.G., supra, 187 Cal.App.4th at p. 50.) The Court of
Appeal concluded that the condition was unreasonable under Lent, and
modified it 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.” (Id. at pp. 53, 57.) As
modified, the condition was consistent with state law prohibiting outsiders
from being on school grounds unless they have registered with the school
principal (Pen. Code, § 627.2), and therefore “justifiable under Lent as
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proscribing otherwise criminal conduct.” (D.G. at p. 56.) The only difference
between the modified condition in D.G. and the condition imposed on K.B. is
that K.B.’s condition does not include an exception if he is accompanied by a
parent or guardian, but K.B. does not contend that the difference has any
significance for the Lent analysis.4
K.B.’s failure to object to the school grounds condition in the juvenile
court does not forfeit his facial constitutional challenge (Sheena K., supra, 40
Cal.4th at p. 888-889), but that challenge fails on the merits. To successfully
raise a facial constitutional challenge to a probation condition, K.B. must
show that the condition “cannot have any valid application,” regardless of the
facts of the case. (People v. Patton (2019) 41 Cal.App.5th 934, 946.) He does
not make the required showing in his conclusory one-paragraph argument,
which consists of a general statement of the law and the unsupported
assertion that the condition is not narrowly tailored to promote a compelling
state interest. In addition, K.B.’s attempt to argue facial overbreadth is
undercut by his suggestion that a school grounds condition might be
appropriate if his battery of his girlfriend had occurred at a school, and by his
extensive reliance on D.G., where, as we noted above, the Court of Appeal
4 In a footnote in his reply brief, K.B. writes, “One can envision [K.B.]
going to a sporting event with a parent, guardian, or responsible adult to
watch a friend or sibling compete or go to a school play,” and states that “[a]t
the least” the school grounds condition should be modified to allow K.B. to be
on school grounds if he is “accompanied by a parent or guardian or
responsible adult.” We need not address this issue. (See Provost v. Regents of
University of California (2011) 201 Cal.App.4th 1289, 1295 [“[W]e will not
address arguments raised for the first time in the reply brief”]; Sabi v.
Sterling (2010) 183 Cal.App.4th 916, 947 [“Footnotes are not the appropriate
vehicle for stating contentions on appeal”].) In any event, we have no reason
to doubt that K.B. could obtain permission from school authorities to attend
such activities in the appropriate circumstances.
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modified a school grounds condition to be virtually identical to the condition
imposed here. (D.G., supra, 187 Cal.App.4th at p. 57.)
DISPOSITION
The challenged order is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Mayfield, J.*
A163150. People v. K.B.
* Judge of the Mendocino County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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