Filed 5/2/14 In re O.C. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

IN RE O.C., a Person Coming Under the 

Juvenile Court Law.

 H039645

 (Monterey County

 Super. Ct. No. J47047)

THE PEOPLE,

Plaintiff and Respondent,

v.

O.C.,

Defendant and Appellant.

I. INTRODUCTION

The minor, O.C., appeals from the juvenile court’s Welfare and Institutions Code 

section 602, subdivision (a) dispositional order, which followed the minor’s admission to 

misdemeanor battery (Pen. Code, § 242). The juvenile court placed the minor on 

probation with conditions that included: (1) a requirement that the minor not change his 

place of residence from Monterey County or leave the state without permission of the 

court or the probation officer; (2) a requirement that the minor not associate with any 

individuals known to be disapproved of by his parents or guardians; and (3) an 8:00 p.m. 

curfew.
2

On appeal, the minor challenges the three probation conditions listed above, 

claiming they are overbroad and/or vague. We will modify the challenged probation 

conditions and affirm the judgment as modified.1

II. BACKGROUND

A. Charged Offense2

On the evening of February 15, 2013, officers responded to the apartment where 

the minor lived with his mother, sister, and grandmother. The mother stated that she and 

the minor had argued. During the argument, the minor had grabbed her by the arm and 

slammed her down into a chair. The minor had previously shown violent behavior in the 

home—he had punched holes in the wall and damaged the front door. The mother 

believed that the minor suffered from an emotional disturbance. She did not feel safe 

with him in the home.

The minor admitted that he had shoved his mother and pushed her into a chair, but 

he claimed that his mother had shoved him first. He also claimed that during a separate 

incident, his grandmother had struck him with a broken wooden chair leg. His mother 

and grandmother had called him names, angering him. He had knocked down his 

grandmother’s television and stabbed a butter knife into a table.

B. Petition, Admission, and Disposition

On March 12, 2013, the District Attorney filed a second amended Welfare and 

Institutions Code section 602, subdivision (a) petition alleging four counts of 

 

1

In a letter dated April 1, 2014, appellate counsel stated that the minor’s appeal is 

moot because the minor is no longer on juvenile probation and therefore not subject to 

the challenged probation conditions. Appellate counsel did not request dismissal of the 

appeal, but she did request that the case be taken off oral argument. We are exercising 

our discretion to reach the merits of the issues on appeal for the guidance of the trial court 

because the issues are likely to recur. (See In re R.V. (2009) 171 Cal.App.4th 239, 245-

246; In re Sheena K. (2007) 40 Cal.4th 875, 879.)

2

The facts of the charged offense are taken from the probation report.
3

misdemeanor battery (Pen. Code, § 242). The minor admitted one count of the petition 

on April 23, 2013. The District Attorney moved to dismiss the other three counts.

At the May 8, 2013 disposition hearing, the juvenile court declared the minor a 

ward of the court. It found that continuing to allow him to remain in the home of his 

parent was contrary to his welfare, that reasonable efforts had been made to prevent 

removal, and that emergency conditions required his immediate removal from the home. 

The court found that removal was in the minor’s best interest. It committed the minor to 

the care, custody, and control of the probation department for an out-of-home placement. 

The juvenile court also adopted all of the recommended terms and conditions of 

probation. Those conditions included the following:

“4. You are not to change your place of residence from Monterey County or leave 

this state without permission of the Court or Probation Officer. Prior to change of 

residence, you are to notify your Probation Officer of the new address. Report each new 

address and phone number to your Probation Officer within 24 hours.”

“13. You are not to associate with any individuals known to be disapproved of by 

your parents or guardians. You shall not associate/communicate with any individuals 

identified by your Probation Officer as a threat to your successful completion of 

probation. You are not to associate with any individuals known by you to be on 

Probation or Parole (adult or juvenile).”

“20. You are to obey 8:00 P.M. curfew. You are not to be out of your home 

between the above listed times without approval of your Probation Officer.”

C. Post-Disposition

The minor filed a notice of appeal on May 10, 2013.

According to a probation department memorandum dated June 18, 2013, the minor 

was still housed at juvenile hall. He had not been accepted into two programs and had 

referrals pending at two other programs.
4

The probation officer filed another memorandum on July 3, 2013. At that point, 

five programs had found the minor not appropriate. Two other programs had waiting 

lists of eight weeks or more. Because of these circumstances, the Interagency Placement 

Committee had proposed that the minor be placed “on Wraparound.” Two meetings had 

been held and, after a third meeting scheduled for July 9, 2013, the minor would be 

released “to Wraparound.”

On July 10, 2013, the probation officer filed a memorandum stating that the minor 

had been released from juvenile hall into the Wraparound program. On July 11, 2013, 

the juvenile court held a review hearing and indicated that the permanent plan was for the 

minor to remain at home.

III. DISCUSSION

The minor challenges the three above-listed probation conditions as 

unconstitutionally overbroad and/or vague.

A. General Legal Principles

Before addressing the minor’s specific contentions, we review some of the legal

principles guiding our review.

1. Probation Conditions for Minors

“The California Legislature has given trial courts broad discretion to devise 

appropriate conditions of probation, so long as they are intended to promote the 

‘reformation and rehabilitation’ of the probationer. (Pen. Code, § 1203.1, subd. (j).)” 

(In re Luis F. (2009) 177 Cal.App.4th 176, 188.) The juvenile court “may make any 

reasonable orders for the care, supervision, custody, conduct, maintenance, and support 

of the minor or nonminor, including medical treatment, subject to further order of the 

court.” (Welf. & Inst. Code, § 727, subd. (a)(1).) “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.” (Welf. 
5

& Inst. Code, § 730, subd. (b).) In fashioning conditions of probation, the juvenile court 

considers “ ‘not only the circumstances of the crime but also the minor’s entire social 

history.’ ” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500, disapproved on other 

grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983-984, fn. 13.)

“[Welfare and Institutions Code s]ection 730 grants courts broad discretion in 

establishing conditions of probation in juvenile cases. [Citation.] ‘[T]he power of the 

juvenile court is even broader than that of a criminal court.’ ” (In re Christopher M.

(2005) 127 Cal.App.4th 684, 692, disapproved on another ground in People v. Gonzales

(2013) 56 Cal.4th 353, 375, fn. 6; see also In re Antonio R. (2000) 78 Cal.App.4th 937, 

941 [“juvenile conditions may be broader than those pertaining to adult offenders”].) 

“In distinguishing between the permissible exercise of discretion in probationary 

sentencing by the juvenile court and that allowed in ‘adult’ court, [our State Supreme 

Court has] advised that, ‘[a]lthough the goal of both types of probation is the 

rehabilitation of the offender, “[j]uvenile probation is not, as with an adult, an act of 

leniency in lieu of statutory punishment. . . .” [¶] In light of this difference, a condition 

of probation that would be unconstitutional or otherwise improper for an adult 

probationer may be permissible for a minor under the supervision of the juvenile court.’ ” 

(In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)

2. Overbreadth and Vagueness

“A probation condition that imposes limitations on a person’s constitutional rights 

must closely tailor those limitations to the purpose of the condition to avoid being 

invalidated as unconstitutionally overbroad. [Citation.]” (Sheena K., supra, 40 Cal.4th at 

p. 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. [Citation.]” (Ibid.)
6

B. Change of Residence Condition

The minor first challenges probation condition No. 4, which provides: “You are 

not to change your place of residence from Monterey County or leave this state without 

permission of the Court or Probation Officer. Prior to change of residence, you are to 

notify your Probation Officer of the new address. Report each new address and phone 

number to your Probation Officer within 24 hours.”

The minor contends the first sentence of this condition is unconstitutionally 

overbroad. He argues that the condition limits his right to travel and freedom of 

association “without narrowly tailoring it to the purposes of reformation and 

rehabilitation.” He contends the condition gives the probation officer “excessive power 

to proscribe where [the minor] may live” and that the condition “effectively impinges on 

his custodial parent’s constitutional rights as well.” The minor requests we strike the 

condition.3

1. Forfeiture

The Attorney General contends that the minor may not raise this issue on appeal 

because it “is not merely one concerning the general applicability of a condition of 

probation, but is instead an issue inexorably bound up in the facts of this particular case.”

The forfeiture rule does not apply when a minor challenges a probation condition 

“as facially vague and overbroad,” at least insofar as the claim “presents an asserted error 

that is a pure question of law, easily remediable on appeal by modification of the 

condition.” (Sheena K., supra, 40 Cal.4th at p. 888.) However, this exception “does not 

apply in every case in which a probation condition is challenged on a constitutional 

 

3

The California Supreme Court is considering a challenge to a similar probation 

condition in People v. Schaeffer (2012) 208 Cal.App.4th 1, rev. granted Oct. 31, 2012, 

S205260 (Schaeffer). The condition in Schaeffer required the defendant to “ ‘[r]eside at a 

residence approved by the Probation Officer and not move without his/her prior 

approval.’ ” (Id. at p. 4.)
7

ground” because “ ‘there may be circumstances that do not present “pure questions of law 

that can be resolved without reference to the particular sentencing record developed in 

the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver 

principles encourage development of the record and a proper exercise of discretion in the 

trial court.” [Citation.]’ ” (Id. at p. 889.)

In his reply brief, the minor reiterates that he is only challenging the probation 

condition “on its face” and requests this court consider his claim. Having reviewed the 

minor’s briefing, we agree that he makes a purely facial challenge, without reference to 

the record, and thus find that his claim is not forfeited.

2. Analysis

In claiming neither the juvenile court nor the probation officer should have the 

ability to restrict his choice of residence, the minor relies primarily on People v. Bauer

(1989) 211 Cal.App.3d 937 (Bauer). In Bauer, the court struck an adult’s probation 

condition requiring that his “residence be subject to his probation officer’s approval.” 

(Id. at p. 943.) The Bauer court first held that the probation condition could not stand 

because there was nothing in the record “suggesting in any way that appellant’s home 

life . . . contributed to the crime of which he was convicted or is reasonably related to 

future criminality” and “and because residing with one’s parents relates to conduct not in 

itself criminal.” (Id. at p. 944, fn. omitted; see People v. Lent (1975) 15 Cal.3d 481, 486.)

The Bauer court also found that the probation condition was “all the more 

disturbing” because it impinged on the defendant’s right to travel and freedom of 

association. (Bauer, supra, 211 Cal.App.3d at p. 944.) “Rather than being narrowly 

tailored to interfere as little as possible with these important rights, the restriction is 

extremely broad. The condition gives the probation officer the discretionary power, for 

example, to forbid appellant from living with or near his parents—that is, the power to 

banish him.” (Ibid.)
8

Unlike the Bauer condition, the condition here does not potentially require the 

minor to leave his family home, as it merely requires approval of a change of residence.

There is no risk of banishment. Further, this condition is closely tailored to its purpose. 

When a minor is placed on probation, the probation officer must know where he or she is 

residing and must have some degree of control over the minor’s residence in order to 

properly supervise and aid in his or her rehabilitation. Particularly in a case like this, 

where the minor’s ultimate placement was subject to very specific requirements (i.e., 

Wraparound services), it is also necessary for the juvenile court to approve a change of 

residence to ensure that the new residence is appropriate for the minor’s rehabilitation.

The minor further claims that this probation condition is improper because it does 

not provide a meaningful standard for determining whether a change of residence is 

appropriate. The minor relies on People v. O’Neil (2008) 165 Cal.App.4th 1351 

(O’Neil), where a probation condition ordered the defendant not to associate “ ‘with any 

person, as designated by your probation officer.’ ” (Id. at p. 1354.) The First District 

Court of Appeal held that the condition was flawed because there were “no limits on 

those persons whom the probation officer may prohibit defendant from associating with.” 

(Id. at p. 1357.) As the condition did not provide “a meaningful standard,” the court 

instructed the trial court to either strike the condition or rewrite it “to provide the 

necessary specificity.” (Id. at pp. 1357, 1359.)

Here, it is true that the residence condition did not contain any type of standard for 

determining whether a change of residence should be approved. However, whereas the 

O’Neill court was concerned that the probation officer could impose arbitrary restrictions, 

here the probation condition requires the approval of either the probation officer or the 

court. We believe the minor’s concerns are addressed by the fact that the minor may seek 

court approval for any change of residence, if the probation officer withholds his or her 

permission for a requested move.
9

Finally, we address the minor’s claim that the change-of-residence condition is 

overbroad because it infringes on his parents’ ability to change residences. While this is 

true, we believe the condition is reasonably necessary to ensure the minor’s compliance 

with the terms of his probation. The challenged probation condition only requires 

permission from the court or probation officer for an out-of-county or out-of-state move; 

neither the minor nor his parents are required to get prior permission for a move within 

Monterey County. However, for clarity, we will modify the condition to specify it does 

not prohibit the minor’s parents themselves from moving without the court’s prior 

approval.

For the above reasons, we will modify probation condition No. 4 to provide: “You 

are not to change your place of residence from Monterey County or leave this state 

without permission of the Court or Probation Officer. Prior to change of residence, you 

are to notify your Probation Officer of the new address. Report each new address and 

phone number to your Probation Officer within 24 hours. Nothing in this provision shall 

prohibit minor’s parents from changing their residence without prior approval of the

Court or Probation Officer; however, prior approval is required for a change in the 

minor’s residence.”

C. Association Condition

The minor next challenges probation condition No. 13, which provides: “You are 

not to associate with any individuals known to be disapproved of by your parents or 

guardians. You shall not associate/communicate with any individuals identified by your 

Probation Officer as a threat to your successful completion of probation. You are not to 

associate with any individuals known by you to be on Probation or Parole (adult or 

juvenile).”

The minor challenges this condition as both unconstitutionally overbroad and 

vague. His claim concerns the first two sentences of the condition. The minor 

acknowledges that the first sentence refers to “ ‘individuals known to be disapproved of 
10

by your parent our guardians,’ ” but asserts that the condition should specify to whom the 

disapproved individuals must be known. He makes a similar argument concerning the 

second sentence’s use of the phrase “individuals identified by your Probation Officer.”

The minor relies on In re H.C. (2009) 175 Cal.App.4th 1067, a decision of this 

court in which a juvenile challenged a probation condition requiring that he “ ‘not 

associate with any known probationer, parolee, or gang member.’ ” (Id. at p. 1071.) In 

that case, this court reasoned that as the condition was phrased, “The identity of a person 

who has knowledge is unknown because it is in the passive voice.” (Ibid.) This court 

modified the condition to provide: “ ‘You H.C. will not associate with any person known 

to you to be on probation, on parole or a member of a criminal street gang.’ ” (Id. at 

p. 1072.)

The minor also relies on People v. Lopez (1998) 66 Cal.App.4th 615, where the 

defendant challenged a probation condition that prohibited him from wearing or 

possessing “ ‘any item of identified gang clothing’ ” and from displaying “ ‘any gang 

insignia, moniker, or other markings of gang significance on his/her person or property as 

may be identified by Law Enforcement or the Probation Officer.’ ” (Id. at p. 622.) The 

court noted that as phrased, “Lopez was subject to being charged with an unwitting 

violation of the condition because nothing in it required the police or the probation office 

to apprise Lopez of the ‘identified’ items of gang dress before he was charged with a 

violation.” (Id. at p. 634.) The court remanded the matter so the trial court could

reconsider “whether the phrase ‘identified by law enforcement or the probation officer’

should remain” in the condition. (Id. at p. 638.)

The Attorney General has no objection to the proposed modifications. Therefore 

we will order probation condition No. 13 modified as the minor requests, to provide: 

“You are not to associate with any individuals known by you to be disapproved of by 

your parents or guardians. You shall not associate/communicate with any individuals 

identified to you by your Probation Officer as a threat to your successful completion of 
11

probation. You are not to associate with any individuals known by you to be on 

Probation or Parole (adult or juvenile).”

D. Curfew Condition

Finally, the minor challenges probation condition No. 20, which provides: “You 

are to obey 8:00 P.M. curfew. You are not to be out of your home between the above 

listed times without approval of your Probation Officer.”

The minor contends that this condition is unconstitutionally vague “because it 

does not tell [him] when his curfew ends each morning.” The minor suggests the 

probation condition could be modified to include an ending time of 6:00 a.m. He notes 

that Welfare and Institutions Code section 729.2, subdivision (c) requires juvenile 

probation conditions include the following: “Require the minor to be at his or her legal 

residence between the hours of 10:00 p.m. and 6:00 a.m. unless the minor is accompanied 

by his or her parent or parents, legal guardian or other adult person having the legal care 

or custody of the minor.”

The Attorney General agrees that the probation condition is vague and suggests we 

remand the matter so the juvenile court can set an ending time. The Attorney General 

does not specifically object to our modification of the condition to include a 6:00 a.m. 

ending time. In the interests of judicial economy and with the guidance of Welfare and 

Institutions Code section 729.2, we will modify the condition as requested by the minor 

to provide as follows: “You are to obey 8:00 P.M. curfew. You are not to be out of your 

home between 8:00 p.m. and 6:00 a.m. without approval of your Probation Officer.”

IV. DISPOSITION

Probation condition No. 4 is modified to provide: “You are not to change your 

place of residence from Monterey County or leave this state without permission of the 

Court or Probation Officer. Prior to change of residence, you are to notify your Probation 

Officer of the new address. Report each new address and phone number to your 
12

Probation Officer within 24 hours. Nothing in this provision shall prohibit minor’s 

parents from changing their residence without prior approval of the Court or Probation 

Officer; however, prior approval is required for a change in the minor’s residence.”

Probation condition No. 13 is modified to provide: “You are not to associate with 

any individuals known by you to be disapproved of by your parents or guardians. You 

shall not associate/communicate with any individuals identified to you by your Probation 

Officer as a threat to your successful completion of probation. You are not to associate 

with any individuals known by you to be on Probation or Parole (adult or juvenile).”

Probation condition No. 20 is modified to provide as follows: “You are to obey 

8:00 P.M. curfew. You are not to be out of your home between 8:00 p.m. and 6:00 a.m. 

without approval of your Probation Officer.”

With these modifications, the judgment is affirmed.

___________________________________________

BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

__________________________

GROVER, J.