Filed 11/15/13 In re Makayla B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

In re MAKAYLA B., a Person Coming Under 

the Juvenile Court Law.

THE PEOPLE, 

Plaintiff and Respondent,

v.

MAKAYLA B., 

Defendant and Appellant.

F066102

(Super. Ct. No. 10CEJ600044-2)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. James A. 

Kelley, Jr., Judge.

Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Todd Marshall and Raymond L. 

Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Gomes, Acting P.J., Detjen, J. and Peña, J.
2.

Makayla B., a minor at the time of the underlying proceedings, appeals the 

imposition of a probation condition which restricts her from leaving the State of 

California without written permission from her probation officer. The condition was 

imposed by the Fresno County Superior Court, sitting as a juvenile court, after it found 

Makayla had violated section 242 of the Penal Code (battery) and adjudged her a ward of 

the court. She now contends the travel restriction is an unreasonable condition of 

probation and thus constitutes an abuse of discretion by the juvenile court, or 

alternatively, that the condition is unconstitutionally overbroad as a matter of law. We 

conclude the first ground for appeal has been forfeited and the latter argument has no 

merit. Accordingly, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On August 14, 2012, the Fresno County District Attorney filed a juvenile wardship 

petition under Welfare and Institutions Code section 602, subdivision (a), alleging 

Makayla had committed misdemeanor battery (Pen. Code, § 242). The evidence adduced 

at a jurisdictional hearing on October 18, 2012, which included Makayla’s own 

testimony, showed she intentionally struck a convenience store owner in the face while 

inside of his store. The juvenile court found the allegations against Makayla to be true 

and sustained the petition. 

A disposition hearing was held on November 8, 2012. Makayla was declared a 

ward of the court and received probation without any custody time in juvenile hall. After 

stating its findings, the court asked the probation officer to recite all requested conditions 

of probation. The record indicates that the probation officer proceeded to read a portion

of the probation department’s written report and recommendations out loud, then paused 

and said, “Your honor, I think we need to add the provision that she not leave the State of 

California.” The court replied, “All right.” The recommended condition was then stated 
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as follows: “You shall not leave the State of California without written consent of your 

probation officer.” 

No objections were made during the November 8, 2012 hearing, which concluded 

with the juvenile court adopting all recommended conditions of probation as part of its 

dispositional order. Makayla’s timely notice of appeal was filed the same day. 

DISCUSSION

Challenges to the Conditions of Probation on Lent1 Grounds Have Been Forfeited

Juvenile courts have broad discretion to formulate the terms and conditions of 

probation for a minor who has been adjudged a ward of the court. (John L. v. Superior 

Court (2004) 33 Cal.4th 158, 183; In re P.A. (2012) 211 Cal.App.4th 23, 33.) “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. & Inst. Code, § 730, subd. (b).) As such, challenges to 

conditions of probation in a juvenile case are ordinarily reviewed under the abuse of 

discretion standard. (In re Walter P. (2009) 170 Cal.App.4th 95, 100.) 

To establish an abuse of discretion, a condition of probation must be shown to be 

unreasonable to the extent that 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.) However, our Supreme Court has held that failure to 

timely object to a probation condition on Lent grounds forfeits the claim on appeal. 

(People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch).) This rule of forfeiture was 

first established in the context of adult criminal proceedings, but is equally applicable to 

minors who appear in juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 883, fn. 4 

(Sheena K.); In re Sean A. (2010) 191 Cal.App.4th 182, 190.) “In both adult and juvenile 

 

1 People v. Lent (1975) 15 Cal.3d 481 (Lent).
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cases, the time to object is at the pertinent hearing, not for the first time on appeal.” (In 

re Abdirahman S. (1997) 58 Cal.App.4th 963, 971.)

Pointing to the fact that the travel restriction was not originally set forth in the 

probation department’s written recommendations, Makayla claims she did not have a 

meaningful opportunity to object to the condition at the disposition hearing. Her 

argument is unpersuasive. Courts are not bound to accept the recommendations of a 

probation officer (Welch, supra, 5 Cal.4th at p. 234), and a minor has the ability to object 

to any particular condition of probation as improper or unwarranted. (In re Tyrell J.

(1994) 8 Cal.4th 68, 83, fn. 3, overruled on other grounds in In re Jaime P. (2006) 

40 Cal.4th 128, 130 (Tyrell J.).) “As discussed above, the juvenile court is vested with 

broad discretion to select appropriate probation conditions, and thus a minor has ample 

opportunity to influence the court’s decision.” (In re Abdirahman S., supra, 

58 Cal.App.4th at p. 971.) 

“A timely objection allows the court to modify or delete an allegedly unreasonable 

condition or to explain why it is necessary in the particular case.” (Welch, supra, 

5 Cal.4th at p. 235.) In this instance, Makayla’s counsel remained silent as the probation 

officer made verbal recommendations for her probation conditions and after the court 

stated its intention to accept same. The record before us does not suggest Makayla was 

deprived of the opportunity to object to the condition she now challenges, but merely that 

she failed to do so. Her Lent claims have thus been forfeited.

The Challenged Condition of Probation is Not Facially Unconstitutional 

Notwithstanding the discretionary authority afforded to juvenile courts, the 

legality of a probation condition may be attacked on constitutional grounds. “[W]here an 

otherwise valid condition impinges on constitutional rights, the condition must be 

carefully tailored and reasonably related to the compelling state interest in the minor’s 

reformation and rehabilitation.” (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1034.) 
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The constitutionality of a probation condition is reviewed de novo on appeal. (In re 

Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

Makayla contends the prohibition against interstate travel without written consent 

from her probation officer infringes upon the fundamental freedom of movement in a 

manner that is unconstitutionally overbroad. As with Lent claims, a constitutional right 

“may be waived either directly or by inaction.” (In re Spencer S. (2009) 176 Cal.App.4th 

1315, 1323, quoting People v. Workman (1953) 121 Cal.App.2d 533, 535.) To overcome 

the waiver rule, Makayla attempts to invoke an exception recognized by the California 

Supreme Court in Sheena K., supra, which permits constitutional challenges that present 

a “pure question of law” to be raised for the first time on appeal. (Sheena K., supra, 

40 Cal.4th at pp. 884, 887.) 

The exception upon which Makayla relies is more limited than she acknowledges 

in her briefs. It applies only to a “facial constitutional defect in the relevant probation 

condition,” such as vagueness or overbreadth, that is “capable of correction without 

reference to the particular sentencing record developed in the trial court.” (Sheena K., 

supra, 40 Cal.4th at p. 887.) Thus, as the Sheena K. opinion explicitly warns, not all 

claims of constitutional overbreadth can be raised for the first time on appeal, “since 

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. In those 

circumstances, [t]raditional objection and waiver principles encourage development of 

the record and a proper exercise of discretion in the trial court.” (Id. at p. 889, internal 

citations and quotation marks omitted.)

Makayla’s claims of constitutional overbreadth are entirely dependent upon the 

unique circumstances of her case and the facts developed in the juvenile court record. In 

other words, her arguments ultimately challenge the reasonableness of the probation 

condition as it applies to her, not its facial constitutionality. To assess the challenged 

condition as a pure question of law, our analysis is limited to determining whether it is 
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unconstitutionally overbroad in its literal wording, i.e., on its face. (Sheena K., supra, 40 

Cal.4th at p. 878, 885.) We find no such infirmity.

Obtaining advance permission for interstate travel appears to be a common 

requirement, as it is listed among other conditions of probation in a check-the-box format 

on the Judicial Council of California form that was used by the juvenile court for its 

dispositional order in this case. (Judicial Council Forms, form JV-665 (rev. Jan. 1, 2012), 

box #88 [“You shall not leave the State of California without written consent of your 

probation officer”].) The travel restriction is consistent with the mandatory conditions of 

probation under rule 5.790 of the California Rules of Court which require the minor to 

attend school and remain at his or her home residence between the hours of 10:00 p.m. 

and 6:00 a.m. unless accompanied by a parent, guardian, or adult custodian. (Cal. Rules 

of Court, rule 5.790(b)(1)(A) & (C).)

Furthermore, the permissible conditions of probation for juveniles are broader than 

those applicable to adult offenders. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941 

(Antonio R.).) “This is because juveniles are deemed to be more in need of guidance and 

supervision than adults, and because a minor’s constitutional rights are more 

circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of 

the parents. And a parent may curtail a child’s exercise of [their] constitutional rights....” 

(Ibid., citations and quotation marks omitted; see also, Tyrell J., supra, 8 Cal.4th at p. 81 

[“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.”].)

Requiring a minor to obtain written permission from their probation officer before 

leaving the borders of California preserves the freedom of movement and ability to 

engage in interstate travel, subject to the discretion of those who exercise the authority of 

the state as parens patriae. (See In re Frank V. (1991) 233 Cal.App.3d 1232, 1242-

1243.) It cannot be said that such a condition is unconstitutionally overbroad on its face 
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in the context of juvenile probation. “If we were to strike down the condition as facially 

overbroad, we would invite wholesale attack on the probation condition in every case,” 

regardless of the underlying circumstances which motivated the juvenile court to impose 

the restriction. (In re Victor L. (2010) 182 Cal.App.4th 902, 922.) 

The facial constitutionality of the challenged condition is further evidenced by the 

holdings of two cases cited in the parties’ briefs. In Antonio R., supra, the Fourth District 

found that the constitutional rights of a juvenile appellant who resided in Orange County 

were not impermissibly burdened by the imposition of a condition that prohibited him 

from entering Los Angeles County “unless accompanied by a parent or with prior 

permission from the probation officer.” (Antonio R., supra, 78 Cal.App.4th at p. 939.) 

Although the probation condition was more geographically restrictive than the one at 

issue here, the minor’s ability to travel with his parents or with written permission from 

his probation officer was considered a constitutional “safety valve” that adequately 

balanced the rights of the minor “with the rehabilitative purpose of probation.” (Id. at 

p. 942.)

The other analogous case is In re Daniel R. (2006) 144 Cal.App.4th 1 (Daniel R.), 

where a challenge was made to a probation condition that prohibited the juvenile 

probationer from travelling to Mexico under any circumstances. (Daniel R. supra, 

144 Cal.App.4th at p. 5.) The absolute ban on travel to the neighboring country was held 

to be unconstitutionally overbroad under the particular circumstances of the case. (Id. at 

pp. 3, 7-8.) However, the appellate court further held the constitutional defect could be 

cured – and was cured – by its modification of the condition to allow travel to Mexico if 

the minor obtained permission from his probation officer and was accompanied by his 

parents. (Id. at pp. 7-9.) 

In light of the foregoing authorities and our review of the record, we conclude 

Makayla has failed to establish any basis for reversal or modification of the juvenile 

court’s dispositional order. The probation condition which restricts her from leaving the 
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State of California without the written consent of her probation officer is not facially 

unconstitutional. All other challenges to the reasonableness of this condition were 

forfeited by her failure to interpose an objection during the proceedings below. 

DISPOSITION

The judgment is affirmed.