Filed 3/7/14 In re S.M. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION TWO

In re S.M., a Person Coming Under the 

Juvenile Court Law.

 B249293

 (Los Angeles County

 Super. Ct. No. KJ37945)

THE PEOPLE OF THE STATE OF 

CALIFORNIA,

Plaintiff and Respondent,

v.

S.M.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Geanene 

Yriarte, Judge. Affirmed as modified.

Mary Bernstein, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Lance E. Winters, 

Assistant Attorneys General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys

General, for Plaintiff and Respondent.
2

Appellant S.M. (minor) appeals from an order of the juvenile court placing her on 

informal probation for six months. She challenges the three drug related terms of her 

probation and contends that the juvenile court erred in relying on a hearsay statement in 

the probation report filed in a previous case. We agree that the condition requiring blood 

tests of minor was unauthorized, though we reject minor’s remaining contentions. We 

find the appeal is not moot, and we affirm the judgment as modified.

BACKGROUND

After a petition was filed pursuant to Welfare and Institutions Code section 602,

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alleging that minor had committed a misdemeanor battery while on school, hospital, or

park grounds, minor admitted the allegation. On May 7, 2013, without declaring the 

minor a ward of the juvenile court, the court placed minor on informal probation for six 

months as authorized by section 725, subdivision (a), and scheduled a progress hearing 

for November 5, 2013.

Among other conditions of probation, the juvenile court ordered minor to

“cooperate in a plan to control the abuse of alcohol, controlled substances, or poisons”; to

“submit to urinalysis and skin checks as directed by the probation officer to detect the use 

of narcotics and controlled substances”; and to “submit to testing of blood, breath, or 

urine to detect the use of alcohol, narcotics, controlled substances, or poisons whenever 

requested by any peace officer.”

Minor filed a timely notice of appeal.

DISCUSSION

I. Mootness

Respondent contends that minor’s appeal is moot, because the six-month 

probationary period has passed and the probation order was “set to expire by its own 

terms on November 5, 2013.” We agree that six months have elapsed since minor was 

placed on probation; however we are unable to find the probation order’s “own terms” 

 

1 All further statutory references are to the Welfare and Institutions Code, unless 

otherwise indicated.
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setting an automatic expiration date. The juvenile court scheduled a progress hearing for 

November 5, 2013, and ordered all parties to appear at that time. If minor violated any 

terms of probation during the meantime, the court retained the authority to adjudge minor 

a ward of the juvenile court. (§ 725, subd. (a).) Nevertheless, respondent has not sought 

to augment the record on appeal with the minutes of any date after entry of the order of 

May 7, 2013. Respondent has thus established only a possibility that the appeal is moot.

Although a minor has the right to appeal from an order for informal supervision

without wardship (In re Do Kyung K. (2001) 88 Cal.App.4th 583, 589), the short, sixmonth probationary period would almost always preclude appellate review if the appeal 

automatically became moot after that time had elapsed. Thus, the appellate court should 

not dismiss such an appeal as moot where the juvenile court has sustained a delinquency 

petition based on criminal conduct. (See In re Dana J. (1972) 26 Cal.App.3d 768, 771.) 

For this reason, and as respondent has failed to show otherwise, we will assume that the 

appeal is not moot, and discuss the merits.

II. Unauthorized blood and breath condition

Minor contends that ordering her to submit to blood and breath tests was 

unauthorized by law, and respondent agrees. Upon sustaining a petition under section 

602 and placing the minor on nonwardship probation at home, the juvenile court may not 

require the minor to undergo blood and breath tests. (In re P.A. (2012) 211 Cal.App.4th 

23, 35-36.) As that probationary condition was unauthorized here, it will be stricken.

III. Hearsay 

Minor contends that the juvenile court erred in considering a statement made by 

her mother (mother) to the probation officer in prior delinquency proceedings in which 

minor also admitted a misdemeanor battery offense. The April 2012 probation report in 

the prior case noted that according to mother, minor had previously been cited for 

possession of marijuana on school grounds.2

 

2 The juvenile court took judicial notice of the court file in case No. KJ37261 and 

expressly considered the marijuana possession. Defense counsel objected to the evidence

as a violation of double jeopardy, a claim that is not renewed here.
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There is no merit to minor’s contention, as she acknowledges that in determining a 

proper disposition, the juvenile court must consider any “relevant and material evidence 

that may be offered.” (§ 706.) And she concedes that the juvenile court may consider 

hearsay and other inadmissible evidence. (See In re Michael V. (1986) 178 Cal.App.3d 

159, 167-168, 170.)

Nevertheless, minor argues that mother’s statement was unreliable evidence of 

marijuana possession. She compares mother’s statement with the hearsay statement of an 

unidentified declarant in People v. Reed (1996) 13 Cal.4th 217. Minor’s comparison 

fails, as Reed involved an adult probation report erroneously admitted to prove that the 

defendant’s crime was a serious felony for purposes of a sentence enhancement. (See id.

at pp. 230-231.) Its application is limited to the holding that the hearsay statements of an 

unidentified declarant contained in a probation officer’s report are inadmissible for that 

purpose, unless they fall within a hearsay exception. (People v. Otto (2001) 26 Cal.4th 

200, 209.) This was not an adult sentencing and mother was not an unidentified 

declarant. Moreover, the Evidence Code is not generally applicable to a juvenile 

dispositional hearing. (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1842-1843.)

IV. Urine testing 

Minor contends that the juvenile court abused its discretion in ordering her to 

submit to urine tests.

Statutory authority expressly grants the juvenile court discretion to impose a 

condition requiring “the minor to submit to urine testing upon the request of a peace 

officer or probation officer for the purpose of determining the presence of alcohol or 

drugs.” (§ 729.3; see also In re Kacy S. (1998) 68 Cal.App.4th 704, 708 (Kacy S.).) “A 

juvenile court enjoys broad discretion to fashion conditions of probation for the purpose 

of rehabilitation and may even impose a condition of probation that would be 

unconstitutional or otherwise improper so long as it is tailored to specifically meet the 

needs of the juvenile. [Citation.] That discretion will not be disturbed in the absence of 

manifest abuse. [Citation.]” (In re Josh W. (1997) 55 Cal.App.4th 1, 5; see also In re 

Sheena K. (2007) 40 Cal.4th 875, 889.)
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To support her contention, minor cites the criteria for evaluating the 

reasonableness of adult parole conditions under the test adopted in People v. Lent (1975) 

15 Cal.3d 481 (Lent): “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 . . . .’ [Citation.]” (Id. at p. 486, quoting People v. 

Dominguez (1967) 256 Cal.App.2d 623, 627 (Dominguez).) That test has been applied in 

juvenile proceedings. (In re Josh W., supra, 55 Cal.App.4th at pp. 5-6.)

Minor contends that the urine testing condition fails the Lent test because the 

condition is not directly related to her offense. She relies on the construction given to the 

following quote from Dominguez by the dissent in Kacy S.: “‘If the condition of 

probation is not directly related to the crime, the condition may be invalidated.’ 

[Citation.]” (Kacy S., supra, 68 Cal.App.4th at p. 715 (dis. opn. of Blease, J.), quoting

Dominguez, supra, 256 Cal.App.2d at p. 628.) The dissent construed the Dominguez

language and the Lent test (because it was formulated from the criteria enunciated in 

Dominguez) as requiring the probation condition to be directly related to the current 

offense. (Kacy S., supra, at p. 715 (dis. opn. of Blease, J.).) Minor concludes from this 

that the urine testing condition was invalid because her offense was not drug related.

In Lent, the California Supreme Court did not cite the Dominguez language on 

which minor relies, nor did it hold that a probation condition is invalid if it is not related 

to the defendant’s crime, nor did it use the word “directly.” Minor construes the first 

criterion (“A condition of probation will not be held invalid unless it ‘(1) has no 

relationship to the crime of which the offender was convicted’”) as invalidating any 

probation condition that bears no relationship to the current offense. (Lent, supra, 15 

Cal.3d at p. 486.) Minor is apparently reading the Lent criteria in the disjunctive, so that 

any one of them would invalidate a probation condition.

The court expressly clarified that the test was in the conjunctive. (Lent, supra, 15 

Cal.3d at p. 486, fn 1.) The court later added that this meant that “all three prongs must 

be satisfied before a reviewing court will invalidate a probation term. [Citations.] As 
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such, even if a condition of probation has no relationship to the crime of which a 

defendant was convicted and involves conduct that is not itself criminal, the condition is 

valid as long as the condition is reasonably related to preventing future criminality.

[Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) Thus, the probation 

condition is not invalid solely because it is unrelated to minor’s offense. So long as the 

urine testing condition is reasonably related to future delinquency it should not be 

invalidated on appeal. (Kacy S., supra, 68 Cal.App.4th at pp. 709-710.)

Minor takes issue with the majority’s holding in Kacy S. that in general, testing 

minors for alcohol and drugs reasonably relates to future delinquency and rehabilitation, 

and thus the urine testing condition may be upheld even in cases where the minor has no 

history of drug or alcohol problems. (Kacy S., supra, 68 Cal.App.4th at pp. 709-710.)

Minor contends that Kacy S. should be rejected as wrongly decided because a drug

testing condition cannot be reasonably related to future criminality (the third Lent

criterion) without evidence that substance abuse played a role in the minor’s offense. We 

reject minor’s suggestion, as it results in a disjunctive construction in which the first 

criterion swallows the third, thus invalidating a probation condition solely because it is 

not related to the current crime.

Minor also contends that Kacy S. went too far in holding that there need be no 

history of drug or alcohol problems to justify a urine testing condition. This is not the 

occasion to decide whether the Kacy S. court went too far, as the juvenile court in this 

case properly considered the evidence of minor’s past marijuana possession on school 

grounds, which suggested a history of substance abuse. Thus, under the test minor would 

have us apply, the urine testing condition was “reasonably related to preventing future 

criminality” and therefore proper. (People v. Olguin, supra, 45 Cal.4th at p. 380; Lent, 

supra, 15 Cal.3d at p. 486.) We find no abuse of discretion.

V. Cooperation in plan to control substance abuse

Minor challenges the condition that she cooperate in a plan to control the abuse of 

alcohol, controlled substances, or poisons. She compares it to the psychiatric treatment 

ordered as a condition of adult probation in a case where there was no evidence of mental 
7

illness or a risk the defendant’s behavior would be repeated. (See In re Bushman (1970) 

1 Cal.3d 767, 777 (Bushman), disapproved on another point in Lent, supra, 15 Cal.3d at 

p. 486, fn. 1.)

Upon ordering nonwardship probation under section 725, subdivision (a), the

juvenile court may impose any reasonable conditions of probation, even if not expressly 

authorized by statute. (In re Trevor W. (2001) 88 Cal.App.4th 833, 838-839.) The

juvenile court’s broad discretion will not be disturbed in the absence of manifest abuse. 

(In re Josh W., supra, 55 Cal.App.4th at p. 5.) As juveniles are deemed to be more in 

need of guidance and supervision than adults, a condition of probation that is 

impermissible for an adult probationer would not necessarily be unreasonable for a 

minor. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) For this reason, minor’s 

comparison to Bushman is not helpful.

Moreover, minor’s comparison assumes that a plan to control substance abuse 

would necessarily include a drug treatment program. Minor provides no authority for 

that assumption, nor does she cite evidence in the record suggesting that her probation 

officer’s plan would include participation in drug treatment, as opposed to a class, a 

lecture, or an afternoon of reading. Minor does not contend that her past possession of 

marijuana on school grounds cannot justify attending a class or reading a pamphlet. 

Instead, minor argues once again that the evidence was insufficient to prove her past 

marijuana possession, and thus there is insufficient evidence to support a finding that 

substance abuse played a role in her offense. Based on that reason she concludes this 

probation condition was not reasonably related to future criminality. As we have found 

the evidence was properly considered by the court, we again reject minor’s premise and 

find no abuse of discretion.
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DISPOSITION

The words “blood” and “breath” are stricken from probation condition No. 24, so 

that as modified the condition requires minor to “submit to testing of urine to detect the 

use of alcohol, narcotics, controlled substances, or poisons whenever requested by any 

peace officer.” As so modified and in all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

BOREN

__________________________, J.

ASHMANN-GERST