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Filed 9/3/20 In re M.J. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION THREE 

In re M.J., a Person Coming 

Under the Juvenile Court Law.

____________________________

THE PEOPLE, 

Plaintiff and Respondent, 

v.

M.J. 

Defendant and Appellant.

 A159263

 

 (City and County of San Francisco 

 Super. Ct. No. JW196236)

 

 

Appellant M.J. appeals from a disposition order following the 

juvenile court’s declaring him a ward of the court and placing him in 

the custody of probation. He challenges the probation condition that he 

“[p]articipate fully in any programs of counseling deemed appropriate 

by [his] probation officer which may include individual, group and 

family counseling as well as drug counseling, testing and treatment, or 

any other programs and/or services [he is] referred to by [his] probation 

officer” (hereinafter also referred to as the program requirement). 

Appellant contends the program requirement violates the 

constitutional separation of powers doctrine as it was an improper 

delegation of judicial authority to probation to determine in the first 

instance the programs and services he was required to attend. He also 
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raises an ineffective assistance of counsel argument for failure to object 

to the program requirement. We affirm. 

BACKGROUND

On October 30, 2019,1 the San Francisco County District 

Attorney filed a Welfare and Institutions Code section 602 petition

alleging the then 16-year-old appellant had committed acts constituting 

felony second-degree robbery (Pen. Code, § 211) and felony vandalism 

(Pen. Code, § 594, subd. (b)(1)). After a contested hearing on November 

21, the juvenile court found appellant had committed acts constituting 

felony second-degree robbery and misdemeanor vandalism.

On December 6, appellant appeared with counsel at the 

disposition hearing. The juvenile court declared appellant a ward of 

the court after finding that his welfare required removal from both his 

guardian and parents. Appellant was placed in the custody of 

probation, subject to a maximum commitment period of five years and 

four months with credit for time served of 39 days. 

While appellant was eligible for placement in a facility operated 

by the Department of Juvenile Justice, the juvenile court found an 

alternative “out-of-home” placement would best meet appellant’s needs 

if he took advantage of opportunities offered by such a placement. To 

that end, in its December 6 order, the juvenile court included the 

program requirement – that appellant was to “[p]articipate fully in any 

programs of counseling deemed appropriate by [his] probation officer 

which may include individual, group and family counseling as well as 

drug counseling, testing and treatment, or any other programs and/or 

services [he is] referred to by [his] probation officer.” The program 

1 All further events occurred in 2019.
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requirement was discussed at the hearing prior to issuance of the order 

and appellant’s counsel lodged no objection. 

Appellant timely appealed from the disposition order.

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DISCUSSION

Appellant challenges the program requirement on the ground 

that it violates the constitutional separation of powers doctrine as it 

was an improper delegation of judicial authority to probation to 

determine in the first instance the required programs and services. 

The parties agree, and we concur, that the claim may be raised for the 

first time on appeal despite the failure to object on that specific ground 

in the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) 

However, appellant’s contention is unavailing on the merits.

When a minor is “committed to the care, custody, and control of 

the probation officer,” as in this case, the juvenile 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).) “Flexibility is the hallmark of juvenile court law 

. . . [and] the juvenile court has long enjoyed great discretion in the 

2 The notice of appeal also mentions the November 21, 2019

jurisdictional findings and order. However, no separate appeal lies 

from the jurisdictional findings and order. (In re G.C. (2020) 8 Cal.5th

1119, 1126 [jurisdictional findings and order are reviewed on appeal 

from the dispositional order].) Further, appellant abandoned review of 

those findings and orders by failing to present any specific arguments 

addressing them in his appellate briefs. (Golighty v. Molina (2014) 229 

Cal.App.4th 1501, 1519 [appellate “ ‘review is limited to issues which 

have been adequately raised and briefed’ ”].) We therefore dismiss that 

appeal. 
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disposition of juvenile matters . . . .” (In re Greg F. (2012) 55 Cal.4th 

393, 411.) 

Here, the juvenile court reasonably determined the program 

requirement would assist in appellant’s rehabilitation. We give the 

challenged requirement “ ‘the meaning that would appear to a 

reasonable, objective reader’ ” in light of the authority granted by the 

juvenile court. (People v. Olguin (2008) 45 Cal.4th 375, 382.) When so 

viewed, we presume probation will choose programs and services

reasonably related to appellant’s rehabilitation and will not require 

attendance for arbitrary or capricious reasons. (People v. Stapleton

(2017) 9 Cal.App.5th 989, 996-997 [“[a] probation officer cannot issue 

directives that are not reasonable in light of the authority granted to 

the officer by the court”; “[t]he condition does not grant a probation 

officer the power to issue arbitrary or capricious directives that the 

court itself could not order”].) Accordingly, appellant’s claim of a

violation of the constitutional separation of powers doctrine based on 

an improper delegation of judicial authority fails.

Appellant’s related concern, regarding the scope of programs and 

services that probation may require him to attend, such as sex-offender 

counseling, mental health counseling, or graffiti abatement programs, 

is not properly before us. Because the scope of programs and services is 

one that cannot be resolved without a review of the juvenile court 

record, it does not present a pure question of law that can be raised for 

the first time on appeal. Instead, “ ‘ “traditional objection and waiver 

principles” ’ ” apply; appellant should have objected in order to “permit 

the [juvenile] court to consider, and if appropriate in the exercise of its 
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informed judgment, to effect a correction” in the scope of programs and 

services. (In re Sheena K., supra, 40 Cal.4th at p. 889.) 

Appellant also raises an ineffective assistance of counsel 

argument based on the failure to object to the program requirement in 

the juvenile court, which contention can be resolved “on the ground of 

lack of sufficient prejudice.” (Strickland v. Washington (1984) 466 U.S. 

668, 697.) This argument is not supported by the record, which does 

not contain anything that leads us to conclude it is reasonably likely 

the juvenile court would have stricken or modified the program 

requirement had counsel made an objection on the grounds asserted on 

appeal. An attempt by the juvenile court to narrowly limit probation’s 

authority to both the type and specific programs and services to aid in 

appellant’s rehabilitation “would pose serious practical difficulties.” 

(People v. Penoli (1996) 46 Cal.App.4th 298, 308.) The juvenile court is 

not “equipped to micromanage” both the type and specific programs and 

services as “it lacks the ability to remain appraised of currently 

available programs [and services] and, more fundamentally, because 

entry into a particular program [or service] may depend on mercurial 

questions of timing and availability.” (Ibid.) 

Finally, we note that if appellant disagrees with probation’s 

decision regarding his participation in any specific program or service, 

he can bring his concerns to the juvenile court’s attention at a review 

hearing. Alternatively, and at any time, he or his guardian, parents, 

attorney, or an interested person may file a Welfare and Institutions 

Code section 778 petition to modify the disposition order. 
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DISPOSITION

The appeal from the November 21, 2019 jurisdictional findings 

and order is dismissed. The December 6, 2019 disposition order is 

affirmed.
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_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Jackson, J.

People v. M.J./A159263