Filed 12/13/13 In re Stephan D . CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 STEPHAN D ., a Person Coming Under the Juvenile Court Law.

THE PEO PLE, Plaintiff and Respondent,

v. STEPHAN D ., Defendant and Appellant. F067367 (Super. Ct. No. JW112369

- 00 )



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Referee.
R. Randall Riccardo , und er 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, Ward A. Campbell and Sean M. McCoy, Deputy Attorney s General, for Plaintiff and Respondent.

- ooOoo

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* Before Cornell, Acting P.J., Detjen, J., and Oakley, J.† † Judge of the Superior Court of Madera County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.2

Th e court found that appellant, Stephan D ., was a person described in Welfare and
Institution s C ode section 602 1 after it sustained allegations charging him with sexual battery (Pen. Code, § 243.4, subd. (e )(1)). On appeal, appellant challenges the juvenile

court ’s failure to place him on non

- wardship probation pursuan t to section 725, subdivision (a ) (hereafter section 725(a)) and he contends that one of his conditions of probation is unconstitutionally va g u e and overbroad

. We find that the challenged probation condition does not meet certain statu tory requirements and modify it so it does. As modified, we affirm the judgment.
FACTS The Jurisdiction Hearing At appellant’s jurisdiction hearing, 16

- year

- ol d L.R. testified that she attended Foothill High School in Kern County. On or about February 2 1 , 2013, she was walking

to her sixth period class when appellant walked up b ehind her , reached between her left
arm and body with his right arm , and squeezed he r left brea s t with his right hand through her clothing. L.R. turned around to try to hit appellant a nd he moved back and started laughing. L.R. told appellant it was not funny and that what he did was not right. Appellant did not apologize or say anythi ng else. L.R. and appellant were good friends and had previously hugged each other side to
side about five times , but appellant had never touched her like that before. L.R. was upset and crying as she continued walking to her class. Campus Police Of

ficer Gilbert Valdez testified that after sixth period he spoke
with L.R. about the incident and that L.R. was upset and crying at the time. Valdez spoke with appellant t he day after the incident

. Valdez advised appellant of his Miranda 2 rights

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 Miranda v. Arizona (1966) 384 U.S. 436.3

and told him he was accused of sexual battery. Appellant told the officer he accidentally
hit L.R. on the breast with his right hand when she walked past him and he raised his
hand to give her a hug. L.R. walked away mad as he tried to tell her he was sorry. App ellant denied walking up behind L.R. , reaching between her left arm and body , and squeezing her breast. Appellan t testified he was talking with his friend K. w hen L.R. walked between
them . They greeted each other and as appellant raised his right arm t o give L.R. a side hug, the back of his right hand hit L.R.’s left breast. Appellant told L.R. he was sorry and she got angry and asked appellant why he did that. Appellant again stated he was sorry

as L.R

. walked away. Appellant did not intend to touch L.R. in a sexual way and he
denied that he was laugh ing when L.R. turned around and asked him what he was doing.
At the conclu sion o f the hearing the court found the sexual ba ttery charge true. The Social Study Report and Disposition Hearing Appella nt ’s social study report indic a tes that during a probation department interview he stated he did not mean to touch the victim inappropriately and that he apologized to her. Appellant reported that he volunteered at San Joaquin Hospital working in patient care delivering food and water to patients and on Saturdays and Sundays he work ed at the concession stand at a soccer park. Appellant denied any substance abuse and any gang affiliation.
The report further indicates that a fter being expelled from Footh ill High School for
the instant offense , appellant was enrolled in Auburn Community School

. Although he has maintained goo d attendance with satisfactory grades, he had two “behavioral steps”
and his negative behavior at school included walk ing out of clas s without permission and being verbally disruptive during class

. However, for the most part he was respectful. His legal guardians did not report any major issues at home and stated that he wa s respectful.4

Child P rotective S ervices reports indicated t hat appellant’s mother had a history of
substance abuse. S h e had seven substantiated referrals, five for gene ral neglect and two
for caretaker abs ence / incap a city

. On Janu a ry 10, 2007, appellant was m a de a dependent child of the court. After failing five placements , appellant was placed with his current
caretakers on November 9, 2009. In 2012 his caretakers received legal guardianship of appellan t. Ap pellant was report ed t o ha v e had behavioral and emotional problems
th rough out his time in protective cus tody , but was report ed to have been doing well in the
home of his guardians with no major issues. Appellant had never had any contact with
his father whose whereabouts were unknown.
U n der C ase A sse ss ment , appellant’s risk level was assessed as low and his current risk factors were i dentified as S chool S tatus, S kills, and A tti tu des and B ehavior s

. The report noted that appellant showed no respect for the victim when he touched her on the breast and that he denied intentionally touching the victim. Thu s, in order to hold appellant accountable for his behavior the report recommended that the court adjudge appellant a ward of the court, order him to complete 40 hours in the Juvenile Court Work Program , and order him to complete sexual offender counseling.
DISCUSSION The Court’s Decision to Make Appellant a Ward of the Court
A t appellant’s disposition hearing, a fter defense counsel argu ed appellant was a “good kid” growing up under difficult circumstances and that the battery occurred accidentally, the f

ollowing colloquy occur r ed:

“ [ DEFENSE COUNSEL ] :

... I can’t understand why we’re even here, but this C ourt is well aware of the discretion it has under [section] 725. [ 3 ] And this C ourt is well aware of the discretion that it has under

3 S ection 725 provides: “After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows:5

[section] 654.2. [ 4 ] I would ask the Court to utilize that code section to continue this case.

“ If the Court feels that he needs counseling, he is ready, willing and able to do whatever counseling the Court would impose; and really, under that code section, whatever the Co urt would impose, and make this matter right with the Court.

“ THE COURT: Well, thank you , [defense counsel]

. Luckily I was here during the [adjudication hearing] as well. And I heard the evidence, and I made my determination as to what happened, so I d on’t have to rethink or reimagine it in any fashion.

“ I certainly don’t think [appellant] is a terrible monster. I think he’s a dumb teenage boy that he did so m ethin g he wasn’t supposed to do and that is the be all and end all of it. I don’t think this makes him some sort of sexual predator or terrible offender. Again, I thi nk it makes him a dumb teenage boy. And there have been lots of dumb teenage boys over the years who have done similar things. So, no, I don’t think he needs to go to se x ual offend er counseling, but nor do I think we go back to [section ] 654 or any other program at this point. We are where we are. ” (Italics and fns. added.)

“(a) If the court has found that the minor is a person described by Section ... 602, by reason of the commis sion of an offense other than any of the offenses set forth in Section 654.3, it may, without adjudging the minor a ward of the court , place the minor on probation, under the supervision of the probation officer, for a p eriod not to exceed six months.... If the minor fails to comply with the conditions of probation imposed, the court may order and adjudge the minor to be a ward of the court. [¶] (b) If the court has found that the minor is a person described by Section ... 602, it may order and adjudge the m inor to be a ward of the court.” (Italics added.)

4 Section 654.2, subdivision (a) allows the court to place a juvenile on non

- wardship probation as follows: “If a petition has been filed by the prosecuting attorney to declare a minor a ward of the cou rt under Section 602, the court may, without adjudging the minor a ward of the court and with the consent of the minor and the minor’s parents or guardian, continue any hearing on a petition for six months and order the minor to participate in a program of supervision as set forth in Section 654.... If the minor successfully completes the program of supervision, the court shall order the petition be dismissed. If the minor has not successfully completed the program of supervision, proceedings on the petitio n shall proceed no later than 12 months from the date the petition was filed.”6

The court then adjudged appellant a ward of the court, placed him on probation for a period of time not t o exceed his 21st birthday, and released him to the custody of his guardian. Appellant cites the italicized portion of the above quotation to contend the juve n ile

court did not consider placing appellant on non

- wardship probation pursuant to section
725 (a) because it was unaware of its discretion to do so pursuant to that section. He
further contends the matter should be remanded because if the court had been aware of its discretion pursuant to section 725(a) it likely would have placed him on non

- wards hip probation. In his reply brief appellant contends the court abused its discretion when it declared appellant a ward of the court and plac ed him on probation as a ward of the court

. We reject these contentions.
Here , defense counsel alerted the court to its discretion to place appellant on non

wardship probation when he told the court that it was “well aware of the discretion it ha s under [section] 725.” Further, the court clearly responded to defense counsel’s request
for non

- wardship probation purs uant to section 725 (a) when it told defense counsel that they were not going back to section 654 “ or any other program .” (Italics added.) Thus, the record refutes appellant’s contention that the court was unaware it had discretion to place him on non

- war dship probation pursuant to section 725 (a)

. Moreover, w e review the juvenile court ’ s commitment decision for abuse of
discretion

. It is the duty of the juvenile court, not the reviewing court, to determine the most appropriate placement fo r the minor. T he juvenile court’ s determination will be reversed only if it has acted beyond the scope of reason. ( In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) “‘An appellate court will not lightly substitute its decision for that rendered by the juvenile cou rt. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to7

support them. [Citations.] In determining whether there was substantial evidence to
suppo rt the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. [Citations.]’ [Citation.]” ( In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) “The purpose of the juvenile court is to protect both the minor under its jurisdiction and the public, and to pr eserve and strengthen the minor’ s family ties whenever possible. [Citations.] Central to the juvenile court ’ s mission are the care, treatment, guidance, and rehabilitation of the deli nquent juvenile. [Citation.] ” ( In re
Walter P. (2009) 170 Cal.App.4th 95, 99 , fn. omitted .) In support of his claim that the court abused its discretion when it made him a
ward of the court , appellant cites numerous positive circumstances including the following: appellant did not have a prior criminal history, he had good school attendance and satisfactory grades, his offense did not involve violence , and there is no indication that he had previously engaged in that type of inappropriate conduct. Howe ver, t he court could reasonably find from appellant’s continued denial that he touched the victim inappropriately and his denial that he laughed at her when she turned aroun d to confront
him that he had not accepted responsibility for his unlawful conduct. Further, despite having been suspended from Foothill High School and having the underl y ing petition pending , at his new school appellant was involved in incidents during which he walked out of class without permission and was verbally disruptive during c lass. The court could reasonably find from these circumstances that appellant would benefit for a longer period of probation supervision tha n the maximum of six months available for a non

- wardship probation pursuant to section 725(a) because it would impr ess upon him the seriousness
of his unlawful conduct and hold him accountable for it. Thus, we conclude that th e
court did not abuse its discretion when it denied appellant’s request to be placed on non

wardship probation purs uant to section 725 (a) and ma de him a ward of the court.8

The Challenged Probation Condition As one condition of probation , the court ordered appellant “ to be home on all nights by 10:00 o’clock. ” Appellant contends this condition is vague a nd overbroad an d
should be modified to incl ude the statutory langu a ge of section 72 9 .2. We agree that this probation condition should be modified to in c l u de the statutory language of section
729.2. Section 729.2, in pertinent part, provides:

“ If a minor is found to be a person described in Secti on ... 602 and the court does not remove the minor from the physical custody of the parent or guardian, the court as a condition of probation

... shall :

“ ¶

... ¶ “(c) Require the minor to be at his or her legal residence between the hours of 10:00 p.m. a nd 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. ” (Italics added.)

“ Ordinarily, the term ‘ shall ’ is interpreted as mandatory and not permissi ve. Indeed, ‘ the presumption [is] that the word “ shall ” in a statute is ordinarily deemed mandatory and “ may ” permi ssive.’ [Citation.] ” ( P eople v. Standish (2006) 38 Cal.4th 858, 869 .) The curfew condition imposed by the court did not conform with the mandatory curfew condition required by section 729.2 subdivision (c) because it did not include the ending time of appellant’s curfew or state that appellant may be out of his residence during the curfew if he is accompanied by one of his legal guardians. Accordingly, we modify this condition so it does.9 DISPOSITION
The judgment is modified so that appellant’s curfew pro bation condition read s as follows: “Stephan D. is to be at hi s legal residence between the hours of 10:00 p.m. and
6:00 a.m. unless Step han D. is accompanied by his legal guardian or other adult person having the legal care or custody of Stephan D.” As modified, the judgment is affirmed

.