Filed 2/20/24 In re A.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.R., a Person Coming Under the 

Juvenile Court Law.

 H051036

 (Santa Clara County

 Super. Ct. No. 23JV45995A)

THE PEOPLE,

Plaintiff and Respondent,

v.

A.R.,

Defendant and Appellant.

Minor A.R. became a ward of the juvenile court for committing acts constituting 

second degree robbery (Pen. Code, § 211) and assault by means of force likely to produce 

great bodily injury (Pen. Code, § 245, subd. (a)(4)), with enhancements for personal 

infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). The juvenile court 

granted A.R. probation subject to electronic monitoring and enumerated conditions. 

Upon our independent review of the record under People v. Wende (1979) 25 Cal.3d 436 

(Wende), the parties at our request addressed whether the condition requiring A.R. and 

his parents to “participate in a counseling or education program as determined by the 

Probation Officer” is an overbroad delegation of judicial authority. Finding that it is, we 
2

reverse and remand the matter to the juvenile court with directions to either strike or 

modify the condition.

I. BACKGROUND

A. The Wardship Petition

In March 2023, the Santa Clara County District Attorney filed a juvenile wardship 

petition under Welfare and Institutions Code section 6021alleging that A.R. came within 

the juvenile court’s jurisdiction for committing second degree robbery (Pen. Code, § 211) 

and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, 

subd. (a)(4)). As to both counts, it was alleged that A.R. personally inflicted great bodily 

injury (Pen. Code, § 12022.7, subd. (a)).

B. The Offenses

According to the evidence presented at the jurisdictional hearing, A.R. and two 

other minors walked into a Safeway store’s liquor aisle. The store’s security guard,

questioning whether they were old enough to be in the aisle, asked A.R. to leave the 

bottle he was holding. A brawl ensued. The security guard tried to pepper-spray A.R. 

and deploy his baton. The minors took the baton and struck the security guard multiple 

times before fleeing. 

C. The Jurisdictional Finding and Disposition

The juvenile court found true all allegations and enhancements, found the offenses 

to be felonies, and assumed jurisdiction over A.R. under section 602. 

At the dispositional hearing, the juvenile court deemed A.R. a ward of the court 

but granted him probation and returned him to the custody of his parents, subject to 60 

days of electronic monitoring and several conditions as recommended by the Santa Clara 

County Probation Department. Of these, condition number 14 required “[t]hat said minor 

1 Unspecified statutory references are to the Welfare and Institutions Code.
3

and his parents participate in a counseling or education program as determined by the 

Probation Officer.” Condition 15 required “[t]hat said minor and his parents be ordered 

to enroll in and complete a drug/alcohol counseling program as determined by the 

Probation Officer.” Condition 6 required “[t]hat the minor attend school, vocational 

training, or maintain full-time employment if in compliance with the mandates of the 

California Education Code.” 

A.R. timely appealed, and his appointed counsel submitted a Wende brief.

II. DISCUSSION

We requested supplemental briefing from the parties on whether condition number 

14 is an unconstitutional delegation of judicial authority. The Attorney General does not 

defend the condition on its merits and argues only that A.R. forfeited any claim that 

condition 14 is constitutionally infirm by failing to raise the issue in the juvenile court. 

Because the breadth of the court’s delegation represents a pure issue of law (see In re 

Sheena K. (2007) 40 Cal.4th 875 (Sheena K.)), we reach the merits of A.R.’s claim. 

A. Forfeiture

The Attorney General argues that Sheena K. merely affords us the discretion to 

consider A.R.’s forfeited claim and that there is no reason to do so here. But the Attorney 

General misreads Sheena K., where the California Supreme Court found that the 

“defendant’s constitutional challenge to her probation condition was not forfeited despite 

her failure to object” in the trial court on the ground that it was facially unconstitutional. 

(Sheena K., supra, 40 Cal.4th at p. 879, italics added.) It was not as a matter of discretion 

that the court reached the merits of Sheena K.’s facial challenge: the court made explicit 

that its extension in People v. Welch (1993) 5 Cal.4th 228 of the forfeiture rule to claims 

that probation conditions are unreasonable did not apply “to a facial constitutional 

challenge made on the ground of vagueness and overbreadth.” (Sheena K., supra, at 

pp. 881–882, 885 fn. 5; cf. id. at p. 887, fn. 7 [noting the “general” rule that “forfeiture of 

a claim not raised in the trial court by a party has not precluded review of the claim by an 
4

appellate court in the exercise of that court’s discretion”].) Although Sheena K.

recognized that some constitutional challenges do not present pure questions of law 

without reference to the sentencing record (id. at p. 889), the breadth of the delegation

here is a textual matter that, like a vagueness or overbreadth challenge, requires no 

resolution of the specifics of A.R.’s circumstances. Thus, although A.R. did not object to 

any of the probation conditions at sentencing, a claim that a probation condition is an 

unconstitutional delegation of judicial authority is not forfeited by his failure to object 

below. (Id. at p. 887; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143)2

B. Propriety of the Probation Condition

Condition number 14 requires that A.R. and his parents “participate in a 

counseling or education program as determined by the Probation Officer.” Although the 

condition echoes in part the language of section 729.2, subdivision (b), we find it an 

overbroad delegation of judicial authority and reverse.

Section 729.2 mandates various conditions when the juvenile court grants 

probation, “except in any case in which the court makes a finding and states on the record 

its reasons that that condition would be inappropriate.” Without this finding, unless the 

minor is also a dependent of the court or subject to a pending dependency petition, the 

court must “[r]equire the parents or guardian . . . to participate with the minor in a 

counseling or education program, including, but not limited to, parent education and 

parenting programs operated by community colleges, school districts, or other 

appropriate agencies designated by the court or the probation department . . . .” (§ 729.2, 

subd. (b).) Based on the wording of condition 14, we infer that this condition, 

recommended by the probation department, was intended to ensure the juvenile court’s 

compliance with section 729.2. We do not, however, read section 729.2 as either 

2 Moreover, on Wende review, our role is to review the entire record to determine 

whether the appeal is frivolous or whether there are any arguable issues, “not merely 

accepting counsel’s assessment of the case.” (Wende, supra, 25 Cal.3d. at p. 441.) 
5

requiring or authorizing a condition that merely recites the text of subdivision (b)—

without designating the type of counseling or education required—or that expressly 

delegates to the probation department authority to determine what counseling or 

education A.R. or his parents must submit to. 

Section 729.2, subdivision (b) ensures that absent contrary findings, (1) the minor 

will participate in counseling or education the court deems appropriate; (2) the parents or 

guardians retaining custody or care of the minor will participate in those programs as 

needed; and (3) they may also have to participate in “parent education and parenting 

programs” to support the minor’s rehabilitation.3 The juvenile court’s authority to 

prescribe those programs (or to find them unnecessary) is broad. (See § 730, subd. (b) 

[“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”].)

But under section 729.2, subdivision (b), it is the juvenile court—not the probation 

department—on which the Legislature has imposed the duty to determine what type of 

counseling or education program would further a minor’s rehabilitation. And despite the 

juvenile court’s inherently broad authority to impose conditions on a ward, “[u]nder the 

separation of powers doctrine (Cal. Const., art. III, § 3), judicial powers may not be 

delegated to nonjudicial officers. [Citation.] While the probation officer may properly 

specify the details necessary to effectuate the court’s probation conditions, it is the court's 

duty to determine the nature of the requirements imposed on the probationer. [Citation.]” 

3 When passing Senate Bill No. 1275 (1989–1990 Reg. Sess.), which enacted 

section 729.2, the Legislature stated that its purpose was in part to “mandate[] parental 

involvement, drug and alcohol counseling, structured probation programs monitored for 

compliance, and early judicial intervention with delinquent youths,” and “to promote the 

positive development of juveniles by emphasizing the enforcement of school attendance 

laws and the establishment of special education and socialization programs designed for 

the individual needs of the minor.” (Stats. 1989, ch. 1117, § 1(b), p. 4113.)
6

(People v. Smith (2022) 79 Cal.App.5th 897, 902 (Smith).) “[T]he court’s order cannot 

be entirely open-ended.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1359.) 

The juvenile court here specifically ordered the minor and his parents participate 

in “drug/alcohol counseling” (condition 15) and that the minor “attend school, vocational 

training,” or otherwise comply “with the mandates of the California Education Code” 

(condition 6). It went further, however, in imposing condition 14. Although 

section 729.2, subdivision (b) expressly allows delegation to the probation department of

the authority to “designate[]” an “appropriate agenc[y]” for the type of counseling or 

education program the court has required, condition 14 delegates even the authority to 

decide the antecedent question of what counseling or education the minor or the parents 

need. But determining A.R.’s rehabilitative needs—what programs are “ ‘reasonably 

related to the crime of which the defendant was convicted or to future criminality’ ” (In 

re Ricardo P. (2019) 7 Cal.5th 1113, 1115) such that a failure to comply might forfeit his 

freedom from institutional custody—is fundamentally a judicial function. (In re Pedro 

Q. (1989) 209 Cal.App.3d 1368, 1372 [“The probation officer may recommend probation 

terms, but it is the court’s responsibility to tailor the conditions specifically to each 

minor.”].)

In distinguishing the duty to decide the counseling or education program needed 

from the authority to designate a provider for the court-ordered program in section 729.2, 

we follow long-established canons of statutory construction. We presume that the 

Legislature intended no violation of the separation of powers doctrine when delegating 

authority to designate a certain provider to a probation officer under section 729.2, 

subdivision (b), and thus did not authorize the probation department to unconstitutionally 

usurp judicial dispositional authority to delegate what kind of counseling or education the 

minor needs. (See, e.g., Smith, supra, 79 Cal.App.5th at p. 903 [deeming 

unconstitutional a probation condition “entrusting the decision whether to mandate 

residential treatment to the probation officer”]; People v. Falsetta (1999) 21 Cal.4th 903, 
7

912–913 [“courts will presume a statute is constitutional unless its unconstitutionality 

clearly, positively, and unmistakably appears; all presumptions and intendments favor its 

validity”].) We also “understand a qualifying phrase to apply only to the word or phrase 

that immediately precedes it and not to other words or phrases that appear earlier in a list 

or series.” (Wilde v. City of Dunsmuir (2020) 9 Cal.5th 1105, 1127 [applying “last 

antecedent rule” to the taxation exemption from referendum Cal. Const., art. II, § 9, 

subd. (a)].) Here, “designated by . . . the probation department” modifies “agenc[y]” and 

not “program.” (§ 729.2, subd. (b).)

Moreover, even if we were to read condition 14 to be effectively narrowed by the 

other conditions of probation mandating counseling programs and A.R.’s school 

attendance, condition 14 would be at best redundant. And because the record is unclear 

whether the juvenile court intended condition 14 to serve a discrete purpose under 

section 729.2 beyond conditions 15 or 6, we find remand is appropriate so that the 

juvenile court may in the first instance determine whether to strike or modify the 

condition to specify the type of counseling or education required.

III. DISPOSITION

The dispositional order is reversed and the matter is remanded with directions for 

the juvenile court to either strike condition number 14 or modify it to specify what type 

of counseling or education program the court intends minor and his parents to attend. 
LIE, J.

WE CONCUR:

_____________________________________

GREENWOOD, P.J.

_____________________________________

GROVER, J.

People v. A.R.

H051036