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Alex O. v. Superior Court of San Diego County

May 27, 2009

ALEX O., PETITIONER,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, JUVENILE DIVISION, RESPONDENT;
THE PEOPLE, REAL PARTY IN INTEREST.



(Super. Ct. No. 220327).

The opinion of the court was delivered by: Benke, Acting P. J.

Certified for publication 6/10/09 (order attached)

In this extraordinary proceeding, a juvenile, who is a United States citizen, lives with his mother in Mexico and admitted smuggling marijuana into the United States. As a condition of probation, the juvenile court ordered that the juvenile not enter the United States except to attend school, work, or visit his family. In addition, the juvenile was ordered to notify his probation officer before he enters the country.

In large measure the conditions imposed on the juvenile are not valid. The court could not expressly banish the juvenile from the United States. Such an express condition would plainly be overbroad and not reasonably related to the juvenile's underlying smuggling offense. For the same reasons the juvenile court could not impose limits on the purposes for which the juvenile could enter the United States, which limits, taken together with the juvenile's living arrangements, effectively banished the juvenile from the United States. However, because any border crossing by the juvenile is closely related to the juvenile's underlying smuggling offense, the court could reasonably require that the juvenile give his probation officer notice of when he enters the United States so that the probation officer could take steps to make certain the juvenile does not engage in further smuggling.

FACTUAL AND PROCEDURAL BACKGROUND

Alex O. is a United States citizen. On August 19, 2008, 17-year-old Alex attempted to enter the United States from Mexico at the San Ysidro Port of Entry. He handed a Customs and Border Patrol Officer his identification card, and stated he had been in Mexico to see his mother who lives there. Upon noticing Alex was wearing two oversized shirts, the officer escorted him to the supervisor's office where Alex consented to a search. The officer discovered four packages taped to the front and back of Alex's legs. The packages contained 2.2 kilograms of marijuana. Alex told the officer he bought four pounds of marijuana for $400 in Mexico. He said he was going to take the marijuana to a relative's home, conceal it, and use it during the next few months.

On September 9, while at the East Mesa Juvenile Detention Facility, Alex agreed to be interviewed. He reported a friend offered to pay him $400 to transport marijuana across the border. Although he knew it was illegal, he explained he accepted the job because his mother was having difficulty paying the rent and buying other necessities and his father does not give his mother enough money to support the family. He admitted he taped the packages of marijuana to his legs and took a taxi to the border, carrying a cellular telephone to contact his friend after he crossed the border.

Before his arrest, Alex lived in Mexico with his mother, who is undocumented and cannot enter the United States. Alex had been living with his mother in Mexico for approximately three and a half years. He has a very good relationship with his mother. Conversely, Alex's father lives in Rialto; Alex has never lived with his father and he has a poor relationship with him. At the time of his arrest, Alex was not enrolled in school nor gainfully employed. He reported he helped his uncle with his landscaping business, but was paid very little money. Alex admitted to transporting marijuana across the border in exchange for payment of $400. He agreed to the illegal act because his mother was having financial difficulties and his father does not give his mother enough money to support the family.

Alex admitted possessing marijuana for sale. The court declared Alex a ward on September 17, 2008, committed him to Camp Barrett for 365 days and stayed the commitment. In apparent response to our holding in In re James C. (2008) 165 Cal.App.4th 1198, 1203 (James C.), in which we held that the juvenile court could not simply banish a juvenile United States citizen to Mexico where he lived with his grandparents, the juvenile court instead placed Alex on probation on the condition Alex return to his mother's residence in Tijuana, Mexico and not enter the United States except to attend school, meet with his probation officer, complete the terms of probation, seek or maintain employment, or visit his father and family members. The court further ordered Alex to advise his probation officer, in advance, when he is going to cross the border.

Alex filed this petition, arguing the court abused its discretion by imposing probation conditions restricting his entry into the United States. Alex asserts: (1) the probation conditions are unreasonable because they are not reasonably related to the crime he committed or to future criminality; and (2) the probation conditions are unconstitutional because they are not narrowly tailored to serve the rehabilitative goals of probation. We issued an order to show cause.

DISCUSSION

I.

We review a juvenile court's imposition of a probation condition for an abuse of discretion. (People v. Carabajal (1995) 10 Cal.4th 1114, 1121.) As we noted in In re Christopher M. (2005) 127 Cal.App.4th 684, 692-693:

"The juvenile court is statutorily authorized to place a ward on probation and '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.' [Citation.] [Welfare and Institutions Code] [s]section 730 grants courts broad discretion in establishing conditions of probation in ...


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