PROCEEDINGS in prohibition after the juvenile court imposed a Fourth Amendment waiver as a condition of informal supervision. Carolyn M. Ciaetti, Judge. Petition granted. (San Diego County Super. Ct. No. J222124).
The opinion of the court was delivered by: Huffman, Acting P. J.
CERTIFIED FOR PUBLICATION
In this proceeding, we determine that the juvenile court does not have the authority to impose a Fourth Amendment waiver as a condition of informal supervision under Welfare and Institutions Code*fn1 sections 654 and 654.2. Accordingly, we grant Derick B.'s petition for a writ of prohibition to vacate the Fourth Amendment waiver imposed as a condition of his informal supervision under section 654.2.*fn2
FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2009, the People filed a section 602 petition alleging that on November 8, 2008, 17-year-old Derick had unlawfully driven a vehicle while under the influence of an alcoholic beverage and a drug and under their combined influence (Veh. Code, § 23152, subd. (a); count 1; a misdemeanor), had unlawfully driven a vehicle while having a blood alcohol content of.08 percent or more (Veh. Code, § 23152, subd. (b); count 2; a misdemeanor), had driven a vehicle while being a person under the age of 21 who had a blood alcohol content of.05 percent or more (Veh. Code, § 23140, subd. (a); count 3; an infraction), and had driven a vehicle while being a person under the age of 21 who knowingly possessed and carried an alcoholic beverage within the vehicle (Veh. Code, § 23224, subd. (a); count 4; a misdemeanor). After being arraigned, Derick denied all counts and the court set a hearing date to consider a motion to continue the proceedings under section 654 et seq.
On May 1, 2009, Derick filed his motion to continue the proceedings and place him on informal supervision under sections 654 and 654.2, which was opposed by the People. On May 14, 2009, the juvenile court granted the motion under section 654.2 to continue the proceedings for six months with Derick and his parent/guardian's consent, ordered Derick to comply with a program of supervision,*fn3 and set the matter for a later hearing on whether a Fourth Amendment waiver as a condition of informal supervision could also be imposed.
On May 26, 2009, after considering opposing points and authorities on the issue and hearing oral argument, the juvenile court ruled it had the authority to impose a Fourth Amendment waiver condition for section 654.2 informal supervision in light of the allegations that both alcohol and marijuana were involved in this case. The judge specifically stated she was mindful that she did not have "unfettered discretion... in setting forth the terms of informal supervision under... section 654.2. However, under the circumstances for the reasons previously noted in this proceeding, as well as at the time that the request was granted, the court believes it is appropriate in the rehabilitation of Derick... through... section 654.2 to impose a Fourth Amendment waiver. However, because [section] 654.2 is a voluntary contract if he is not agreeable to that provision, then I will set aside the contract." When Derick's counsel responded that Derick did not want to set aside the contract, but objected to the Fourth Amendment waiver, the court overruled the objection and imposed the waiver as a condition of Derick's informal supervision under section 654.2.
On July 7, 2009, Derick filed a petition for writ of prohibition with this court to bar the juvenile court from imposing the Fourth Amendment waiver condition. After receiving an informal response to the petition, we issued an order to show cause why the relief Derick requests should not be granted, noting that absent objection, the informal response would be deemed the return to the petition, a reply could be filed by August 14, 2009, and the parties could request oral argument by August 20, 2009. No objection, reply or request for oral argument has been filed.
Derick claims the juvenile court exceeded its jurisdiction by unlawfully imposing a Fourth Amendment waiver as a condition of his informal supervision under section 654.2. He specifically argues that the plain language and stated philosophy and purpose of sections 654 and 654.2, which essentially provide for a pre-plea diversion type program to keep minors out of the juvenile justice system and avoid true findings of criminal culpability, when contrasted with other statutory provisions for juvenile offenders such as section 790 et seq., which provides for a post-plea diversion program that mandates a Fourth Amendment waiver as a condition in every grant of deferred entry of judgment (§ 794), supports the conclusion that the Legislature did not intend the court to have authority to impose a Fourth Amendment waiver where the minor is placed on informal supervision under sections 654 and 654.2 without entering a plea. Derick analogizes his situation to the adult diversion program in Penal Code section 1000 et seq. and a line of authority (Frederick v. Justice Court (1975) 47 Cal.App.3d 687 (Frederick), Terry v. Superior Court (1999) 73 Cal.App.4th 661 (Terry), U.S. v. Scott (9th Cir. 2006) 450 F.3d 863), which has overturned Fourth Amendment waivers because they were not mentioned as a condition the court could impose under that statutory program.
The People take issue with Derick's claim, asserting the imposition of a Fourth Amendment waiver falls within the juvenile court's broad discretion to impose reasonable conditions of probation on juveniles who "are more in need of guidance and supervision than adults" and "[whose] constitutional rights are more circumscribed." (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) The People distinguish Frederick, supra, 47 Cal.App.3d 687, on grounds it involved an adult offender and a statute that imposed specific conditions as a requirement of diversion as compared to the statutory provisions here that do not impose a specific condition as a requirement for informal supervision, but only the delineation of "specific programs of supervision" to address the needs of the minor. The People argue that the Fourth Amendment waiver imposed in this case was proper because it was not overly intrusive, it was tailored to meet the needs of a minor who had been driving under the influence of alcohol and who had a pipe in the car, which smelled of marijuana, and it would deter the minor from carrying illegal items in the car and help him avoid peer pressure.
As we explain, even recognizing the broad discretion of the juvenile court to impose reasonable probationary conditions upon a minor who comes under its jurisdiction, we determine the court does not have the authority to impose a Fourth Amendment waiver as a condition of informal supervision under sections 654 and 654.2.
A. The Pertinent Statutory Framework
The Legislature has mandated that minors who fall within the jurisdiction of the juvenile court as a result of delinquent behavior "shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter." (§ 202, subd. (b); see In re S. S. (1995) 37 Cal.App.4th 543, 550.) Consistent with this mandate, the Legislature enacted section 654, which this court has explained "authorizes an informal supervision program for a minor who in the opinion of the probation officer is, or will probably soon be, within the jurisdiction of the juvenile court. The purpose of the informal supervision program is to provide assistance and services to the minor and the minor's family to 'adjust the situation' and avoid further involvement in the formal juvenile criminal justice system.... [¶] In 1989 ...