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In Re Zachary F., A Person Coming Under the Juvenile Court v. Zachary F

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO


December 28, 2010

IN RE ZACHARY F., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ZACHARY F., DEFENDANT AND APPELLANT.

(Contra Costa County Super. Ct. No. J1000358)

The opinion of the court was delivered by: Richman, J.

In re Zachary F.

CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Zachary F. was making $200 a month selling marijuana-laced cookies to students at the high school he attended until school and law enforcement authorities learned of this illegal entrepreneurship and closed down his operation. Zachary admitted the allegation of a delinquency petition that he possessed marijuana for sale (Health & Saf. Code, § 11359). The juvenile court declared him a ward, and placed him on probation, in the custody of a relative. The sole issue on this timely appeal is the propriety of one of the conditions of Zachary's probation.

In the course of going through the conditions of probation, the court stated: "You are not to possess--there's a mandatory firearm prohibition 12021(e). You are not allowed to have any gun in your possession at all until age 30." The caption for the issue as framed by Zachary in his opening brief states: "The imposition of a firearms ban in this matter was unauthorized because [Penal Code] section 12021, subdivision (e) cannot be imposed following an admission to Health and Safety Code section 11359." Zachary then reasons: "The language of Penal Code section 12021, subdivision (e) . . . provides for the mandatory prohibition against the ownership, possession, custody or control of firearms until the age of 30 years for a juvenile offender who is adjudged a ward . . . , but only in the event that certain enumerated allegations are sustained in the juvenile court. The prohibition imposed by the statute was not triggered by appellant's admission to a violation of section 11359 of the Health and Safety Code." Thus, he concludes, his admission "does not provide a statutory basis for the imposition of a firearms ban pursuant to Penal Code section 12021, subdivision (e)."*fn1

In reply, the Attorney General agrees that Health and Safety Code section 11359 is not one of the offenses covered by Penal Code section 12021, subdivision (e), and thus "the juvenile court erroneously stated that Penal Code section 12021, subdivision (e), created a 'mandatory firearm prohibition.' " But this concession is nullified by his argument that the issue was not preserved for review because Zachary did not object to the condition when it was imposed by the juvenile court.

Since 1993 it has been settled that failure to object to the reasonableness of adult probation conditions at the time they are imposed waives that issue for purposes of review. (People v. Welch (1993) 5 Cal.4th 228, 236-237.) That principle is now also applied to juvenile proceedings. (See In re Sheena K. (2007) 40 Cal.4th 875, 883, fn. 4 and authorities cited.) The waiver principle was further expanded to "discretionary sentencing choices" in adult proceedings. (People v. Scott (1994) 9 Cal.4th 331, 353.)

The Supreme Court has recognized a " 'narrow exception' to the forfeiture rule made for a so-called unauthorized sentence' or a sentence entered in excess of jurisdiction. [Citations.] A sentence is said to be unauthorized if it cannot 'lawfully be imposed under any circumstance in the particular case' . . . ." (In re Sheena K., supra, 40 Cal.4th 875, 886-887.) A sentence is not "unauthorized" if it is permitted by law but was "imposed in a procedurally or factually flawed manner." (People v. Scott, supra, 9 Cal.4th 331, 354.)

Although the Attorney General's case for waiver has obvious force, we conclude the merits are not foreclosed by the ward's failure to object at the time the condition was imposed. What the juvenile court did here is too close to being "unauthorized" for comfort.

As the Attorney General concedes, Penal Code section 12021, subdivision (e) establishes a substantive offense--the possession of a firearm by a person who has been convicted of a predicate offense. It is certainly not, as the juvenile court erroneously believed, a mandatory prohibition, either for adults or for wards. And it is undisputed that Zachary has never been adjudicated to have committed a predicate offense. But the most troubling aspect of the condition is that it appears to assume jurisdiction of the juvenile court far beyond the governing statutory limits. (See Welf. & Inst. Code, § 607 [juvenile court jurisdiction ends when ward reaches 21, but can extend to 25 if ward is in the Division of Juvenile Facilities or a state hospital].)

Zachary's claim is in essence that the juvenile court mistakenly believed it was obligated to impose the prohibition on his possession of a firearm as a probation condition. This is a pure question of law. If Zachary's claim has merit, it is easily remedied on appeal by our striking or modifying what is asserted to be the offending probation condition. Accordingly, the policies supporting the forfeiture doctrine--procedural efficiency and conservation of judicial resources--do not apply and no additional evidentiary development is required to address the claim. Finally, the presumed utility of an objection may be questioned in light of the juvenile's court belief that it was mandatory. In light of these circumstances, we decline to deem the claim forfeited.

We recently noted: " 'The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents' [citation], thereby occupying a 'unique role . . . in caring for the minor's well being.' [Citation.] In keeping with this role, [Welfare and Institutions Code ]section 730, subdivision (b), provides that the court may impose 'any and all reasonable [probation] 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.' [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. '[E]ven where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults . . . ." ' [Citation.] This is because juveniles are deemed to be 'more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed.' [Citation.] Thus, ' " 'a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " ' [Citations.]." (In re Victor L. (2010) 182 Cal.App.4th 902, 909-910.) The statutory grant of authority has been construed to vest the juvenile court with very broad discretion the exercise of which will be reversed only for manifest abuse. (E.g., In re Ramon M. (2009) 178 Cal.App.4th 665, 676; Alex O. v. Superior Court (2009) 174 Cal.App.4th 1176, 1180-1181.)

We have no doubt that this power could embrace a condition prohibiting a juvenile probationer from possessing a firearm, which is itself a crime under Penal Code section 12101, subdivision (a). If it can be done for adults (see People v. Freitas (2009) 179 Cal.App.4th 747, 751), there appears to be no reason it cannot be done with a juvenile court's greater power over wards. (In re Sheena K., supra, 40 Cal.4th 875, 889; In re Victor L., supra, 182 Cal.App.4th 902, 910.) Whether the juvenile court is inclined to exercise its discretion to fashion a replacement condition can only be answered by that court. Remand for the exercise of previously unsuspected discretion is appropriate. (People v. Rodriguez (1998) 17 Cal.4th 253, 257.)

The dispositional order is modified by deleting the condition of probation that the ward Zachary F. shall "not possess a firearm until the age of 30 years." As so modified, the order is affirmed. The cause is remanded to the juvenile court for the sole purpose of permitting the court, if it be so advised, the opportunity to exercise its discretion to frame a new condition.

We concur: Kline, P.J. Lambden, J.


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