Opinion
Sheena K., defendant, was convicted of misdemeanor battery and, pursuant to Welfare and Institutions Code section 602, was adjudicated a ward of the juvenile court. In its disposition, the juvenile court ordered that defendant be placed on probation subject to a variety of conditions, including that she “not associate with anyone disapproved of by probation.” Although defendant did not object in the juvenile court to any of the conditions of probation imposed, on appeal she contended that the probation condition restricting her association with other persons was vague and overbroad, violating her rights under the First and Fifth Amendments to the federal Constitution.
In declining to apply the doctrine of forfeiture on appeal and deciding minor’s constitutional claim notwithstanding her failure to object on that ground in the juvenile court, the Court of Appeal joined a conflict that exists among the Courts of Appeal with respect to the applicability of that doctrine to challenges made upon constitutional grounds to a condition of probation. Having concluded on the merits that the probation condition imposed in the
We granted review to resolve the conflict among appellate decisions concerning whether the doctrine of forfeiture or waiver applies to a challenge to a condition of probation, raised for the first time on appeal, when the challenge is based on the ground the condition is vague or overbroad and thus facially unconstitutional. In addition, we directed the parties to brief the issue whether defendant’s probation condition requiring that she not associate with anyone “disapproved” of by “probation” is vague or overbroad and thus violates defendant’s constitutional rights.
As we shall explain, we conclude that defendant’s constitutional challenge to her probation condition was not forfeited despite her failure to object on the foregoing ground at the time the condition was imposed by the juvenile court. In addition, we conclude that, as imposed by the juvenile court, the probation condition is unconstitutionally vague, but as modified by the Court of Appeal, the condition satisfies federal constitutional requirements. For a different reason, however, we do not have cause to affirm the judgment rendered by the appellate court.
Recently we were informed that Sheena, who was bom on June 16, 1986, died on or about June 2, 2006. Although her death renders the People’s appeal technically moot (In re Jackson (1985)
I
Approximately 5:30 p.m. on September 26, 2002, defendant Sheena K. was in the dining facility at the MacLaren Children’s Center in El Monte. Defendant observed that Diana N., whom she did not like, was seated at the same table and demanded that Diana leave. When Diana refused, Children’s Center social worker Julie Nwosu intervened, instructing Diana to stay in her seat and defendant to change tables. Defendant refused to leave, engaged in yelling and name calling with Diana, and poured salad dressing on Diana’s hair and face.
Children’s Center social worker Carla Coleman, whom defendant also did not like, directed defendant to move away from Diana. Defendant approached Coleman, pointing her finger and calling Coleman names. Coleman lost her footing and shoved defendant, who punched Coleman in the face and pulled her hair before being restrained.
According to defendant, Coleman approached, told defendant to leave Diana alone, and pushed defendant against a wall, causing her to hit her head. After defendant pushed Coleman, they grappled and Coleman hit defendant with her fist, cutting defendant’s lip. Defendant denied that she called Coleman names, hit her, or pulled her hair, but admitted that she
The juvenile court found that defendant committed misdemeanor battery (Pen. Code, § 242) and, based on that offense, determined defendant to be a ward of the court (Welf. & Inst. Code, § 602). The juvenile court placed defendant on probation in the Camp Community Placement program, subject to 15 terms and conditions, including that defendant not “associate with anyone disapproved of by probation.” The written form probation order specified that defendant not associate with anyone disapproved of by “Probation Officer.”
On appeal, defendant asserted that in failing to specify that defendant know which persons were disapproved of by her probation officer, the probation condition was unconstitutionally vague or overbroad. In response, the Attorney General urged that defendant had failed to raise the issue in juvenile court and thus had forfeited the claim for purposes of appeal. Having concluded that defendant did not forfeit the constitutional claim on appeal and that the probation condition was vague and overbroad under the Fifth Amendment, the Court of Appeal modified the dispositional order to require that defendant refrain from associating with anyone who she knew was disapproved of by her probation officer, and in other respects affirmed the order. We granted the Attorney General’s petition for review.
II
A
Before determining whether the rule of forfeiture or waiver applies in the present context, we briefly review the nature and purpose of that rule.
In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a “ ‘discretionary sentencing choice[].’ ” (People v. Gonzalez (2003)
In their conflict over application of the forfeiture rule to defendant’s claim on appeal that her probation condition was unconstitutionally vague or overbroad, the parties in the present case, as well as the decisions of the Courts of Appeal, focus upon our decision in People v. Welch (1993)
On a prospective basis, we extended the forfeiture rule to a claim that probation conditions are unreasonable, when the defendant fails to object on that ground in the trial court. (Welch, supra, 5 Cal.4th at pp. 234—238.) We reasoned that an adult probationer who elects to receive probation in lieu of incarceration fairly may be charged with the need to timely challenge any conditions imposed and that application of the forfeiture doctrine would deter the promulgation of invalid conditions in the trial court and decrease the number of appeals
In so holding we rejected the argument that, despite the defendant’s failure to object at sentencing, her “reasonableness” claim was reviewable because appellate courts routinely correct “ ‘unauthorized sentences’ ” or those entered in “ ‘excess of jurisdiction.’ ” (Welch, supra,
Subsequently, several Courts of Appeal reviewing juvenile or adult court probation orders considered whether the rule of forfeiture we enunciated in Welch also should apply to a challenge made for the first time on appeal on the ground that a probation condition was unconstitutionally vague or over-broad.
In People v. Gardineer (2000)
On the other hand, several Courts of Appeal concluded the forfeiture rule did not extend to constitutional challenges that present “pure questions of law”—excepted in the Welch majority opinion (Welch, supra,
The Attorney General urges that several important considerations support our extension of Welch’s forfeiture rule to a claim on appeal that a probation condition is unconstitutionally vague and overbroad. As an initial matter, he suggests that the juvenile court is in the best position to explain, clarify, or modify any probation condition to which a defendant objects on constitutional grounds. (Abdirahman, supra, 58 Cal.App.4th at pp. 970-971; 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 925, pp. 1127-1128.) Second, he asserts that application of the forfeiture rule will reduce the number of unnecessary appellate claims and costly appeals, thereby conserving prosecutorial and judicial resources. (Gardineer, supra, 79 Cal.App.4th at pp. 151-152; Josue S., supra,
We are not persuaded that application of the forfeiture rule in the present context would produce the results predicted by the Attorney General. Applying the rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the
In contrast, an appellate claim—amounting to a “facial challenge”—that phrasing or language of a probation condition is unconstitutionally vague and overbroad because, for example, of the absence of a requirement of knowledge as in the present case, does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law.
Nor do we agree that permitting a minor to raise a constitutional claim of this type for the first time on appeal will encourage defense counsel simply to recast “unreasonableness” challenges as constitutional challenges. As defendant suggests, we presume that counsel will raise genuinely colorable claims in good faith on appeal, and will not mischaracterize a claim in order to evade the rule of forfeiture. Moreover, the appellate courts have demonstrated their ability to distinguish challenges to probation conditions based upon unreasonableness from those based upon facial constitutional defects.
The Attorney General also asserts that a challenge to a probation condition based upon a constitutional defect such as vagueness or overbreadth usually is not a “pure question of law” similar to that presented by an “unauthorized sentence” or a “sentence in excess of jurisdiction,” which “can be resolved without reference to the particular sentencing record developed in the trial court.” (Welch, supra,
It does not follow, however, that a constitutional challenge to a probation condition based upon vagueness or overbreadth cannot present a pure question of law. In common with a challenge to an unauthorized sentence that is not subject to the rule of forfeiture, a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law. Correction on appeal of this type of facial constitutional defect in the relevant probation condition, similar to the correction of an unauthorized sentence on appeal, may ensue from a reviewing court’s unwillingness to ignore “correctable legal error.” (Welch, supra, 5 Cal.4th at p. 236.) Thus, at times a Court of Appeal has exercised its discretion to hear a constitutional claim despite its holding or assumption that the rule of forfeiture applies.
For those reasons, we conclude defendant’s claim that her probation condition was unconstitutionally vague and overbroad was not forfeited by her failure to
B
Having decided that defendant did not forfeit her constitutional challenge, we now consider on its merits her claim that the probation condition forbidding her association with “anyone disapproved of by probation” is vague and overbroad.
The juvenile court has wide discretion to select appropriate conditions and may impose “ ‘any reasonable condition that is “fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” ’ ” (In re Byron B. (2004)
As we have explained on other occasions, the underpinning of a vagueness challenge is the due process concept of “fair warning.” (People v. Castenada (2000)
A probation condition “must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,” if it is to withstand a challenge on the ground of vagueness. (People v. Reinertson (1986)
In the present case, the Court of Appeal concluded that the condition that defendant not associate with anyone “disapproved of by probation” was both vague and overbroad because the juvenile court did not require that in order to be in violation, defendant must know which persons were disapproved of by the probation officer. The court reasoned that “because of the breadth of the probation officer’s power to virtually preclude the minor’s association with anyone,” defendant must be advised in advance whom she must avoid. This holding is consistent with numerous decisions. (See, e.g., Justin S., supra,
Several Courts of Appeal have recognized that a probation condition that otherwise would be deemed vague may be constitutional because the juvenile court offered additional oral or written comments clarifying that the minor must have knowledge of the persons disapproved of by the authorities. In Byron B., supra,
We agree with the Court of Appeal that in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague.
Additionally, we agree with the Court of Appeal that modification to impose an explicit knowledge requirement is necessary to render the condition constitutional. (See, e.g., Justin S., supra,
Although the Attorney General has asserted otherwise, the modification made by the Court of Appeal is entirely consistent with the potential modification of an injunction prohibiting association with gangs that we endorsed in Acuna, supra,
In the present case, the Court of Appeal did just that—inserting the qualification that defendant have knowledge of who was disapproved of by her probation officer, and thus securing the constitutional validity of the probation condition. In the interest of forestalling future claims identical to defendant’s based upon the same language, we suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone “known to be disapproved of’ by a probation officer or other person having authority over the minor.
III
The court having received a certified copy of the death certificate of defendant Sheena K. during the pendency of this appeal, all proceedings in this case must be permanently abated. The cause is remanded to the Court of Appeal, Second Appellate District, Division Two, with directions to enter an order in case No. B167626 permanently abating all proceedings with respect to defendant and requiring the Superior Court for the County of Los Angeles to enter an order to that effect in case No. KJ19106. (People v. Dail, supra,
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, L, concurred.
Notes
As the United States Supreme Court has clarified, the correct term is “forfeiture” rather than “waiver,” because the former term refers to a failure to object or to invoke a right, whereas the latter term conveys an express relinquishment of a right or privilege. (See, e.g., United States v. Olano (1993)
The rule that a defendant who fails to make a claim in the trial court forfeits that claim on appeal is subject to exceptions. By statute, a defendant may challenge on appeal an instruction that affects his or her substantial rights even when no objection has been made in the trial court. (Pen. Code, § 1259; People v. Cleveland (2004)
As we shall discuss further below, in a “narrow class” of cases the trial court’s omission or erroneous imposition of a particular sentence or term required by law results in an “unauthorized” sentence, which is subject to correction by the reviewing court despite the absence of an objection by either party in the trial court. (Smith, supra, 24 Cal.4th at pp. 852-853 [in failing to impose a parole revocation fine in an amount required by statute to be equal to the restitution fine imposed, the trial court renders an unauthorized sentence rather than a discretionary sentencing choice; the reviewing court may modify the sentence to correct the amount of the fine despite the defendant’s failure to object]; see Scott, supra,
The Courts of Appeal eventually agreed that the rule of forfeiture we applied in Welch to an adult defendant who fails in the trial court to challenge a condition of probation on the ground of unreasonableness also applies to juvenile defendants. Relying upon our observation in In re Tyrell J. (1994)
The Attorney General suggests in his brief that, in the event we conclude the Welch forfeiture rule applies to a claim that a probation condition on its face is unconstitutionally vague and overbroad, we also should apply the rule that ordinarily judicial decisions are retroactive. He observes that the forfeiture doctrine previously has been applied to this type of claim. (Gardineer, supra, 79 Cal.App.4th at pp. 151-152; Josue S., supra,
The Attorney General asserts that the rehabilitative and reformative goals of juvenile wardship law—especially that of instilling accountability in juvenile offenders—will be promoted by requiring that a minor object to a probation condition in the juvenile court rather than accede to the condition in the belief the condition may be challenged on appeal. The laudable goals of the juvenile dependency law do not outweigh the more general goal of the justice system to protect the constitutional rights of adults and minors. It also is doubtful whether the goals of the juvenile justice system to reform and rehabilitate the minor would be advanced to any significant degree by imposing upon the minor’s counsel the responsibility to object in the juvenile court in order to preserve claims on appeal.
Our conclusion that Welch’s forfeiture rule should not extend to a facial challenge to the terms of a probation condition on constitutional grounds of vagueness and overbreadth is consistent with principles cited in several appellate decisions that have reviewed certain types of claims despite forfeiture by the parties. In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that court’s discretion. (People v. Williams (1998)
The appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right. (6 Witkin & Epstein, Cal. Criminal Law, supra, § 36, p. 497; id. (2006 supp.) § 36, p. 115; see, e.g., People v. Marchand (2002)
Our conclusion also is consistent with our observation that in a child dependency action, an appellate court may consider a claim raising an important question of law despite the appellant’s failure to raise the issue in the trial court, but “discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.]” (S.B., supra,
In view of that conclusion, it is unnecessary to decide whether, as held by the Court of Appeal, the probation condition also is unconstitutionally overbroad.