Supreme Court of California Justia
Docket No. S123980
In re Sheena K.

Filed 3/15/07

IN THE SUPREME COURT OF CALIFORNIA

In re SHEENA K., a Person
Coming Under the Juvenile Court Law.
________________________________ )
THE PEOPLE,
Plaintiff and Respondent,
S123980
v.
Ct.App. 2/2 B167626
SHEENA K.,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. KJ19106

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
1


on the merits that the probation condition imposed in the present case is
unconstitutionally vague and overbroad in its literal wording, the Court of Appeal
added the requirement that defendant have knowledge that the probation officer
disapproved of a particular associate, and upheld the condition as so modified.
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 and overbroad, 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 born 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) 39 Cal.3d 464, 468, fn. 3; see People v.
Dail (1943) 22 Cal.2d 642, 659), we have exercised our inherent authority to
retain this case for argument and opinion in order to resolve the conflict that has
arisen in the Courts of Appeal with regard to the first issue, and in view of the
recurring nature of both issues. (People v. Anzalone (1999) 19 Cal.4th 1074,
1076; In re Jackson, supra, 39 Cal.3d at p. 468, fn. 3; see People v. Mancheno
(1982) 32 Cal.3d 855, 859, fn. 1; In re William M. (1970) 3 Cal.3d 16, 23-25.)
2
I
At 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 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 pushed Coleman and freed herself
from Coleman’s grip.
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
3
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 whom 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.1 Ordinarily,
a criminal defendant who does not challenge an assertedly erroneous ruling of the
trial court in that court has forfeited his or her right to raise the claim on appeal.
(Simon, supra, 25 Cal.4th at p. 1097; People v. Smith (2001) 24 Cal.4th 849, 852
(Smith).) As the United States Supreme Court recognized in United States v.
Olano, supra, 507 U.S. at page 731, “ ‘[n]o procedural principle is more familiar
to this Court than that a constitutional right,’ or a right of any other sort, ‘may be
forfeited in criminal as well as civil cases by the failure to make timely assertion
of the right before a tribunal having jurisdiction to determine it.’ ” (See S.B.,

1
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) 507
U.S. 725, 733; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 (S.B.); People v.
Simon
(2001) 25 Cal.4th 1082, 1097, fn. 9 (Simon).) As a practical matter, the two
terms on occasion have been used interchangeably. (Simon, at p. 1097, fn. 9;
People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6 (Saunders).) Because it is
most accurate to describe the issue as whether a party has forfeited a claim by
failing to object in the trial court, “in our subsequent discussion we generally shall
refer to the issue as one of forfeiture.” (Simon, at p. 1097, fn. 9.)
4


supra, 32 Cal.4th at p. 1293; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000)
Reversible Error, § 36, pp. 495-497; see also 9 Witkin, Cal. Procedure (4th ed.
1997 & 2006 supp.) Appeal, §§ 394, 398 [applying the forfeiture rule in civil
matters except as to questions of law and matters of public interest].) “The
purpose of this rule is to encourage parties to bring errors to the attention of the
trial court, so that they may be corrected. [Citation.]” (S.B., at p. 1293; Smith, at
p. 852; Saunders, supra, 5 Cal.4th at pp. 590-592.)2
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) 31 Cal.4th 745, 751, 752; Smith, supra,
24 Cal.4th at p. 852; People v. Scott (1994) 9 Cal.4th 331, 351-354 (Scott) [when
the trial court fails to make or properly articulate a discretionary sentencing
choice, the defendant must object in order to preserve the claim on appeal]; People
v. Tillman (2000) 22 Cal.4th 300, 302-303 (Tillman) [when the trial court fails to
articulate reasons for not imposing a restitution fine, a decision that constitutes a
discretionary sentencing choice, the People must object if their claim is to be
preserved].)

2
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) 32 Cal.4th 704, 749; People v. Hillhouse (2002) 27 Cal.4th 469,
505-506; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) In addition,
“when the charging document indicates on its face that the action is time-barred, a
person convicted of a charged offense may raise the statute of limitations at any
time” including on appeal, because the statute is jurisdictional and confers a
substantive rather than a procedural right. (People v. Williams (1999) 21 Cal.4th
335, 341.) As we shall discuss, exceptions to the rule also apply with respect to
sentencing. (See, post, at pp. 6-7 & fn. 3, 13.)
5


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) 5 Cal.4th 228 (Welch). In
Welch, the adult defendant was convicted of welfare fraud and placed on
conditional probation. Based upon then-existing law permitting initial challenge
of probation conditions on appeal, she asserted that several conditions were
unreasonable and inappropriate because they did not bear a reasonable relationship
to the underlying offense and future criminality, and purported to regulate conduct
that was noncriminal. (Welch, supra, 5 Cal.4th at pp. 232-235; see People v. Lent
(1975) 15 Cal.3d 481, 486, & fn. 1; In re Bushman (1970) 1 Cal.3d 767, 776-777.)
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 contesting
such conditions. (Id. at pp. 235-237.)
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, 5 Cal.4th at p. 235.)3 The majority

3
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
(footnote continued on next page)
6


observed that the authorities cited by the defendant in support “generally involve
pure questions of law that can be resolved without reference to the particular
sentencing record developed in the trial court” and reflect “the reviewing court’s
unwillingness to ignore clear and correctable legal error, particularly where the
defendant might otherwise spend too much or too little time in custody.” (Id. at
pp. 235-236.) The concurrence commented that “[i]n those limited circumstances
[in which legal error arises that implicates ‘fundamental principles of policy and
constitutional guaranties’], the prerequisite of an objection to appellate review
would frustrate rather than subserve the interests of justice . . . .” (Id. at p. 241
(conc. opn. of Arabian, J.).)
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 overbroad.4 On the one

(footnote continued from previous page)
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
, 9 Cal.4th at p. 354, fn. 17 [in staying or failing to stay a sentence in
violation of Pen. Code, § 654, the trial court renders an unauthorized sentence that
may be modified by the reviewing court despite the defendant’s failure to raise the
issue in the trial court]; cf. Tillman, supra, 22 Cal.4th at p. 303 [in failing either to
impose or state reasons not to impose a restitution fine, the trial court made a
discretionary sentencing choice and did not impose an unauthorized sentence that
the reviewing court could correct by imposing the minimum fine; the People
forfeited their claim by failing to object at trial]; People v. Hester (2000) 22
Cal.4th 290, 295 [by accepting in a plea agreement a specified sentence violating
Pen. Code, § 654, the defendant rendered inapplicable the exemption from
forfeiture normally accorded such a claim, and was required to object in the trial
court in order to preserve the claim].)
4
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.
(footnote continued on next page)
7


hand, several courts held that the forfeiture rule in Welch extended to challenges to
probation conditions made on constitutional grounds. In Josue S., supra, 72
Cal.App.4th 168, a minor convicted of vandalism received probation with the
conditions that he accept warrantless searches, abide by restrictions on travel, and
earn satisfactory grades in school. Initially on appeal, the minor claimed that the
probation conditions bore no reasonable relationship to the offense, restricted his
exercise of “constitutional rights” (rights not specified in the opinion), and were
vague and overbroad. The Court of Appeal held the minor forfeited all of his
constitutional and state law claims by failing to object in the juvenile court. (Id. at
pp. 170-173.)
In People v. Gardineer (2000) 79 Cal.App.4th 148, 150 (Gardineer), the
defendant, convicted of assault with a deadly weapon, received probation with
conditions including that he “ ‘observe good conduct.’ ” For the first time on
appeal from the judgment in subsequent proceedings revoking probation after he
sent a threatening letter, the defendant asserted the condition was unconstitutionally

(footnote continued from previous page)
Relying upon our observation in In re Tyrell J. (1994) 8 Cal.4th 68, 82 (Tyrell J.),
disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130, that
unlike an adult, a juvenile offender cannot refuse or consent to a grant of probation,
a single case held that the rule of Welch does not apply in juvenile court
proceedings. (In re Tanya B. (1996) 43 Cal.App.4th 1, 5.) Subsequent decisions
criticized Tanya B. and applied the forfeiture rule of Welch to juveniles who
challenged probation conditions based upon unreasonableness. (In re Abdirahman
S
. (1997) 58 Cal.App.4th 963, 969-971 (Abdirahman); see In re Josue S. (1999) 72
Cal.App.4th 168, 171-173 (Josue S.); In re Kacy S. (1998) 68 Cal.App.4th 704, 712
(Kacy S.).) Following those decisions, the court that decided Tanya B. concluded
that its reliance on Tyrell J. was misplaced, because the circumstance that a minor
has no choice but to accept probation conditions “ ‘does not mean that the minor
may not object to imposition of those conditions,’ ” noting our observation in
Tyrell J. that “ ‘[a] minor can, of course, object to particular conditions of probation
as improper or unwarranted.’ ” (In re Justin S. (2001) 93 Cal.App.4th 811, 814
(Justin S.) [subject to exceptions, a minor who fails to challenge an unreasonable
probation condition in the juvenile court forfeits the issue on appeal].)
8


vague. Holding the defendant had forfeited this claim by failing to object on that
ground in the trial court that imposed the condition, the Court of Appeal noted that
the rationale for the forfeiture rule that was applied in Welch — to discourage the
imposition of invalid probation conditions and reduce the number of costly appeals
— applied fully to a claim that the condition was unconstitutionally vague.
(Gardineer, at pp. 151-152.)
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, 5 Cal.4th at p. 235)― or
that involve “fundamental principles of policy and constitutional guaranties” ―
referred to in the concurring opinion in Welch. (Id. at p. 241 (conc. opn. of
Arabian, J.).) In Kacy S., supra, 68 Cal.App.4th 704, a minor claimed for the first
time on appeal that a probation condition requiring that he “ ‘not associate with
any persons not approved by his probation officer’ ” was unconstitutionally
overbroad. (Id. at p. 708.) In rejecting the People’s response that the minor did
not object at trial and thus had forfeited the claim on appeal, the Court of Appeal
observed that Welch was “founded on considerations of judicial economy which
will not be furthered by upholding a probation condition that literally requires the
probation officer to approve [the minor’s] ‘associat[ion]’ with ‘persons’ such as
grocery clerks, mailcarriers, and health care providers. Nor does the present
record justify such a sweeping limitation on [the minor’s] liberty.” (Kacy S., at p.
713.) The reviewing court modified the condition to forbid the minor’s
association with a particular person. (Ibid.)
In Justin S., supra, 93 Cal.App.4th 811, 813, the minor received probation
on conditions including that he not “ ‘associate with any gang members and
anyone disapproved by parent(s)/P.O.’ ” In declining to apply the doctrine of
forfeiture to the minor’s claim on appeal of unconstitutional vagueness and
overbreadth, the Court of Appeal observed that the majority holding in Welch was
limited to “ ‘Bushman/ Lent’ unreasonableness grounds, and expressly imposed no
9
waiver rule on ‘pure questions of law that could be resolved without referring to
the particular sentencing record developed in the trial court.’ [Citation.]”
(Justin S., at pp. 814-815.) The court modified the condition to forbid the minor’s
association “ ‘with any person known to you to be a gang member . . . .’ ” (Id. at
p. 816.) In the present case the Court of Appeal, following Justin S., held that
defendant’s failure to object in the juvenile court to the probation condition on the
constitutional ground of vagueness and overbreadth did not forfeit the issue on
appeal, because the claims consisted of “pure questions of law that can be resolved
without regard to the sentencing record in the trial court.”
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, 72
Cal.App.4th at p. 171; see Smith, supra, 24 Cal.4th at p. 852.) Finally, he argues
that uniform application of the forfeiture rule to claims that probation conditions
are unreasonable or unconstitutional will forestall the possibility that appellants
merely will recast “unreasonableness” claims as constitutional claims and thus
cause the exception to “swallow the rule.”5

5
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
(footnote continued on next page)
10


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 case would have to be remanded to the trial court for
resentencing or reconsideration of probation conditions.
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

(footnote continued from previous page)
Cal.App.4th at pp. 151-152; Josue S., supra, 72 Cal.App.4th at p. 173; see Welch,
supra, 5 Cal.4th at pp. 235-238.) The issue is moot in the present case, in view of
defendant’s death, and in any event we decline to apply the rule of Welch to a facial
constitutional challenge made on the ground of vagueness and overbreadth.
11


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, 5
Cal.4th at p. 235.) He urges that a claim of vagueness or overbreadth generally
must be considered in light of the facts of a particular case because, for example,
conditions that otherwise might be deemed overbroad “will pass muster if tailored
to fit the individual probationer.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368,
1373 [observing that a restriction on travel to gang territory might be proper for a
minor living outside the gang’s territory but overbroad for a minor who lives,
works, or attends school within that area]; In re Antonio R. (2000) 78 Cal.App.4th
937, 941-942 [upholding a probation condition requiring a minor living in one
county not to travel to another county where the criminal conduct occurred and his
gang was located].) The Attorney General points out that constitutional challenges
to a probation condition may warrant remand to the trial court for the purpose of
narrowing an overbroad condition in light of the defendant’s circumstances. (See,
e.g., In re White (1979) 97 Cal.App.3d 141, 149-151 (White) [probation condition
forbidding travel within designated areas having significant prostitution activities
violated the defendant’s constitutional right to travel; case remanded to narrow
travel restrictions in light of additional evidence].)6

6
The Attorney General asserts that the rehabilitative and reformative goals of
juvenile dependency law — especially that of instilling accountability in juvenile
offenders — will be promoted by requiring that a minor object to a probation
(footnote continued on next page)
12


We agree that an unconstitutionally vague or overbroad probation condition
does not come within the “narrow exception” to the forfeiture rule made for a so-
called “unauthorized sentence” or a sentence entered in “excess of jurisdiction.”
(Smith, supra, 24 Cal.4th at p. 852; Welch, supra, 5 Cal.4th at p. 235.) A sentence
is said to be unauthorized if it cannot “lawfully be imposed under any
circumstance in the particular case” (Scott, supra, 9 Cal.4th at p. 354), and
therefore is reviewable “regardless of whether an objection or argument was raised
in the trial and/or reviewing court.” (Welch, at p. 235; Smith, at p. 852.) An
obvious legal error at sentencing that is “correctable without referring to factual
findings in the record or remanding for further findings” is not subject to
forfeiture. (Smith, at p. 852; Scott, at p. 354 & fn. 17.) In contrast, a probation
condition may not be patently unconstitutional but may suffer nonetheless from
vagueness or overbreadth. Or in some instances, a constitutional defect may be
correctable only by examining factual findings in the record or remanding to the
trial court for further findings.
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

(footnote continued from previous page)
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.
13


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.7

7
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) 17 Cal.4th 148, 161-162, fn. 6
(Williams); see S.B., supra, 32 Cal.4th at p. 1293; In re Wilford J. (2004) 131
Cal.App.4th 742, 754; In re Charles T. (2002) 102 Cal.App.4th 869, 873; 6 Witkin
& Epstein, Cal. Criminal Law, supra, § 36, p. 497.) Thus, an appellate court may
review a forfeited claim — and “[w]hether or not it should do so is entrusted to its
discretion.” (Williams, at p. 162, fn. 6; cf. S.B., at p. 1293, discussed below.)

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) 98 Cal.App.4th
1056, 1061 [the appellate court in its discretion decided a forfeited challenge to the
constitutionality of penal statutes]; People v. Brown (1996) 42 Cal.App.4th 461,
471 [the appellate court exercised discretion to decide important issues of
constitutional law despite forfeiture].) The appellate courts occasionally also have
invoked their discretion to review an apparent constitutional issue when
applicability of the forfeiture rule is uncertain or the defendant did not have a
meaningful opportunity to object at trial. (See, e.g., People v. Peck (1996) 52
Cal.App.4th 351, 361-362, fn. 5 [the applicability of the forfeiture rule to
constitutional challenges not having been decided, the appellate court in its
discretion considered the merits of the claim that probation conditions
impermissibly burdened the defendant’s constitutional rights to freedom of
association and religion]; People v. Hackler (1993) 13 Cal.App.4th 1049, 1052,
1054-1057 [the trial court having failed to provide advance notice or to grant a
continuance and having itself solicited appellate review of the validity of the
(footnote continued on next page)
14


Defendant’s challenge to her probation condition as facially vague and
overbroad presents an asserted error that is a pure question of law, easily
remediable on appeal by modification of the condition. (See Welch, supra, 5
Cal.4th at pp. 235-236; Hale v. Morgan (1978) 22 Cal.3d 388, 394; cf. Josue S.,
supra, 72 Cal.App.4th at pp. 170-171.) Unlike claims that evidence erroneously
was admitted or that the prosecutor committed misconduct ― claims made in
several cases cited by the Attorney General for the proposition that forfeiture is
necessary for the sake of procedural efficiency and conservation of judicial
resources ― the circumstance that defendant failed to assert her constitutional
claim in juvenile court does not have an impact on the same proceedings
“downstream.” Moreover, unlike the types of challenges not requiring additional

(footnote continued from previous page)
probation condition, the appellate court considered on the merits the claim that a
probation condition requiring defendant to wear a court-supplied T-shirt stating:
“ ‘My record plus two six-packs equals four years,’ ” and “ ‘I am on felony
probation for theft’ ” was unconstitutional]; see also In re Khonsavanh S. (1998) 67
Cal.App.4th 532, 537 [the trial court having ordered in the absence of statutory
authorization the AIDS testing of a minor involved in a drive-by shooting, the
appellate court reiterated but declined to apply the rule of forfeiture because
defense counsel had little chance to react and was “utterly surprised by” the order].)

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, 32 Cal.4th at
p. 1293 [exercising discretion to consider issue of law involving the juvenile
court’s delegation to legal guardians of authority to determine visitation by the
minor’s mother].) In addition, our holding is in accord with the limited
exception — for constitutional claims initially raised on appeal when closely
related to claims raised at trial regarding the admission or exclusion of evidence —
to the established rule that a forfeited claim of trial court error in admitting or
excluding evidence is not subject to discretionary appellate review. (People v.
Partida
(2005) 37 Cal.4th 428, 437-439; Williams, supra, 17 Cal.4th at pp. 161-
162, fn. 6.)
15


factual findings that nonetheless are rejected routinely by the appellate courts due
to forfeiture, defendant’s constitutional challenge presents an important question
of law that, as we have discussed, is likely to be reviewed on the merits by the
appellate court notwithstanding the applicability of the forfeiture rule. Thus, it
does not appear legally imperative, practical, or wise to extend the forfeiture rule
of Welch to defendant’s constitutional challenge.
For those reasons, we conclude defendant’s claim that her probation
condition was unconstitutionally vague and overbroad was not forfeited by her
failure to raise it in juvenile court. We caution, nonetheless, that our conclusion
does not apply in every case in which a probation condition is challenged on a
constitutional ground. As stated by the court in Justin S., we do not conclude that
“all constitutional defects in conditions of probation may be raised for the first
time on appeal, since there may be circumstances that do not present ‘pure
questions of law that can be resolved without reference to the particular sentencing
record developed in the trial court.’ (People v. Welch, supra, 5 Cal.4th at p. 235.)
In those circumstances, ‘[t]raditional objection and waiver principles encourage
development of the record and a proper exercise of discretion in the trial court.’
(Id. at p. 236.)” (Justin S., supra, 93 Cal.App.4th at p. 815, fn. 2.) We also
emphasize that generally, given a meaningful opportunity, the probationer should
object to a perceived facial constitutional flaw at the time a probation condition
initially is imposed in order to permit the trial court to consider, and if appropriate
in the exercise of its informed judgment, to effect a correction.
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
16
re Byron B. (2004) 119 Cal.App.4th 1013, 1015 (Byron B.); Welf. & Inst. Code,
§ 730, subd. (b); see Welch, supra, 5 Cal.4th at p. 233). In distinguishing between
the permissible exercise of discretion in probationary sentencing by the juvenile
court and that allowed in “adult” court, we have advised that, “[a]lthough the goal of
both types of probation is the rehabilitation of the offender, ‘[j]uvenile probation is
not, as with an adult, an act of leniency in lieu of statutory punishment . . . . [¶] In
light of this difference, 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 . . . . [¶] . . . [N]o choice is given to the
youthful offender [to accept probation]. By contrast, an adult offender ‘has the right
to refuse probation, for its conditions may appear to defendant more onerous than
the sentence which might be imposed.’ [Citations.]” (Tyrell J., supra, 8 Cal.4th at
pp. 81-82, disapproved on other grounds in In re Jaime P., supra, 40 Cal.4th at
p. 130; Byron B., supra, 119 Cal.App.4th at p. 1016; Abdirahman S., supra, 58
Cal.App.4th at p. 969; In re Jimi A. (1989) 209 Cal.App.3d 482, 487-488.)
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) 23 Cal.4th 743, 751.) The rule of fair warning consists of “the due process
concepts of preventing arbitrary law enforcement and providing adequate notice to
potential offenders” (ibid.), protections that are “embodied in the due process
clauses of the federal and California Constitutions. (U.S. Const., Amends. V,
XIV; Cal. Const., art. I, § 7).)” (Ibid.) The vagueness doctrine “ ‘bars
enforcement of “a statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application.” ’ [Citations.]” People ex rel. Gallo v.
Acuna (1997) 14 Cal.4th 1090, 1115 (Acuna).) A vague law “not only fails to
provide adequate notice to those who must observe its strictures, but also
‘impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of
17
arbitrary and discriminatory application.’ [Citation.]” (Id. at p. 1116.) In
deciding the adequacy of any notice afforded those bound by a legal restriction,
we are guided by the principles that “abstract legal commands must be applied in a
specific context,” and that, although not admitting of “mathematical certainty,” the
language used must have “ ‘reasonable specificity.’ ” (Id. at pp. 1116-1117,
italics in original.)
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) 178 Cal.App.3d at pp. 324-325.) A probation
condition that imposes limitations on a person’s constitutional rights must closely
tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad. (See White, supra, 97 Cal.App.3d at p. 149-150.)
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, 93 Cal.App.4th at
p. 816 [probation condition “[p]rohibiting association with gang members without
restricting the prohibition to known gang members is ‘ “a classic case of
vagueness” ’ ”]; Kacy S., supra, 68 Cal.App.4th at pp. 712-713 [probation
condition requiring that the minor “ ‘not associate with any persons not approved
by his probation officer’ ” would require “the probation officer to approve [the
minor’s] ‘associat[ion]’ with ‘persons’ such as grocery clerks, mailcarriers, and
health care providers” and was overbroad]; People v. Lopez (1998) 66 Cal.App.4th
615, 628, 629 [condition of probation prohibiting any association with a gang
18
“suffers from . . . fatal overbreadth”]; People v. King (1968) 267 Cal.App.2d 814,
825-826 (King) [noting that probation conditions prohibiting association with
named persons or classes of persons have withstood vagueness challenges].)
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, 119 Cal.App.4th at page 1018, the appellate court rejected the minor’s
challenge, on the ground of vagueness, to a probation condition prohibiting
contact with any person disapproved of by a parent, probation officer, or others,
because the juvenile court’s minute order included the “crucial words ‘known to
be’ ”; the condition was upheld as providing that the minor “must ‘not have direct
or indirect contact with anyone known to be disapproved by parent(s)/guardian(s)
/probation officer, staff.’ ” (Id. at p. 1015.) Similarly, in In re Frank V. (1991)
233 Cal.App.3d 1232 (Frank V.), the reviewing court upheld a probation condition
failing to specify that the minor know who was disapproved of, because at the oral
proceedings the juvenile court advised that the persons with whom the probationer
was precluded from associating were those whom his parents and the probation
officer “ ‘tell you . . . that you can’t hang out with.’ ” (Frank V., at p. 1241; see
also King, supra, 267 Cal.App.2d at pp. 824-825 [probation condition forbidding
participation in demonstrations was not vague or indefinite, because the trial court
gave a detailed explanation of the condition and the activity that might subject the
defendant to probation revocation].)
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.8 Both as orally pronounced by the juvenile court, and as

8
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.
19


set forth in the minute order, the probation condition did not notify defendant in
advance with whom she might not associate through any reference to persons
whom defendant knew to be disapproved of by her probation officer. In contrast
to Byron B., supra, 119 Cal.App.4th at p. 1018, and Frank V., supra, 233
Cal.App.3d at p. 1241, upon which the Attorney General relies, the juvenile court
in the present case did not clarify that the probation condition required such notice
to the probationer.
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, 93 Cal.App.4th at p. 816 [probation
condition modified to forbid the minor’s association “ ‘with any person known to
you to be a gang member’ ”]; People v. Lopez, supra, 66 Cal.App.4th at p. 629, fn.
5 [condition of probation modified to prohibit defendant from associating “ ‘with
any person known to defendant to be a gang member’ ”]; People v. Garcia (1993)
19 Cal.App.4th 97, 103 [condition of probation modified to provide that the
defendant “is not to associate with persons he knows to be users or sellers of
narcotics, felons, or ex-felons”].)
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, 14 Cal.4th 1090. In Acuna, the Court of Appeal concluded that a provision
of the injunction forbidding association with “ ‘any other known [named gang]
member’ ” could be construed to apply when a defendant engaged in one of the
prohibited activities with someone known to the police ― but not known to the
defendant ― to be a gang member, and thus was unconstitutionally vague. We
advised that in order to enforce the injunction, the local entity “would have to
establish a defendant’s own knowledge of his associate’s gang membership to
meet its burden of proving conduct in violation of the injunction.” (Id. at p. 1117.)
We suggested that the element of a defendant’s knowledge fairly was implied in
20
the injunction, and if any attempt were made to enforce that provision, the trial
court could limit its construction by inserting a knowledge requirement. “With
that minor emendation, the text . . . passes scrutiny under the vagueness doctrine.”
(Id. at pp. 1117-1118.)
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, 22 Cal.2d 642, 659;
People v. Bandy (1963) 216 Cal.App.2d 458, 466.)
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
21

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Sheena K.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 116 Cal.App.4th 436
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S123980
Date Filed: March 15, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Daniel S. Lopez

__________________________________________________________________________________

Attorneys for Appellant:

Edward H. Schulman, under appointment by the Supreme Court, and Steven A. Torres, under appointment
by the Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte, Donald E. De Nicola, Jamie L.
Fuster and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Edward H. Schulman
9420 Reseda Boulevard, #530
Northridge, CA 91324
(818) 363-6906

Yun K. Lee
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2051


Opinion Information
Date:Docket Number:
Thu, 03/15/2007S123980

Parties
1The People (Plaintiff and Respondent)
Represented by Yun K. Lee
Office of the Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA

2K., S. (Defendant and Appellant)
Represented by Edward H. Schulman
Attorney at Law
9420 Reseda Boulevard, Suite 530
Northridge, CA

3K., S. (Overview party)

Disposition
Mar 15 2007Opinion filed

Dockets
Apr 8 2004Petition for review filed
  counsel for resp. The People
Apr 12 2004Record requested
 
Apr 12 2004Received Court of Appeal record
  one doghouse
May 13 2004Time extended to grant or deny review
  to and including July 7, 2004, or the date upon which review is either granted or denied.
Jun 9 2004Petition for review granted (criminal case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jun 16 2004Additional issues ordered
  The parties are directed to brief the following two issues. 1. Is a challenge to a condition of juvenile probation as unconstitutionally vague or overbroad waived or forfeited by the failure to object to the condition at the time of the dispositional hearing in juvenile court? 2. Is the probation condition that a minor "not associated with anyone disapproved of by [her] probation [officer]" constitutionally vague or overbroad?
Jul 6 2004Request for extension of time filed
  to file respondent, the people's, opening brief/merits, to August 8, 2004.
Jul 9 2004Extension of time granted
  Respondent's time to serve and file the opening brief on the merits is extended to and including August 8, 2004.
Jul 16 2004Counsel appointment order filed
  Edward H.Schulman is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Aug 3 2004Request for extension of time filed
  opening brief/merits to 8-23-04>>respondent People
Aug 5 2004Extension of time granted
  Respondent's time to serve and file the opening brief is extended to and including August 27, 2004.
Aug 27 2004Opening brief on the merits filed
  respondent People
Sep 21 2004Answer brief on the merits filed
  appellant Sheena K.
Sep 29 2004Compensation awarded counsel
  Atty Schulman
Oct 12 2004Reply brief filed (case fully briefed)
  respondent People
Aug 14 2006Filed:
  Notice of Appellant's death and Request for Retention of Case for Argument and Opinion
Oct 16 2006Received:
  from counsel for aplt. (King) State of Calif., Certification of Vital Record, Certificate of Death for Sheena Latrice King.
Dec 5 2006Case ordered on calendar
  Wednesday, January 10, 2007, at 9:00 a.m., in San Francisco
Jan 10 2007Cause argued and submitted
 
Mar 14 2007Notice of forthcoming opinion posted
 
Mar 15 2007Opinion filed
  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. Cause is remanded to CA 2/2 with directions to enter an order in case B167626 permanently abating all proceedings with respect to defendant. Majority Opinion by George, C.J. --- joined by : Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Apr 11 2007Compensation awarded counsel
  Atty Schulman
Apr 19 2007Remittitur issued (criminal case)
 
Apr 24 2007Note:
  records returned to CA 2/2
Apr 25 2007Received:
  receipt for remittitur from CA 2/2

Briefs
Aug 27 2004Opening brief on the merits filed
 
Sep 21 2004Answer brief on the merits filed
 
Oct 12 2004Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website