Metropolitan News-Enterprise


Tuesday, August 12, 2008


Page 3


‘Banishment’ of Minor Probationer Unconstitutional—C.A.


By a MetNews Staff Writer


A probation condition prohibiting a minor citizen from entering the United States was both unreasonable and unconstitutional, the Fourth District Court of Appeal held yesterday.

Div. One reversed the condition imposed by San Diego Superior Court Judge Francis M. Devaney after 17-year old James C., as the court identified him, entered a negotiated admission to receiving a stolen vehicle, concluding that the condition violated the minor’s constitutional rights of freedom of travel, assembly and association.

James was arrested while attempting to drive a stolen vehicle concealing undocumented persons into the United States at the San Ysidro point of entry. He was later declared a ward of the court, and Devaney placed him on probation subject to a condition that James return to his residence with his legal guardians in Tijuana, Mexico and not re-enter the United States.

The judge committed him to a juvenile camp for a year, but stayed the commitment provided he complied with the probation conditions, including that he not come back to the United States.

“I mean, you’re not coming back into this country,” Devaney said. “I don’t care if you are a citizen.  I don’t care if you have papers.  You have no business, as terms of probation, coming back into the country after what you did in this case.  So you will not re-enter this country.”

On appeal, the attorney general conceded that the condition was unconstitutional, and the panel agreed.

Justice Richard D. Huffman acknowledged that juvenile courts have broad authority in imposing probation conditions,  noting that Welfare and Institutions Code Secs. 727 and 730 authorize the juvenile court to 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.”

However, Huffman continued, the conditions imposed must foster rehabilitation, protect public safety, and be reasonably related to the crime of which the probationer was convicted or to future criminality.

Noting that James had no criminal history and no involvement with alcohol, drugs, or gangs, Huffman reasoned he was not at a high risk of reoffending. Further, Huffman reasoned, James’ crime was receiving a stolen vehicle, not alien smuggling, and so prohibiting him from entering the United States was not reasonably related to his crime.

Huffman also noted that the probation condition “effectively banished” James from his own country. Citing In re Babak S. (1993) 18 Cal.App.4th 1077, In re White (1979) 97 Cal.App.3d 141, People v. Bauer (1989) 211 Cal.App.3d 937, and Alhusainy v. Superior Court (2006) 143 Cal.App.4th 385, Huffman concluded that such “banishment probation conditions” are constitutionally infirm.

The cited cases involved conditions requiring that an offender return to his native country for at least two years, that a prostitute not set foot in a specified area of the city in which she was arrested, that a defendant obtain approval of his residence from a probation officer, and that a defendant leave California.

Justices James A. McIntyre and Cynthia Aaron joined Huffman in his opinion.

The case is In re James C., 08 S.O.S. 4867.


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