Judge Francis M. Devaney
Overturned probation condition is judge's 2nd
Orders kept youths from entering U.S.
By Greg Moran,
San Diego Union-Tribune Staff Writer
June 23, 2009
The state appeals court struck down the first order as unconstitutional in August, weeks before the second reversal.
For the second time in a year, a state appeals court has reversed a San Diego judge's probation condition that essentially banished a juvenile U.S. citizen to Mexico.
The youth, identified in court papers as Alex O., was 17 when he was arrested in August at the San Ysidro border crossing with about 4 pounds of marijuana. He is a U.S. citizen who lives in Tijuana with his mother, who is not a legal U.S. resident.
Alex pleaded guilty to possessing marijuana, and Superior Court Judge Frank Devaney sentenced him to a year in juvenile camp but stayed that sentence and placed him on probation.
As a condition of the probation, Devaney said the youth could enter the United States only to attend school, visit relatives or work. He also ordered Alex to notify his probation officer when he was to enter the country.
Devaney made that ruling in September. That was just weeks after the state 4th District Court of Appeal in San Diego struck down a similar order that Devaney made for another youth.
In that case, Devaney ordered James C. to live with his grandparents in Tijuana, and under no circumstances return for a year. The state appeals court struck down that order as unconstitutional in August because it violated the youth's rights of free association and travel.
Faced with the similar case of Alex O., Devaney again erred, the court concluded.
The youth does not attend school in this country, has no job and no family, so it was unlikely that any of the permitted reasons for him to enter the country would apply, Justice Patricia Benke wrote. The order also prevented Alex from entering the country to attend a movie or go to the beach or the zoo, Benke said.
“In short, although the juvenile court's order is not an express banishment from the United States, its practical effect on Alex is almost indistinguishable from a banishment,” Benke wrote.
Devaney, now a judge in the downtown San Diego adult courts, declined to comment last week.
Deputy Public Defender Jo Pastore, who handled the appeal, said Devaney's order was too broad. While judges have discretion on setting conditions of probation, the law says those conditions have to have some relation to the crime at issue.
“The (appeals) court is saying the problem happened at the border, so if you are infringing on someone's right to travel, it has to be limited and specifically tailored to crossing the border,” Pastore said.
That is why the appeals court upheld one condition — that Alex notify his probation officer before coming into the United States. Such orders are made in other juvenile probation cases, such as when minors want to leave the county.
Benke said requiring Alex to notify his probation officer when he enters the country relates to the crime he committed, and does not hinder his right to travel as a U.S. citizen.
Pastore said Devaney thought he was complying with the appeals court's first decision when he dealt with Alex. But his solution ended up with the same effect.
“It banished him from the entire country, and the court said that is just over-broad,” Pastore said.