IN RE O.R.

No. A148794.

In re O.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.R., Defendant and Appellant.

Court of Appeals of California, First District, Division Five.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

NEEDHAM, J.

O.R. appeals from a disposition order that allowed him to remain on probation after stealing a vehicle, attempting to steal another, and violating his probation. He contends the probation conditions prohibiting him from associating with any person he reasonably should know to be a criminal gang member, and from wearing or displaying items or emblems he reasonably knows to be associated with gang membership, are unconstitutionally overbroad. We will affirm the order.

I. FACTS AND PROCEDURAL HISTORY

A juvenile wardship petition filed in December 2015 under Welfare and Institutions Code section 602 alleged that appellant committed vehicle theft and received a stolen vehicle. (Veh. Code, § 10851, subd. (a); Pen. Code, § 496d, subd. (a).) Appellant admitted the vehicle theft allegation, and the other allegation was dismissed. The court ordered appellant to be released to his mother, with electronic monitoring, at the probation officer's discretion.

Another juvenile wardship petition was filed in January 2016, alleging that appellant committed felony auto burglary, felony attempted vehicle theft, and misdemeanor resisting a peace officer. (Pen. Code, § 459; Veh. Code, § 10851/Pen. Code, § 664; Pen. Code, § 148, subd. (a)(1).) Appellant admitted the attempted vehicle theft as a misdemeanor, and the remaining allegations were dismissed.

On January 28, 2016, the court adjudged appellant a ward of the court and released him to his mother's custody on probation with electronic monitoring. The conditions of his probation included that he "[n]ot be a member of, or associate with, any person the child knows, or should reasonabl[y] know, to be a member or to be involved in the activities of a criminal street gang," "[n]ot wear or display items or emblems reasonabl[y] known to be associated with . . . or symbolic of gang membership," and "[n]ot acquire any new tattoos or gang-related piercings and have any existing tattoos or piercings photographed as directed by the probation officer."

In May 2016, a supplemental petition filed under Welfare and Institutions Code section 777 requested a more restrictive placement for appellant on the allegation that he violated his probation, in that he left his home and his whereabouts were unknown. Appellant admitted the violation. At a disposition hearing on June 24, 2016, the court continued appellant as a ward of the court, removed him from his mother's custody for placement in a drug treatment facility, and continued probation on the previously-imposed conditions.

Appellant filed a notice of appeal from the disposition order.

II. DISCUSSION

Respondent contends appellant forfeited his challenge to the probation conditions because neither he nor his attorney objected to the conditions when they were carried forward from his prior disposition. Appellant counters that a challenge on constitutional grounds is not forfeited, and even if it were, his counsel was ineffective. We need not address the forfeiture issue: if there was no forfeiture, we would consider the merits of appellant's argument concerning the propriety of the probation conditions; if there was a forfeiture, we would consider the propriety of the probation conditions anyway, under an ineffective assistance analysis. We will therefore proceed directly to the merits.

A. Law

Under Welfare and Institutions Code section 730, subdivision (b), the juvenile 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." "`A condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality."'" (In re R.V. (2009) 171 Cal.App.4th 239, 246 (R.V.), quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent). Italics added.) This Lent test applies to juvenile court disposition orders, and we review the court's imposition of probation conditions for an abuse of discretion. (In re Josh W. (1997) 55 Cal.App.4th 1, 5-6.)

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." (In re Sheena K. (2007) 40 Cal.4th 875, 889.) If the probation condition limits constitutional rights, it must be closely tailored to its purpose. (Id. at p. 890.)

B. Analysis

The gang conditions imposed on appellant's probation are valid under Lent. In light of the second Lent factor, the conditions are valid because they relate to conduct that is criminal, to the extent they preclude membership in a criminal street gang. In light of the third Lent factor, all of the gang conditions are valid because they forbid conduct that is reasonably related to future criminality: associating with gang members, displaying gang colors or emblems, and acquiring gang-related piercings or tattoos all reflect (or risk) involvement in the criminal conduct of criminal street gangs.

Appellant nevertheless contends the gang conditions are overbroad and not narrowly tailored to a rehabilitative purpose. In particular, he asserts that he only admitted an attempted joyriding, he had no prior juvenile referrals, there was no suggestion of any risk of gang affiliation in the probation or police reports, and his mother did not believe he was in a gang.

But appellant did not merely attempt to go joyriding. He admittedly committed vehicle theft on one occasion, perpetrated an attempted vehicle theft on another occasion, and subsequently left home in violation of his probation. Although the probation report did not expressly state that he was in a gang or susceptible to gang influence, it indicated that he "does not have a relationship with his father and does not have a role model," he is usually "wandering around the streets" when not at home, and his mother "has seen him with some youth that she wasn't familiar with." From this evidence, along with the fact that appellant chose to flee his mother's supervision, it would not be unreasonable for the juvenile court to discern a risk of gang influence or association. Certainly the court did not have to wait until appellant developed gang ties to preclude him from doing so.

Appellant next contends that the probation condition prohibiting him from wearing or displaying an item or emblem reasonably known to be associated with gang membership is not sufficiently precise for him to know what is required of him, or for a court to determine whether the condition has been violated. (Citing In re Sheena K., supra, 40 Cal.4th at p. 890.) He claims that "[a]lmost anything can be an item or emblem associated with or symbolic of gang membership." However, the article that he cites in his brief as support for his argument is not in the appellate record, and there is no indication it was presented to the trial court. Moreover, appellant's probation would not be revoked unless he willfully violated its terms. (See People v. Cervantes (2009) 175 Cal.App.4th 291, 295; People v. Galvan (2007) 155 Cal.App.4th 978, 983.) The probation condition only prohibits "wear[ing] or display[ing] items or emblems reasonabl[y] known to be associated with . . . or symbolic of gang membership," and he fails to establish it is unconstitutionally imprecise. (Italics added.)

Appellant also argues that the probation conditions impinge upon his First Amendment right to freedom of expression and association and his constitutional right to possess property. However, he provides no authority for the proposition that a probation condition prohibiting a juvenile ward from associating with persons he reasonably knows to be gang members, and wearing or displaying items or emblems he reasonably knows to be associated with gang membership, violates any right of the juvenile to associate with whomever he wants or wear whatever he wants. Juvenile courts have broad leeway to impose conditions aimed at a minor's rehabilitation. (See In re Todd L. (1980) 113 Cal.App.3d 14, 19 [a probation condition that is impermissible for an adult defendant is not necessarily unreasonable for a juvenile defendant]; In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153 [because of its rehabilitative function, the juvenile court has broad discretion to impose probation conditions that may not be imposed on adults].)

Lastly, appellant argues that the gang conditions serve the same purpose, but are not as narrowly drawn, as other conditions imposed on his probation, such as the conditions prohibiting him from associating with anyone who uses or possesses dangerous weapons, possesses tools for burglary or auto theft, or uses, deals or possesses illegal drugs. But the dangers of gang association and its influence on appellant's rehabilitation are broader than the dangers of associating with persons who use or possess weapons, burglary or auto theft tools, or drugs. The conditions aimed at the risk inherent in gang associations are reasonably related and tailored to appellant's rehabilitation and the prevention of future criminality.

Appellant has failed to establish error.

III. DISPOSITION

The order is affirmed.

SIMONS, ACTING P.J. and BRUINIERS, J., concurs.


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