In re Britney M.






Filed 1/27/11 In re Britney M. CA1/2




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re BRITNEY M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. BRITNEY M., Defendant and Appellant.	A128481 (Alameda County Super. Ct. No. SJ07008657)

Britney M. appeals from orders of the juvenile court declaring her a ward of the court after sustaining allegations that she committed a battery and engaged in a fight on school grounds. She contends the court erred in requiring her to submit to warrantless searches as a condition of probation. We affirm.
STATEMENT OF THE CASE
On November 4, 2009, a Welfare and Institutions Code section 602 petition was filed in Alameda County alleging that Britney M. had committed violations of Penal Code sections 243.2 (battery committed on school property) and 415, subdivision (1) (unlawful fighting or challenging another to fight in a public place). After a contested jurisdictional hearing on March 22, 2010, the court sustained the allegations. At the dispositional hearing on May 7, 2010, appellant was adjudged a ward of the court and placed on probation, to reside in her parents’ home.
Appellant filed a timely notice of appeal on May 10, 2010.
STATEMENT OF FACTS
Yazmin D. testified that on October 16, 2009, when she got out of her first period class in high school, appellant was waiting for her. Appellant asked why Yazmin was talking about her, and Yazmin asked what appellant was talking about. She turned to face appellant and appellant punched her in the eye with a closed fist, then threw her on the floor. Appellant got on top of Yazmin, put a sweater over her face, and hit her more than five times. Yazmin denied hitting or pushing appellant, or fighting back. Yazmin acknowledged that she had been having problems with appellant since the year before over a boy named David, but denied that she had been pushing and bullying appellant.
Brenda G. testified that she saw appellant come up to Yazmin and the two begin to argue. Brenda saw appellant punch Yazmin, but did not see what happened next. Fabiola G. also saw appellant walk up and punch Yazmin, and saw appellant on top of Yazmin, hitting her five to 10 times. She did not see Yazmin push appellant or fight back, but saw her struggling with the sweater that someone other than appellant put on her face.
Police Officer Tina Knutson, the school resource officer at the high school, testified that Yazmin reported appellant having attacked her after first period. Neither appellant nor her mother said Yazmin had pushed appellant before appellant punched Yazmin, and Knutson did not remember appellant telling her anything about the incident that appellant did not write in her statement.
Appellant testified that Yazmin had been bullying her, pushing her, and bumping into her since the prior school year, over a boy named David who started dating appellant after previously dating Yazmin. On October 16, appellant was walking out of first period art class ahead of Yazmin. and Yazmin shoved her out of the way. Appellant punched Yazmin, thinking it was in self defense. Yazmin fell and appellant continued hitting her, with Yazmin fighting back by pulling appellant’s hair and slapping her. Appellant testified that she did not write in her statement about the incident that Yazmin had pushed her, but she told Officer Knutson this after her mother arrived at school. Appellant did not write in her statement that she punched Yazmin, but she told this to Officer Knutson.
Daniela M. testified that as she was walking to class, she saw a girl push appellant and appellant punch the girl. She saw the two fight on the ground a bit, then appellant tried to leave and the girl would not let her go. She did not see appellant throw a sweater on the girl.
The court found that appellant’s declaration just after the incident was inconsistent with her testimony, that Yazmin pushed appellant before appellant punched Yazmin, and found the allegations true beyond a reasonable doubt.
DISCUSSION
Appellant contends the trial court abused its discretion in imposing as a condition of probation that she consent to a search of her person, vehicle, property and place of residence at the direction of a probation or peace officer at any time, with or without a warrant, and with or without probable or reasonable cause. She argues this condition was unrelated to her or her offense. When she objected to this condition, which was included in the recommended terms of probation, the juvenile court responded: “[Appellant] has been in this system back on December of 2007. She’s been around here for a long time. And we want to make sure that she develops herself better and progresses herself so that she will never have to be back here.”
“Section 730, subdivision (b) authorizes 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.’ A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. (In re Tanya B. (1996) 43 Cal.App.4th 1, 7.) That discretion will not be disturbed in the absence of manifest abuse. (Ibid.)” (In re Josh W. (1997) 55 Cal.App.4th 1, 5; In re G.V. (2008) 167 Cal.App.4th 1244, 1250.) “A probation condition will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct that is not itself criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486; In re Antonio C. (2000) 83 Cal.App.4th 1029, 1034.)” (In re G.V., at p. 1250.)
“In fashioning the conditions of probation, the juvenile court should consider the minor’s entire social history in addition to the circumstances of the crime. (In re Todd L. (1980) 113 Cal.App.3d 14, 20.)” (In re Walter P. (2009) 170 Cal.App.4th 95, 100; People v. Tyrell (1994) 8 Cal.4th 68, 81-82, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.) “Thus, ‘[a] condition of probation which is [legally] impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.’ ([In re Todd L.,] at p. 19.)” (In re Walter P., at p. 100.) “[J]uvenile conditions may be broader than those pertaining to adult offenders . . . because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may ‘curtail a child’s exercise of the constitutional rights . . . [because a] parent’s own constitutionally protected “liberty” includes the right to “bring up children” [citation,] and to “direct the upbringing and education of children.” [Citation.]’ ([In re Frank V. (1991) 233 Cal.App.3d 1232,] 1243; In re Roger S. (1977) 19 Cal.3d 921, 928.)” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)
With respect to search conditions in particular, “[a]s our Supreme Court has recently (and repeatedly) made clear, a warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer ‘obey all laws.’ Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms: ‘The threat of a suspicionless search is fully consistent with the deterrent purposes of the search condition. “ ‘The purpose of an unexpected, unprovoked search of defendant is to ascertain whether [the probationer] is complying with the terms of [probation]; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant . . . .’ ” [Citations.]’ (People v. Reyes (1998) 19 Cal.4th 743, 752.)” (People v. Balestra (1999) 76 Cal.App.4th 57, 67, italics and fn. omitted.)
“[P]robation conditions authorizing searches ‘aid in deterring further offenses . . . and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.’ (People v. Robles (2000) 23 Cal.4th 789, 795.) A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, ‘reasonably related to future criminality.’ (See, e.g., People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 [affirming probation condition requiring the defendant to ‘ “follow such course of conduct as the probation officer prescribes” ’ as reasonable and necessary to enable the probation department to supervise compliance with specific conditions of probation]; [People v.] Balestra, supra, 76 Cal.App.4th at pp. 65-67 [upholding warrantless search condition that served valid rehabilitative purpose of helping probation officer ensure that probationer obeys all laws].)” (People v. Olguin (2008) 45 Cal.4th 375, 380-381.)
Here, as the trial court recognized, appellant had a history with the Department. In June 2007, she was charged in Stanislaus County with posing as a kidnapper (Pen. Code, § 210) and falsely reporting an emergency (Pen. Code, § 148.3, subd. (a)) after she and her cousin Meranda left a mall with two males and Meranda and the males sent text messages to the Meranda’s father saying the girls had been kidnapped and would be killed unless the kidnappers were given $2,000. During the investigation, appellant admitted the false kidnapping was her idea. Appellant spent three days in custody and was released; she admitted a misdemeanor violation of Penal Code section 148.3, subdivision (a), the Penal Code section 210 allegation was dismissed, and the case subsequently was transferred to Alameda County, where appellant was placed on probation without wardship (Welf. & Inst. Code, § 725, subd. (a)). Her probation was terminated at the end of July 2008.
In November 2009, the jurisdictional report for the present petition related that appellant had poor grades (mainly D’s and F’s) and several disciplinary actions at school. Prior to the fight on October 16, school records reflected a long list of conferences, detentions and suspensions for unexcused absences, tardiness, disruptive and defiant behavior, bullying and harassment. The May 2010 disposition report noted that appellant had been suspended for five days for having alcohol on campus and admitted consuming the alcohol to Officer Knutson, but in the dispositional interview she told the probation officer she never used drugs or alcohol.
In challenging the search condition, appellant focuses entirely on the facts of her current offense, arguing that because it was an unarmed battery, the search condition bears no relationship to the offense. She relies upon In re Martinez (1978) 86 Cal.App.3d 577, in which an adult defendant was convicted of misdemeanor battery on a police officer after throwing a bottle that shattered against a police vehicle, while two officers were trying to impound an illegally parked vehicle amid a crowd of some 50 young people yelling obscenities and throwing beer cans and bottles. In re Martinez invalidated a warrantless search condition because, on the “unique” facts of that case, including that the defendant did not use a concealed weapon, was convicted of a misdemeanor offense, and had nothing in his history to suggest the offense was anything other than an isolated incident, the search condition was not reasonably related to the offense or future criminality. (Id. at pp. 582-583.)
In re Abdirahman S. (1997) 58 Cal.App.4th 963 distinguished In re Martinez in upholding a search condition for a juvenile found to have committed misdemeanor assault based on his having handed a chunk of asphalt to a classmate who used it to injure a third classmate whom the second had previously threatened. The juvenile relied upon In re Martinez and another case, which similarly found a search condition improper where the defendant did not have a propensity to use a concealed weapon in the future. In re Abdirahman S. upheld the search condition on the basis that, as stated above, “ ‘[a] condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.’ (In re Todd L.[, supra,] 113 Cal.App.3d 14, 19.)” (In re Abdirahman S., at p. 969; In re Byron B. (2004) 119 Cal.App.4th 1013, 1016.)
In the present case, although appellant’s offense did not involve use of a weapon, her history clearly reflected a risk of escalating delinquency. As discussed above, a warrantless search condition serves a rehabilitative purpose in ensuring that the subject complies with the general requirement of obeying all laws. (People v. Balestra, supra, 76 Cal.App.4th at p. 67.) In light of appellant’s entire history, including her alcohol


possession and use, imposition of the warrantless search condition was not an abuse of discretion.
The orders are affirmed.





_________________________
Kline, P.J.


We concur:


_________________________
Haerle, J.


_________________________
Richman, J.


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