>

>In re
Cynthia L.

























Filed 4/24/13 In re Cynthia L. CA5

















NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT




>

In re CYNTHIA L., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA L., Defendant and Appellant.	F064829 (Super. Ct. No. 510856) >OPINION

>THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Stanislaus
County. Susan D. Siefkin, Judge.

Suzanne M.
Morris, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.



>-ooOoo-

In July
2011, appellant, Cynthia L., a minor, pled no contest to a single count of href="http://www.mcmillanlaw.com/">attempted first degree burglary (Pen.
Code, §§ 459, 460, subd. (a), 664). In
August 2011, the juvenile court adjudged appellant a ward of the court and
placed her on probation, with various terms and conditions.

In April
2012, a supplemental wardship petition
(Welf. & Inst. Code, § 777) was filed in which it was alleged appellant
committed multiple noncriminal violations of probation; appellant admitted the
allegations; and the court continued appellant as a ward of the court and
continued her on probation. Her
conditions of probation included several that refer to href="http://www.mcmillanlaw.com/">criminal street gangs that had not been
previously imposed, including the directive that she “not associate or
communicate with any person that [she] know[s] is a gang member ....”href="#_ftn2" name="_ftnref2" title="">^[1]

On appeal,
appellant contends the gang association condition is unconstitutionally
overbroad. We affirm.

FACTUAL AND PROCEDURAL BACKGROUNDhref="#_ftn3" name="_ftnref3" title="">^[2]>

The Attempted Burglary

A detention
report stated that according to a Modesto Police Department (MPD) report, the
victims of the offense told police the following occurred on November 2,
2010: “[Appellant] came to their front
door and they thought she was soliciting so they did not answer the door. A short time later, [appellant’s] father Jose
was attempting to break the glass on the back door to gain entry. Once Jose saw the victims in the residence he
fled.”



The Instant Probation Violations

The
conditions of probation imposed following appellant’s adjudication of attempted
burglary included the following: She was
to (1) attend school, (2) be in her home between the hours of 9:00 p.m. and
6:00 a.m. unless in the company of her parents, and (3) complete 15 hours of
community service by March 27, 2012.

“According
to school records from the Peterson Alternative Center Education (PACE) dated
April 5, 2012, [appellant] was dropped from enrollment on March 22, 2012, due
to excessive absences.”

On March
12, 2012, a probation officer made contact with appellant’s mother at
appellant’s last known address.
Appellant’s mother told the officer she “had not seen [appellant] ‘in a
while.’” Appellant was arrested at another
location on April 4, 2012. She told the
officer she had been staying at that location with a friend for approximately
one month.

On March 13, 2012, the “coordinator
of community service” informed the probation officer that numerous attempts to
set up an appointment with appellant “to sign [her] up for her community
service hours” had been unsuccessful, and appellant had “not submitted proof of
completion of community service.”

Additional Background

At the time
of the disposition hearing in April 2012, appellant, then 17 years old, was
approximately eight months pregnant. The
“presumed biological father” of the then-unborn child is appellant’s boyfriend,
K.S. (K.).

With regard
to “peer influence and associations,” appellant told the probation officer “she
only has one friend and would just ‘hang out’ with [K.],” and she “is aware
[K.] is not a good influence on her as he is on probation and is currently
incarcerated in juvenile hall.”href="#_ftn4"
name="_ftnref4" title="">^[3] Appellant “denied ever associating with a
gang.” She told the probation officer,
“‘My mom’s side of the family are Northerners and my dad’s side of the family
are Southerners.’” She also stated that
both her father and her brother are “involved with Northern and Southern gangs.” An MPD report stated that appellant’s father,
during the booking process following his arrest for the attempted burglary
discussed above, stated he was a “Southerner,” and that he was “classified as
such and placed with people of similar gang affiliation.”

Appellant’s
mother told the probation officer the following: Appellant “has a lot of friends” who are
“Northerners.” Appellant “is not a
member ... but she does hang out with them.”
Appellant “‘has Northerner songs on [her mother’s] phone.’” Appellant’s mother “‘didn’t allow her to wear
red over here.’” Appellant “was doing
good” on probation; she “wasn’t out there getting into trouble.” However, “once [K.] got out, it was all about
[K.]”

The Disposition Hearinghref="#_ftn5" name="_ftnref5" title="">^[4]>

The court noted that gang
conditions had not previously been imposed, at which point the following
exchange occurred:

“THE COURT: Is there a basis for ordering [gang
conditions] now?

“[Appellant]: My boyfriend.

“MS. VARNER [probation
officer]: By association. So her boyfriend, the father of the
child.”

Appellant confirmed, “... my
boyfriend is a gang member.”

Defense counsel objected to the
gang conditions.

DISCUSSION

Appellant
contends the gang association condition is unconstitutionally overbroad
because, she asserts, it (1) impinges on her constitutional rights to freedom
of association and assembly, (2) is not “reasonably related to present or
future delinquent conduct,” and (3) is not “narrowly tailored to the reason for
the restriction or appellant’s individual needs.” (Boldface omitted.)

Legal Background

Welfare and Institutions Code
section 730 provides, in relevant part:
“The [juvenile] court may impose and require any and all reasonable
conditions [of probation] that it may determine fitting and proper to the end
that justice may be done and the reformation and rehabilitation of the ward
enhanced.” “[J]uvenile probation
conditions must be judged by the same three-part standard applied to adult
probation conditions under [People v.]
Lent [(1975)] 15 Cal.3d 481: ‘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 ....” [Citations.]’” (In re
D.G. (2010) 187 Cal.App.4th 47, 52-53.)
Under this test, “All three requirements must be met before the
condition is invalidated.” (>In re Frank V. (1991) 233 Cal.App.3d
1232, 1242.)

“The juvenile court has wide
discretion to select appropriate conditions ....” (In re
Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena
K.).) “Although the goal of both
[juvenile and adult] 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; it is an ingredient of a final order for the minor’s
reformation and rehabilitation.’
[Citation.] ... [¶] 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.” (In re
Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds by >In re Jaime P. (2006) 40 Cal.4th 128,
139.)

However, a court’s discretion is
not boundless. “‘“‘Where a condition of
probation requires a waiver of precious constitutional rights, the condition
must be narrowly drawn....’”’” (>In re Frank V., supra, 233 Cal.App.3d at p. 1242.)
“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.” (Sheena
K., supra, 40 Cal.4th at p.
890.) “A restriction is
unconstitutionally overbroad ... if it (1) ‘impinge[s] on constitutional
rights,’ and (2) is not ‘tailored carefully and reasonably related to the
compelling state interest in reformation and rehabilitation.’ [Citations.]
The essential question in an overbreadth challenge is the closeness of
the fit between the legitimate purpose of the restriction and the burden it
imposes on the defendant’s constitutional rights—bearing in mind, of course,
that perfection in such matters is impossible, and that practical necessity
will justify some infringement.” (>In re E.O. (2010) 188 Cal.App.4th 1149,
1153 (E.O.).)

Analysis

As
indicated above, appellant’s constitutional overbreadth challenge to the gang
association condition is premised on three claims, viz., the claims that the
condition (1) impinges on constitutional rights, (2) is not reasonably related
to present or future delinquent conduct, and (3) is not sufficiently narrowly
drawn. The first of these is
correct. As the People effectively
concede, the gang association condition impinges on appellant’s First Amendment
rights of association and assembly.
However, appellant’s remaining two points, which we address in turn, are
not well taken.

Relation of Gang
Association Condition to Present and Future Criminality

Appellant
contends the gang association condition “is not reasonably related to present
or future delinquent conduct” because there was no indication that either the
underlying attempted burglary or appellant’s subsequent misconduct were “gang
related or influenced” or “the product of gang associations.” (Boldface omitted.)

We assume
without deciding that neither the instant offense nor appellant’s probation
violations were gang related, and that therefore the gang association condition
is not reasonably related to present
delinquent conduct, but as we explain below, we conclude the challenged
condition is reasonably related to future
criminality. On this point, we find
instructive In re Laylah K. (1991)
229 Cal.App.3d 1496 (Laylah K.).

In that case, two minors were
adjudicated of various offenses based on an incident in which the minors, who
had friends who were members of the Crips gang, accosted a woman on the street,
demanded to know why she was wearing an article of red clothing—red being a
color associated with a rival gang—and challenged her to fight. The minors argued that they were not gang members and therefore, the “‘Gang Terms and
Conditions of Probation’” (Laylah K.,
supra, 229 Cal.App.3d at p. 1499)
imposed there, which included a condition prohibiting the minors from> “associat[ing] with known members of
the Crips gang” (ibid.), “were not
reasonably related to their crimes or their rehabilitation” (>id. at p. 1500) and therefore were
invalid under People v. >Lent, supra, 15 Cal.3d 481 (Lent).href="#_ftn6" name="_ftnref6" title="">^[5] The court rejected the minors’ contentions. The court concluded that the minors, “[i]f
they were not already entrenched in the gang, they were well on their way[,]”
based, in part, on the following: Both
minors “admitted they had friends who were members of the Crips gang[,]”
including another minor who was with the minors in committing the adjudicated
offenses; a family member opined that the minors were “‘gang associates’”; and
the probation officer concluded that the minors, in committing the adjudicated
offenses, “participated in an apparent defense of what they perceived to be a
symbolic challenge to Crips’ territorialism.”
(Laylah K., at pp.
1500-1501.)

The court stated further: “The minors’ contention that mere association
with gang members does not justify terms aimed at known gang members is
extremely shortsighted. Association with
gang members is the first step to involvement in gang activity.... [¶]
This court has previously held that probation conditions designed to
curb dangerous associations with gangs were not unreasonable. (In re
Michael D. (1989) 214 Cal.App.3d 1610, 1617.) While Michael D. had admitted gang
affiliations, we see no logical or beneficial reason to require a court to wait
until a minor has become entrenched with a gang, only then to apply mere prophylactic
remedies. [¶] ...
[¶] … Evidence of current gang membership is not a
prerequisite to imposition of conditions designed to steer minors from [the]
destructive path [of gang membership].”
(Laylah K., >supra, 229 Cal.App.3d at pp. 1501-1502.)

We recognize that the minors in >Laylah K. exhibited a greater
involvement in and identification with a gang than that shown by
appellant. However, by the same token,
the record here indicates appellant’s relationship to a criminal street gang
went beyond simply associating with persons who happened to be gang
members. The record contains evidence
that appellant had placed “gang songs,” i.e., presumably, songs having a
special significance to gang members, on her mother’s telephone. Such an act indicates some interest, if not
actual involvement, in gang activity.
Based on this act, considered in conjunction with the evidence that
appellant had, and associated with, gang member friends, the court reasonably
could conclude that appellant, though not in the same degree of imminent danger
of “succumbing to gang pressures” (Laylah
K., supra, 229 Cal.App.3d at p.
1501) as the minors in Laylah K.,
was, at least slightly, moving in that direction. As in Laylah
K., the court was not required to wait further before imposing conditions
designed to “steer [her] from [the] destructive path [of gang
membership].” (Id. at p. 1502.) On this
record, the gang association condition was reasonably related to the prevention
of future criminal behavior, and
therefore also reasonably related to “‘the compelling state interest in
reformation and rehabilitation.’” (>E.O., supra, 188 Cal.App.4th at p. 1153.)


Overbreadth

Appellant
contends the gang association condition was “not narrowly tailored to address
[her] unique needs” because it would prevent contact with her father, her
brother, the father of her soon-to-be-born child, at a time when, given that
she was soon to give birth, contact with such persons is particularly important
to appellant.

The factors
cited by appellant support what is not disputed: The gang condition impinges on important
constitutional rights. However, these
factors do not establish that the challenged condition imposes limitations on
constitutional rights that are not “closely tailor[ed] ... to the purpose of
the condition ....” (>Sheena K., supra, 40 Cal.4th at p. 890.)
Here, the purpose of the condition is to foster appellant’s
rehabilitation and to protect public safety by preventing appellant, who, as
demonstrated above, has associated with gang member friends and has shown an
interest in gang culture, from going any further down the path to gang
involvement. A condition directed at
preventing gang involvement that accomplishes this aim by prohibiting association
with gang members is carefully tailored to its purpose. It is not overbroad.

DISPOSITION

The
judgment is affirmed.

---

id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">^* Before
Wiseman, Acting P.J., Poochigian, J., and Peña, J.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">^[1] We
refer to this condition of probation as the “gang association condition.”