In re J.T.
Filed 4/3/12 In re J.T. CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
In re J.T.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.T.,
Defendant and Appellant.
A132361
(Contra
Costa County
Super. Ct.
No. J1100646)
After
defendant J.T. pleaded no contest to second
degree burglary (Pen. Code, §§ 459, 460, subd. (b)), the juvenile
court committed him for six months to the county
imposed probation on numerous terms and conditions, including “gang” terms and
a prohibition against possessing or using “weapons” or “burglary tools.” Defendant challenges these probation
conditions. We modify the weapon and
burglary tools prohibition to include a “knowledge” requirement and otherwise
affirm the probation conditions.
Background
On April 14, 2011, the
County District Attorney filed a delinquency petition (Welf. & Inst. Code,
§ 602, subd. (a)) alleging defendant, then aged 16, committed residential
burglary (Pen. Code, §§ 459, 460, subd. (a)).
On April 22, 2011, pursuant to an
agreement by the prosecutor to reduce the charge to second degree burglary if
defendant assisted in the recovery of the stolen items, defendant pleaded no
contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)).
At
the time of his plea, defendant was in custody.
When he sought release pending disposition, the probation officer
objected. Among other things, the
officer stated defendant was habitually truant from school, used marijuana,
failed to abide by any parental direction from his mother and “he associates
with gangs.” Defendant’s counsel did not
take issue with the probation officer’s statements.
However,
defendant’s release was part of the negotiated disposition, and the court
therefore inquired whether specific interim conditions, including “no gang
affiliations,” were necessary if defendant was released on electronic monitoring. The prosecutor responded that numerous terms
and conditions, including “gang” terms, “are all terms and conditions of JEM
[juvenile electronic monitoring], so if you order him to comply with the rules
of JEM they are on the sheet.”
On May 20, 2011, defendant appeared for
disposition. On the prosecution’s motion
based on the defendant’s assistance in recovering the stolen items, the
juvenile court reduced the burglary to a misdemeanor. The court then proceeded with disposition,
ordering that defendant be removed from his parents (Welf. & Inst. Code,
§ 726, subd. (a)(3)), placed in the Orin Allen Youth Rehabilitation
Facility for a six-month regular program plus a 90-day conditional
release/parole period, and subject to numerous probation conditions, including
“gang” terms
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or using any “weapons” or “burglary tools.”
Defendant’s counsel stated “we’ll object to the gang clause and
restitution,” but did not specify the reason or ground for the objection.
Defendant
filed a timely notice of appeal on May
23, 2011.
Discussion
Standard of Review
“Under
Welfare and Institutions Code section 730, subdivision (b) the juvenile court
‘may 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
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.]
All three factors must be present to invalidate a condition of
probation.” (In re R.V. (2009) 171 Cal.App.4th 239, 246.) “ ‘An appellate court will not disturb
the juvenile court’s broad discretion over probation conditions absent an abuse
of discretion. [Citations.] We grant this broad discretion so that the
juvenile court may serve its rehabilitative function and further the
legislative policies of the juvenile court system.’ ” (Ibid.)
“
‘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. [Citation.] 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.” ’
[Citation.]” (
p. 246.) “ ‘In distinguishing
between the permissible exercise of discretion in probationary sentencing by
the juvenile court and that allowed in “adult” court, we have advised that,
“[a]lthough the goal of both types of 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 . . . .
.’ [¶] 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.” ’ [Citation.]
‘[J]uvenile conditions may be broader than those pertaining to adult
offenders. This is 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.’ [Citation.]” (Id.
at pp. 246-247.)
“ ‘[W]hen
the state asserts jurisdiction over a minor, it stands in the shoes of the
parents. A parent may curtail a child’s
exercise of constitutional rights because a parent’s own constitutionally
protected “ ‘ “liberty” ’ ” includes the right to “ ‘ “bring up
children” ’ ” and to “ ‘ “direct the upbringing and education of
children.” ’ ” ’ [Citation.]” (In re
R.V., supra, 171 Cal.App.4th at p. 248.) The juvenile court may therefore
“ ‘impose probation conditions that infringe on constitutional rights if
the conditions are tailored to meet the needs of the minor.’ [Citation.]”
(Ibid.)
“Gang” Conditions
The appellate courts have routinely
allowed “gang” probation conditions where there is some evidence connecting the
juvenile defendant with a gang, gang members, or gang activity. (E.g., In
re Shaun R. (2010) 188 Cal.App.4th 1129, 1134-1136 [when arrested, minor
was wearing gang clothing, had gang references on his cell phone, and had two
gang-associated tattoos, and admitted gang affiliation]; In re Michael D. (1989) 214 Cal.App.3d 1610, 1616 [minor was a
self-confessed member of local gang]; In
re Vincent G. (2008) 162 Cal.App.4th 238, 242 [minor wore gang colors
and gang paraphernalia including a belt buckle with the letter “N”];
229 Cal.App.3d 1496, 1500-1501, disapproved on other grounds in
962, fn. 2, 983, fn. 13, [minors asked assault victim why she was wearing
red clothing, minors’ aunt said minors associated with gang members, minors
admitted to having friends who were gang members, one minor admitted a gang
member was with the minors when they committed the assault, one minor had
stopped attending school, the other was frequently truant, and they were
runaways and beyond their parents’ control].)
“Association with gang members is the first step to involvement in gang
activity.” (In re Laylah K., supra, at p. 1501.) Accordingly, the condition may be reasonably
related to preventing future unlawful conduct.
(Ibid.)
Defendant
contends no evidence supports “gang” conditions in this case. To begin with, defendant has waived this
assertion by failing to adequately object to the conditions in the juvenile
court. His counsel’s generic assertion
“we would object” did not identify the ground(s) on which the objection was
made and thus failed to apprise the court of the asserted problem with the
condition (i.e., did defendant contend it was unsupported and therefore
unreasonable, or did he contend it was impermissibly vague). (See People
v. De Soto (1997) 54 Cal.App.4th 1, 9-10 [“defendant’s general objections
did nothing to give the trial court a meaningful opportunity to correct any
sentencing errors” and he therefore waived his right to raise specific
objections on appeal]; see also
878 [failing to object to imposition of probation conditions forfeits all
claims except a challenge “based on the ground the condition is vague or
overbroad and thus facially unconstitutional”].)
There
is also evidence in the record supporting the conditions. The hearing information sheet prepared and
filed in connection with the initial detention hearing reported that defendant
admitted to associating with Sureños and Norteños, but denied gang
membership. Defendant’s counsel never
disputed the information sheet. When
defendant raised the issue of his release, following his no contest plea and
pending disposition, the probation officer opposed release for several reasons,
including because “he associates with gangs.”
Defendant’s counsel did not take issue with the probation officer’s statements. Nor did defendant take issue with the
conditions of his release on JEM pending disposition, which included “gang”
prohibitions. The probation report
prepared for disposition further stated defendant is almost never in school,
was truant and failed to appear for detention while on JEM pending disposition,
and had had 16 prior disciplinary referrals during the school year, including
for assault, disruption and defiance. He
had been “beyond” his mother’s control for a year. Given this state of the record, the “gang”
conditions have a sufficient nexus to preventing future unlawful conduct, and
the juvenile court did not abuse its discretion in imposing them.
Weapons and burglars tools
Defendant contends the probation
condition prohibiting him from using or possessing “weapons” and “burglary
tools” is unconstitutionally vague and/or overbroad. Although he did not object to this condition,
he nevertheless can pursue his vagueness challenge on appeal. (See In
re Sheena K., supra, 40 Cal.4th at p. 878.)
Although the Attorney General does not agree this condition is
unconstitutionally vague and/or overbroad without an explicit scienter
requirement, she agrees the condition “may be modified to provide that [defendant]
may not use or possess any instrument or item he knows may be used as a
burglar’s tool, or any instrument or item he knows may be used as a
weapon.” Indeed, the Attorney General
“respectfully requests” such a modification, and we will therefore order such.
Disposition
The
juvenile court’s order imposing probation conditions is modified in part to
provide that defendant may not use or possess any instrument or item he knows
may be used as a burglar’s tool, or any instrument or item he knows may be used
as a weapon. In all other respects, the
order is affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
any gang activity and shall not visit or remain in any specific location that
minor knows or Probation Officer informs minor to be an area of gang-related
activity. [¶] Minor shall not
knowingly possess, display or wear any insignia, clothing, logos, emblems,
badges or buttons, or display any gang signs or gestures that the minor knows
to be or that Probation Officer informs the minor to be gang related. [¶] The minor shall not obtain any new
tattoos. The minor shall not post,
display or transmit on or through any cellphone any symbols or information that
the minor knows to be or the Deputy Probation Officer informs the minor to be
gang related. [¶] For the purposes
of these probation conditions, the words ‘gang’ and ‘gang related’ means a
‘criminal street gang’ as defined in Penal code Section 186.22(f).”
