In re Michael S.

Filed 8/25/08 In re Michael S. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Michael S. appeals the juvenile court's dispositional order declaring him a ward of the court and placing him on probation. (Welf. & Inst. Code, 602.) He contends that the trial court abused its discretion by imposing terms of probation that prohibited him from possessing tagging and graffiti-producing devices and associating with members of tagging groups. We affirm.

FACTS AND PROCEDURAL HISTORY

In May 2007, Michael S. was apprehended in his high school in possession of a substantial amount of Vicodin, Darvocet and morphine, and a list of prescription drugs including a price per pill. In June, the district attorney filed a Welfare and Institutions Code section 602 petition alleging possession of a controlled substance (Health & Saf. Code,  11350, subd. (a)) and possession of a controlled substance for sale (Health & Saf. Code,  11351). The petition was sustained when Michael admitted possession of drugs for sale. The possession charge was dismissed with consideration, and entry of judgment was deferred.

On two occasions during the early morning hours of the same day in September 2007, sheriff's deputies responded to family disturbances at Michael's residence. When his mother attempted to confiscate a bag of unprescribed Zanax pills from Michael, Michael punched and kicked holes in the walls of his home, threw furniture and the telephone, and threatened his mother with a knife and a lock he had placed in a bandana. Due to his mother's entreaties, the deputies did not arrest Michael at that time, but were forced to return less than an hour later when Michael resumed his threats and violent behavior.

On September 18, 2007, the district attorney filed a section 602 petition against Michael S. alleging criminal threats (Pen. Code,  422), vandalism over $400 (Pen. Code,  594, subd. (b)(1)), resisting arrest (Pen. Code,  148, subd. (a)(1)), and exhibiting a deadly weapon (Pen. Code,  417, subd. (a)(1)). The petition was sustained when Michael admitted exhibiting a deadly weapon. The other charges were dismissed, and deferred entry of judgment was revoked.

At the October 25, 2007, disposition hearing, the juvenile court declared Michael to be a ward of the court, ruled that the possession for sale charge was a felony, and set the maximum term of physical confinement at four years two months. The court placed Michael on probation subject to a variety of conditions, including conditions 41 and 42 that are the subject of the instant appeal. Condition 41 provides that Michael "shall not belong to, or associate with members of any tagging group, gang or crew including, but not limited to the members of the Camarillo Kings." Condition 42 provides that Michael "shall not use or possess any papers, drawings, photographs, or any other items containing tagging, spray paint, paint nozzles, markers, etching instruments or other graffiti-producing devices."

DISCUSSION

Michael S. contends that the probation conditions prohibiting him from possessing tagging and graffiti-producing materials and associating with tagging groups are invalid because his offenses did not relate to tagging, the conditions covered conduct that is not criminal, and there is no evidence that the conditions related to future criminality. We disagree, and conclude that the juvenile court did not abuse its discretion in imposing those conditions. (In re Christopher M. (2005) 127 Cal.App.4th 684, 692 [determination of probation conditions reviewed under abuse of discretion standard].)

As Michael S. argues, a condition of probation is invalid if it has no relationship to the crime, relates to conduct that is not itself criminal, and forbids conduct unrelated to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) Juvenile probation conditions, however, may be broader than those pertaining to adult offenders. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) The juvenile court may impose any reasonable condition that enhances the reformation and rehabilitation of the minor even if the condition curtails the minor's constitutional rights. (Ibid.; Welf. & Inst. Code, 730, subd. (b).) Also, because juveniles are deemed to be more in need of guidance and supervision than adults, the juvenile court may and should consider the minor's entire social history and not only the circumstances of the crime. (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153.) The court may rely on the reports of the probation department in assessing what conduct is likely to influence the minor to commit further bad acts. (See In re Frank V. (1991) 233 Cal.App.3d 1232, 1243.)

The record shows that Michael has drug and alcohol abuse problems, and has exhibited violent behavior towards his mother. The record also shows that, although his offenses did not involve tagging, he had begun associating with a tagging crew called the Camarillo Kings at the time his behavior began to deteriorate in the months before the June 2007 petition was filed. Michael admitted that he spent time with members of the crew on a regular basis. In addition, although Michael claimed he did not tag himself, a probation officer found permanent black markers, a can of spray chalk, and a sheet of paper with tagging and a reference to "Camarillo Kings" in Michael's room during an unscheduled home visit.

These facts are sufficient to warrant the imposition of probation conditions designed to direct Michael away from tagging and association with taggers despite the absence of a sustained petition against Michael for a tagging or tagging-related offense. Even if Michael's involvement with tagging was limited, his behavior has become increasingly uncontrollable and reveals a significant danger that he will succumb to pressures from taggers. The juvenile court is not required to wait until a minor has become entrenched in criminal activity before imposing prophylactic remedies to foster rehabilitation and deter future criminality. In this case, the juvenile court did not abuse its discretion by imposing the tagging-related probation conditions.

Michael argues that the condition regarding possession of tagging-related material is invalid because it covers a variety of lawful implements and legitimate activity and violates his constitutional right to artistic expression. Although not supported by the record as a whole, trial counsel argued that cartooning was a hobby of Michael's. The juvenile court, however, could reasonably conclude that the implements covered by the probation condition were typically used by taggers, not cartoonists, and that the condition would not prevent Michael from expressing himself with other drawing implements. In addition, the state's interest in the protection of children justifies a restriction on Michael's freedom of expression that, as in this case, does not unduly burden his constitutional rights. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1034.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Manuel J. Covarrubias, Judge

Superior Court County of Ventura

______________________________

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.

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