In re S.Z.
Filed 9/30/11 In re S.Z. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| In re S.Z., a Person Coming Under the Juvenile Court Law. | |
| THE PEOPLE, Plaintiff and Respondent, v. S.Z., Defendant and Appellant. | E052619 (Super.Ct.No. J221564) OPINION |
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
On November 1, 2010, a petition under Welfare and Institutions Code section 777 alleged that S.Z. (the minor) came within the provisions of Welfare and Institutions Code section 602, subdivision (a), because he violated the terms and conditions of his probation. The minor was charged with (1) using marijuana, a violation of probation conditions 2 and 11 (allegations 1 & 2); (2) failing to attend “NA/AA meetings,” as directed, a violation of probation condition 17 (allegation 3); and (3) failing to pay a small portion of his restitution fine in the amount of $100, a violation of probation condition 19 (allegation 4).
On November 2, 2010, following a jurisdictional hearing, the minor was continued as a ward of the court. The minor waived his constitutional rights, and admitted to allegation 1. On motion of the People, allegations 2, 3 and 4 were dismissed.
On November 23, 2010, following a dispositional hearing, the juvenile court continued the minor as a ward of the court. The court committed the minor for a period of seven years four months.
On January 3, 2011, the minor filed a timely notice of appeal. On appeal, the minor contends that the juvenile court abused its discretion in committing the minor to the Gateway Program (Gateway), and that one of the probation conditions violates his constitutional right. For the reasons set forth below, we shall affirm the judgment.
STATEMENT OF FACTS
On August 13, 2010, the minor admitted to his probation officer that he had used marijuana on the previous day. He also admitted that he had failed to enroll in school.
On September 16, 2010, the minor admitted that he had used marijuana the previous week. He was drug tested; he tested positive for marijuana and cocaine. The minor also admitted that he still had not enrolled in school.
On October 28, 2010, the minor admitted that he had not enrolled in school, and used marijuana two weeks prior to reporting to probation. He was drug tested; he tested positive for marijuana.
On October 28, 2010, the central collections database reported that the minor owed restitution in the amount of $4,362.64. He had made a total payment of $137.50, with an outstanding balance of $4,225.14.
DISCUSSION
1.
THE TRIAL COURT PROPERLY PLACED THE MINOR
The minor contends that the juvenile court abused its discretion in committing the minor to Gateway. For the reasons set forth below, we shall affirm the juvenile court’s order.
We review a placement decision only for abuse of discretion. (In re Asean D. (1993) 14 Cal.App.4th 467, 473 [Fourth Dist., Div. Two].) The court will indulge all reasonable inferences to support the decision of the juvenile court. (Ibid.) An appellate court will not lightly substitute its decision for that of the juvenile court and the decision of the court will not be disturbed unless unsupported by substantial evidence. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) Unless no rational judge could have arrived at the same conclusion, the finding must be upheld. (In re Athena P. (2002) 103 Cal.App.4th 617, 629 [Fourth Dist., Div. Two].)
“Under section 202, juvenile proceedings are primarily ‘rehabilitative’ (id., subd. (b)), and punishment in the form of ‘retribution’ is disallowed (id., subd. (e)).” (In re Eddie M. (2003) 31 Cal.4th 480, 507.) But, “[w]ithin these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. ([§ 202,] subd. (e).)” (Ibid.) “In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. [Citation.] The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind. Such was not the case before 1984.” (In re Lorenza M., supra, 212 Cal.App.3d at pp. 57-58, fn. omitted.)
The juvenile court has a wide range of options available for placing its wards, including unsupervised probation, return to the home under the supervision of a probation officer, a community care facility (§ 727, subd. (a)), “a juvenile home, ranch, camp, or forestry camp” or “the county juvenile hall” (§ 730, subd. (a)), or “the Division of Juvenile Facilities” (§ 731, subd. (a)(4)). In determining disposition, the juvenile court “shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor’s previous delinquent history.” (§ 725.5.)
In this case, the minor contends that the juvenile court abused its discretion in committing the minor to Gateway because “there is no probable benefit to the minor[;]”and “it places [the minor] with criminally sophisticated and violent juveniles[.]” We disagree.
The minor had an extensive criminal past and the programs offered at Gateway would be a benefit to the minor.
The minor had a significant criminal history. On May 23, 2008, an original petition was filed alleging that on July 11, 2007, the minor was charged with vandalism. The minor etched the words: “REKEN, RKN, RECK, and KEEPS” on the windows of Valley View High School. The damage was estimated at $5,000. The minor was arrested and booked into juvenile hall.
On December 9, 2008, a subsequent petition was filed charging the minor with possessing 28.5 grams or less of marijuana under Health and Safety Code section 11357, subdivision (b); possessing a deadly weapon under Penal Code section 12020, subdivision (a)(1); and possessing tools to commit vandalism or graffiti under Penal Code section 594.2, subdivision (a). The minor was placed on intense supervision, and probation was to continue under the original July 9, 2008 terms and conditions.
On March 21, 2009, the minor violated his probation when he was stopped in a vehicle that had six baggies of marijuana in it.
On April 28, 2009, a subsequent petition was filed charging the minor with selling and transporting marijuana under Health and Safety Code section 11360, subdivision (a); possessing marijuana for sale under Health and Safety Code section 11359; grand theft of personal property under Penal Code section 487, subdivision (a); and violating a curfew under Ontario Municipal Code section C5-7.02.
On July 8, 2009, a subsequent petition was filed charging the minor with one count of first degree burglary under Penal Code section 459. On June 23, 2009, the minor entered an unlocked apartment and stole a bottle of tequila. His fingerprints matched those taken in a previous burglary. The minor was contacted by police, arrested, and booked into juvenile hall.
On July 16, 2009, the juvenile court found that reasonable efforts had been made to prevent or eliminate the need to remove the minor from the home. The minor was placed in a foster care placement that was least restrictive or most family-like and in close proximity to his parents’ home.
On September 9, 2009, a probation violation petition was filed. The petition alleged that on September 5, 2009, the minor left his placement facility at Boy’s Republic without permission, and his whereabouts remained unknown, a violation of probation condition 38. A warrant for his arrest was requested and issued. On September 28, 2009, the minor was arrested. The minor admitted the probation violation and re-placement was ordered. The minor was placed in Philos. He completed the program and was released to his mother in June of 2010.
Once released, however, the minor slipped back into using marijuana and alcohol. He also failed to enroll in school and to attend NA/AA meetings his probation officer ordered him to complete.
Eventually, a probation violation petition was filed on November 1, 2010, as provided above. The minor admitted to allegation 1, use of marijuana in violation of his probation condition terms. At the time of the plea, the recommendation from probation was 30 days in juvenile hall with terminal disposition. The probation officer did not believe that the minor had a desire to change and thus recommended terminating juvenile jurisdiction since the minor had reached the age of 18. At the hearing on November 2, 2010, however, the prosecutor and the court asked that the minor be screened for Gateway. The minor was accepted to Gateway and the case was set for a contested disposition.
At the disposition hearing on November 23, 2010, Brenda Perez, Director of the Gateway Program and a career probation officer, testified. She stated that at Gateway, they look for older juveniles who have exhausted the services available to them through the juvenile probation department. She opined that the minor was an appropriate candidate for Gateway because of a combination of factors that included his age, level of criminal sophistication, custody time, and the fact that he was still having problems in the community and with substance abuse.
After hearing testimony and indicating that it had reviewed the detention report which recommended that the minor be committed to Gateway, the court ordered the minor placed in Gateway. The court stated that the minor would not be capable to change on his own accord. It stated that if the minor would be cut loose, given his criminal history and pattern of behavior, he would immediately re-offend and be doomed by ending up in adult court. The court opined that if he sent the minor home, that the minor would immediately start smoking marijuana.
The court went on to state that even if the minor’s view was that smoking marijuana on a daily basis was not a problem, it was a problem: “You know that skewed view of reality where you smoke marijuana every day is you can debate all you want about Prop 19, but we know that the smoking of marijuana for kids is a problem because they are not motivated and they become deadbeats.”
The court stated that the juvenile court system must press its responsibility and continue to try services that would direct the minor on a better path. It stated that the court would be failing in its responsibility if it let a defiant kid, such as the minor, direct the outcome of the proceedings. It stated that the minor should complete his high school education, but believed that the minor demonstrated that he could not do it on his own. The court stated that, by putting the minor into a structured and controlled environment such as Gateway, he would receive a high school education to achieve a high school diploma or the equivalent. Gateway would also work with the whole family and help the minor with parenting skills. The court also stated that by going to Gateway, the minor would receive job training and a real job, and become a contributing member of society.
Based on the facts summarized above, we discern no abuse of discretion by the court in committing the minor to Gateway. The court carefully weighed the options it had in placing the minor. The court, in fact, went out of its way in showing its concern for the minor’s future and how the minor would benefit from the program at Gateway. It was clearly worried that the minor would end up back in the criminal system—the next time as an adult—and hence, wanted to do what it believed to be best to rehabilitate the minor. The court, in its decision, clearly considered the safety and protection of the public, the professional help and intensive counseling available at Gateway, and the rehabilitative aspects of punishment and restitution.
Based on the above, we find that the juvenile court properly committed the minor to Gateway.
2.
THE PROBATION CONDITION IS CONSTITUTIONAL
The minor contends that probation condition 27 is unconstitutionally overbroad. Probation condition 27 states that the minor: “Not appear at any court building, including lobby, hallway, courtroom or parking lot, unless he/she is a party, defendant or subpoenaed as a witness to a court proceeding.”
A juvenile court enjoys broad discretion in fashioning probation conditions for the purpose of rehabilitation. (In re Josh W. (1997) 55 Cal.App.4th 1, 5.) Absent a manifest abuse, that discretion will not be disturbed on appeal. (Ibid.)
Welfare and Institutions Code section 730 provides, in pertinent part, that when a ward is placed under the supervision of the probation officer, “[t]he 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.” (Id., subd. (b).) “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 . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486, italics added, fn. omitted.)
In this case, the trial court imposed the courthouse prohibition as probation condition 27. The minor contends that this probation condition is unconstitutional.
A similar argument was made and rejected in In re Laylah K. (1991) 229 Cal.App.3d 1496 (Laylah K.). In that case, the court found that exclusion from the vicinity of the courthouse was related to gang association and potential intimidation of witnesses. (Id. at p. 1502.) The court made clear that the courthouse-vicinity condition was related to discouraging gang association, not the violence of the underlying crime. (Ibid.) We agree with the court in Laylah K.
As stated by the court in Laylah K., current gang membership is not a prerequisite to imposing gang-related probation conditions. (Laylah K., supra, 229 Cal.App.3d at p. 1502.) Also, if the court has genuine concerns that a minor “is in danger of falling under the influence of a street gang, an order directing a minor to refrain from gang association is a reasonable preventive measure in avoiding future criminality and setting the minor on a productive course.” (Ibid.)
Here, the minor had admitted being a member of the “FOSK” (F---ing Over Society) gang. He had gang-related paraphernalia in his room. He etched his moniker “Reken” on the windows of a high school. Although the minor, in his reply brief, argues that he is no longer affiliated with a gang and that his gang affiliation was “more bravado than actual fact[,]” the record shows that the minor admitted to being a gang member and freely etched his moniker on windows. We, therefore, reject the minor’s argument that “there is no basis for imposing the condition.”
Based on defendant’s affiliation with a gang, we find that the courthouse-prohibition condition was reasonably designed to address the problem of gang affiliation and, thus, was related to preventing future criminal behavior. (See Laylah K., supra, 229 Cal.App.3d at pp. 1502-1503.) Therefore, the court did not abuse its discretion in imposing this term.
The minor also contends that the courthouse-prohibition condition, which prohibits him from appearing at any court building unless he is a party or a subpoenaed witness to a court proceeding, is overbroad because it prohibits his presence at a court building for any purpose.
An adult probation condition is overbroad if unduly restricts the exercise of a constitutional right. “[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation . . . .’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879, quoting People v. Mason (1971) 5 Cal.3d 759, 768 (dis. opn. of Peters, J.).)
However, “[t]he juvenile court’s broad discretion to fashion appropriate conditions of probation is distinguishable from that exercised by an adult court when sentencing an adult offender to probation. Although 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; 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. [Citations.] ‘“Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation].”’ [Citations.]” (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82, overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128, 130.)
As indicated above, “[t]he restriction on court attendance is aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings.” (Laylah K., supra, 229 Cal.App.3d at p. 1502.) In light of the court’s efforts to prevent the minor from affiliating with gangs, as discussed above, we conclude that this probation condition was tailored specifically to meet the minor’s needs and was therefore valid. (In re Michael D. (1989) 214 Cal.App.3d 1610, 1616.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Ramirez
P.J.
/s/ Miller
J.
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