Filed 10/2/17 In re Aaron C. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

After Aaron C.—who has been a ward of the court since 2014—admitted his most recent probation violation, the juvenile court recommitted him to the Youth Offender Treatment Program (YOTP) and modified his probation to include various gang-related probation conditions. Aaron appeals, contending these conditions are unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Aaron—then 13 years old—admitted allegations in a wardship petition that he committed felony grand theft (Pen. Code, § 487, subd. (c))[1] and second degree burglary (§§ 459, 460, subd. (b)). Aaron later admitted allegations in a supplemental wardship petition that he possessed a firearm as a minor (§ 29610) and committed attempted grand theft (§§ 487, subd. (c), 664). In January 2014, the court declared Aaron a ward of the court (Welf. & Inst. Code, § 602), placed him on probation, and committed him to the Orin Allen Youth Rehabilitation Facility. In March 2014, Aaron admitted violating probation by hitting another ward, and the court committed him for an additional period of time.

In late 2014, Aaron admitted an allegation in a second supplemental wardship petition that he possessed a firearm as a minor (§ 29610). The court continued Aaron as a ward of the court, reinstated his probation, and placed him at the Courage to Change facility.[2] In February 2015, Aaron admitted violating probation by fighting at Courage to Change and leaving that placement. A May 2015 probation violation notice alleged Aaron had fled from Courage to Change and that his whereabouts were unknown.

In May 2016, Aaron admitted an allegation in a third supplemental wardship petition that he committed first degree burglary (§§ 459, 460, subd. (a)). The following month, the court continued Aaron as a ward of the court, reinstated him on probation, and committed him to YOTP.

September 2016 Probation Violation

In September 2016, the probation department alleged Aaron violated probation by engaging in a “physical altercation” with J.R., another YOTP resident. Aaron told probation the “altercation was not gang related” and “denied any gang affiliation. He believes other residents . . . are claiming he is a gang member to get him into trouble.” In late September 2016, Aaron admitted the probation violation and the court reinstated him on probation and recommitted him to YOTP.

The probation report recommended modifying Aaron’s probation to include conditions prohibiting him from associating with gang members, participating in gang activities, possessing gang insignia, obtaining gang tattoos, and posting gang material on social media. Probation officer Septer Abalos stated the evidence suggested Aaron “is a member of or associates with the Broad Day Killers (BDK) gang from Antioch/Pittsburg.” Abalos noted another ward at YOTP—a documented member of a BDK rival, Broad Day/Klap Shit—mentioned Aaron was “an associate of BDK. . . . [¶] Although [Aaron] denied being associated with any gang, . . . [he] referred to BDK as ‘we.’ Based on this and the information stated above, Probation believes Aaron is, at the least, an associate of BDK.”

Dispositional Hearing

Defense counsel objected to the probation department’s recommendations, arguing there was no “factual or legal basis . . . for the imposition” of the gang conditions, because Aaron had not done anything “which would indicate that there was ever any association with [a] gang at all, or that he was a gang member or an associate.” According to defense counsel, Aaron had “more of an anger control, an anger management problem, than a gang related issue.” At the court’s request, Abalos provided additional information regarding the need for the gang conditions. In a supplemental report, Abalos stated two of Aaron’s co-defendants in the 2013 incident—E.J. and R.J—were known and self-proclaimed “Knockin Niggas Instantly” gang members, and that E.J. had juvenile adjudications for criminal street gang participation (§ 186.22). Abalos also noted that an email sent to a YOTP resident and Klap Shit gang member indicated Aaron and another resident “were not getting along because [the other resident] no longer wanted to associate with BDK.” The supplemental report attached the email, which was sent through a school computer. Finally, the supplemental report stated Aaron’s most recent probation violation involved J.R., who associated with BDK’s rival gangs. According to Abalos, J.R.’s gang affiliation could have prompted the fight.

Disposition

At the dispositional hearing, defense counsel argued there was no “factual nexus” between the probation violation and the gang conditions. The court disagreed, stating: “I think the nexus is based on the violation of probation and the assault, and that is a recent nexus. [¶] I also think in supporting a gang condition for Aaron” is “his history and his original offense that brought him before the court was one that he did commit with very well-known documented gang members. At the time, the court simply posed a stay-away order from those individuals.

“What brings him now before the court to contemplate that gang term is his physical assault and engagement in that conduct at [YOTP], which I think Probation . . . has done a good job laying out a rational basis and a nexus to impose the gang conditions. [¶] So I am going to impose those conditions, as well as electronic search. [¶] . . . I think it is well documented that gang members in particular communicate via electronic means, posting photographs, communicating messages, demonstrating their loyalty and commitment to the gang . . . and it is simply a means to enforce the prohibition of gang involvement.”

The court reinstated probation and recommitted Aaron to YOTP. The court modified Aaron’s probation to include the following conditions:

(1) “You shall not knowingly associate with anyone that you know to be a gang member or associated with a gang or anyone who the probation officer informs you to be a gang member or associated with a gang.”

(2) “You shall not knowingly participate in any gang activity and shall not visit or remain in any specific location known to you to be or that the probation officer informs you to be an area of gang-related activity.”

(3) “You shall not knowingly possess, display or wear any insignia, articles of clothing, hats, caps, jackets, shoes, belts, flags, scarves, bandannas, shirts, logos, emblems, badges, buttons, music, photographs, pictures, drawings, images, lyrics, symbols, colors, numbers, monikers, patterns or brands nor display any gang signs or gestures that you know to be or that the probation officer informs to be gang related.”

(4) “You shall not obtain any new tattoos that you know to be or that the probation officer informs you to be gang related.”

(5) “You shall not knowingly post, display or transmit on any social media networking site or transmit via any electronics means, including all electronic communication devices, whether it is yours or someone else’s, any symbols, graffiti, pictures, photos, drawings, lyrics, symbols, images, hand signs or gestures or other items or information that you know to be or that the probation officer informs you to be gang related unless it is for use as part of a court-ordered or school-related educational paper or other research for educational purposes which have been approved of by the probation officer.”

“For the purposes of these probation conditions the words ‘gang’ and ‘gang related’ mean a criminal street gang as defined in . . . section 186.22(f).”

(6) “[Y]ou shall submit all electronic devices under your control to a search of any text messages, voice-mail messages, call logs, photographs, voice-mail accounts and social media accounts and provide passwords necessary to access this information to Probation or any police officer at their request in order to monitor the condition related to gang conduct.”

DISCUSSION

Aaron challenges the gang-related probation conditions. A juvenile court placing a ward on probation “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.” (Welf. & Inst. Code, § 730, subd. (b); In re Sheena K. (2007) 40 Cal.4th 875, 889.) The scope of the juvenile court’s discretion in formulating terms of a minor’s probation is greater than that allowed for adult probationers “[b]ecause wards are thought to be more in need of guidance and supervision than adults and have more circumscribed constitutional rights, and because the juvenile court stands in the shoes of a parent when it asserts jurisdiction over a minor.” (In re D.G. (2010) 187 Cal.App.4th 47, 52.) The juvenile court’s discretion, however, is not absolute. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.)

A probation condition is invalid under Lent if 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 . . . .’ ” (Lent, supra, 15 Cal.3d at p. 486.) The Lent “test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).) We review a juvenile court’s imposition of probation conditions for a “manifest abuse of discretion.” (In re G.V. (2008) 167 Cal.App.4th 1244, 1250.)

Aaron contends the gang conditions have no relationship to his September 2016 probation violation. We disagree. Aaron admitted violating probation by fighting with J.R. The probation department offered evidence that J.R. associated with BDK’s rival gangs, and that J.R.’s gang affiliation may have motivated the altercation. Although Aaron denied being a member of a gang, he used the term “we” when referring to BDK, and another YOTP resident, a gang member, stated Aaron associated with BDK. Additionally, an email sent to a YOTP resident stated Aaron and another resident were not getting along because that resident “no longer wanted to associate with BDK.” From this evidence, the court could reasonably conclude the gang conditions bore a relationship to Aaron’s probation violation. Aaron’s attack on the reliability of the evidence is not persuasive.

We reject Aaron’s claims that the gang conditions “relate to conduct which is not in itself criminal” and “have no reasonable relationship to future criminality.” “Association with gang members is the first step to involvement in gang activity. And, under . . . section 186.22, active participation in a street gang, defined as a criminal enterprise, is a crime.” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1501 (Laylah K.), disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2.) Courts have “held that probation conditions designed to curb dangerous associations with gangs [are] not unreasonable.” (Laylah K, at p. 1501; In re Michael D. (1989) 214 Cal.App.3d 1610, 1617.) Thus, prohibition conditions barring gang-related activities “have been found to be ‘reasonably designed to prevent future criminal behavior.’ [Citation.] Whether the minor was currently connected with a gang has not been critical. Thus, probation terms have been approved which bar minors from being present at gang gathering areas, associating with gang members, and wearing gang clothing.” (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)

This case is not, as Aaron suggests, like In re Edward B. (2017) 10 Cal.App.5th 1228. In that case, the Attorney General agreed a gang-related probation condition was unreasonable because it was “neither related to [the] offense nor reasonably related to preventing his future criminality.” (Id. at p. 1234.) The Attorney General makes no such concession here, and unlike Edward B., the evidence demonstrates the court’s concerns warranted the imposition of gang conditions as “a reasonable preventive measure in avoiding future criminality and setting [Aaron] on a productive course.” (Laylah K., supra, 229 Cal.App.3d at p. 1502, see Olguin, supra, 45 Cal.4th at pp. 379-380.) Aaron’s reliance on Laylah K. does not alter our conclusion.

We conclude the court did not abuse its discretion in imposing the gang conditions.

DISPOSITION

The juvenile court’s December 9, 2016 dispositional order is affirmed.

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Jones, P. J.

We concur:

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Needham, J.

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Bruiniers, J.