In re Gabriel B.

Filed 3/27/07 In re Gabriel B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

The juvenile court sustained the allegations in the petition under Welfare and Institutions Code section 602^[1]that defendant assaulted a person and unlawfully took money and personal property from a person after defendant pleaded no contest to these counts. Defendant appeals from the courts disposition order. He contends the juvenile court abused its discretion in committing him to the county juvenile rehabilitation facility and it imposed an unconstitutional term of probation on him when it stated he shall have [n]o gang associations, colors, clothing, insignias, signs, paraphernalia or activities. We agree that the gang condition of probation is unconstitutionally overbroad and vague and we therefore modify it, but we otherwise affirm the disposition order.

BACKGROUND

Defendant was born October 4, 1988. On May 13, 2005, a section 602 petition was filed alleging that on October 29, 2004, defendant was in possession of a deadly weapon in violation of Penal Code section 12020, subdivision (a). Although defendant was wearing gang colors, he denied any gang affiliation but admitted many of his friends were members of the Norteno gang.

On June 11, 2005, a police officer found defendant passed out in the back seat of a vehicle reported stolen and the officer could smell a strong odor of an alcoholic beverage coming from him when he spoke. Defendant claimed that a friend had picked him up but he could not remember the friends name. The officer found a wooden baton on the car seat next to defendant, but defendant disavowed any knowledge of the baton. A short time later defendants friend, who was the son of the owner of the car, was found and he stated that he took the car and that defendant did not know that it was stolen.

On June 23, 2005, defendant admitted to a misdemeanor violation of Penal Code section 12020. A little more than a month later, on July 20, 2005, defendant was adjudged a ward of the court under section 602 for possession of a deadly weapon and the court ordered him to reside in the home of his mother. The court imposed a number of standard conditions of probation, which included the following: he obey a curfew of 6:00 p.m.; he neither use nor possess illegal drugs or alcohol and submit to random testing; he not use or possess weapons; he have no gang associations, colors, clothing, insignias, signs, paraphernalia, or activities; and he participate in individual counseling.

On December 31, 2005, the police responded to a fight in front of a convenience store at 11:40 p.m.^[2] As a customer was leaving the store, three to four males approached him and confronted him. One person asked the victim whats up with you? The victim attempted to pass the group and a member of the group punched him in the head and face three to four times until he fell to the ground. A wallet and keys were removed from the victim. At the same place and time, another person told the police that he was punched repeatedly and knocked to the ground by the same group of males.

A witness reported a vehicle license number, and the police responded to the home of defendant. The police saw defendant drop a set of keys on the ground and found a bloodied pair of tennis shoes in the closet of defendant and his brother. Defendant, his brother, his sisters boyfriend, and another person were arrested as participants in the assault.

A supplemental petition under section 602 was filed on May 9, 2006. The petition alleged that on December 31, 2005, defendant committed a two-count felony assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and felony grand theft of a person (id., 487, subd. (c)).

The probation officer filed a section 777 probation violation notice against defendant on May 19, 2006.

On July 12, 2006, the delinquency petition was amended to add another count for misdemeanor possession of a dangerous weapon (Pen. Code, 12020, subd. (a)(1)). The probation officer reported that, on March 31, 2006, defendant was arrested for possession of a weapon and was standing with a number of people known to be Norteno gang members.

On July 13, 2006, the supplemental petition was further amended to consolidate the assaults on both victims into count 1, and to make the count a misdemeanor. The court dismissed counts 2 and 4, which were, respectively, the separate count for assault with a deadly weapon and the possession of a deadly weapon on March 31, 2006. The violation of probation was also dismissed. Defendant pleaded no contest to the misdemeanor assault charges in count 1 and the felony theft from a person charge in count 3.

The probation report filed on July 26, 2006, recommended, among other things, that defendant be adjudged an indefinite ward of the court and be committed to the Orin Allen Youth Rehabilitation Facility for a nine-month regular program. The probation report stated that defendant accepted minimal responsibility for his actions and claimed that he acted in self-defense despite the victims reporting that they did not know their assailants and that that they had no warning before the assault. The report asserted that defendants history and his Norteno gang alliance suggest that the minor is exposed to and versed in criminal misconduct in the community.

The probation report further explained that defendants home situation was unstable as his brother and future brother-in-law were also involved in the assault. The report stated that defendant associated with people on parole and had friends known to the police as Norteno gang members. Moreover, defendants parents, according to the report, appeared to be unaware of defendants behavior and affiliation with the gang. The probation report also indicated that defendants parents appear to have a lackadaisical idea regarding the minors court imposed conditions of probation. The probation report pointed out that defendant had graduated from high school and was planning to attend junior college. Additionally, defendant had completed a 60-day program without incident and had attended counseling.

At the disposition hearing on July 26, 2006, the court followed the probation reports recommendations. The court noted that defendant had been provided a number of chances, but committed the current offenses while on probation. The court told defendant that he did not take a lot of things very seriously. Additionally, the court expressed concern that defendant had a great deal of denial going on. The court commented, There is a lot of things here that I think you have been completely untruthful about, and the court does take those things into consideration when looking at probation reports. The court committed defendant to Orin Allen Youth Rehabilitation Facility for nine months. Among the terms of probation ordered by the court, was the following condition: [No] gang associations, colors, clothing, insignias, signs, paraphernalia or activities.

Defendant filed a timely notice of appeal.

DISCUSSION

I. Commitment to the Residential Rehabilitation Facility

Defendant contends that the juvenile court abused its discretion by ordering him into the Orin Allen Youth Rehabilitation Facility. Defendant maintains that the commitment must be justified with a showing of benefit to the minor and the unavailability of less restrictive alternatives (In re George M. (1993) 14 Cal.App.4th 376, 379), but the juvenile court made no explicit findings regarding the availability of less restrictive alternatives or benefit to the minor.

A juvenile courts commitment order may be reversed on appeal only upon a showing the court abused its discretion. (In re Todd W. (1979) 96 Cal.App.3d 408, 416, superseded by statute on other grounds.)  We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.  (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) In determining whether the juvenile court abused its discretion, a commitment must conform to the general purpose of the juvenile court law. ( 202; In re Todd W., supra, at p. 417.) The juvenile court may impose punishment, but the disposition must evidence probable benefit to the minor and that less restrictive alternatives would be ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571.) While the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, no absolute rule exists requiring the court to reject a particular commitment until less restrictive placements have actually been attempted. (Id. at p. 577.)

In determining the appropriate disposition for a delinquent minor, the overriding concerns are public protection and the minors best interests. (In re Eddie M. (2003) 31 Cal.4th 480, 488.) Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter. ( 202, subd. (b).) Commitment to a county camp is an acceptable punishment under the statutory scheme. ( 202, subd. (e)(4).)

Before a minors custody can be taken from his parents, the juvenile court must make one of several findings. One finding that will support removal is that the minor has been tried on probation while in custody and has failed to reform. ( 726, subd. (a)(2).) The minors age, his previous delinquent history, the circumstances and gravity of the offense and any other relevant and material evidence must all be considered in making a determination as to the proper placement of a ward. ( 725.5; In re John F. (1983) 150 Cal.App.3d 182, 184.)

In the present situation, defendant concedes he has a record of delinquent behavior, but he maintains the record confirms that he was capable of complying with the orders of probation and functioning in the less restrictive setting of a home environment. He points out that he graduated from high school, plans to attend community college, completed an electronic monitoring program, and completed the restitution requirement of his probation. Additionally, he asserts that he has now completed an anger management program and has consistently tested negative for drugs. Finally, he argues that the court issued its dispositional finding on July 26, 2006, but the assault and theft occurred on December 31, 2005, and other than being suspended from school, the only alleged delinquent behavior was the possession of a deadly weapon on March 31, 2006.

Contrary to defendants assertions, the record amply supports the disposition order. The record establishes that defendant has an extensive delinquent history. Not only does defendant have a delinquent history, but he has failed to accept responsibility for his role in the offenses. Both the probation report and the juvenile court found that defendant consistently denied his role in the crimes and the court expressly found that defendant was untruthful. Further, despite wearing gang colors and affiliating with gang members, defendant denied any gang affiliation.

Additionally, the record establishes that defendant failed to reform while on probation and in the custody of his mother. Defendant committed the current offenses while on probation and in the custody of his mother. As the juvenile court noted, defendants whole family is a mess. Both defendants brother and his future brother-in-law were involved in the assaults and theft. The record establishes that defendants parents could not control defendant and his parents appeared unaware of his behavior and affiliation with the gang. The probation report stated that defendants parents appear to have a lackadaisical idea regarding the minors court imposed conditions of probation.

Additionally, defendants age supported the courts disposition order. At the time of the disposition hearing, defendant was just a few months shy of his 18th birthday. As the court admonished, this was defendants last chance for rehabilitation in the juvenile justice system. The court needed to impose something more than probation because defendant continued to engage in conduct dangerous to himself and others while on probation. Similarly, the probation officer opined that defendant had not responded to probations attempts to redirect his gang association and affinity to the criminal subculture. . . .

Finally, the gravity of the offense supported the disposition order. Defendants offenses involved an unprovoked group attack on two separate victims. The victims did not know defendant and the other assailants and they had no warning that they were going to be assaulted.

The record establishes that defendant failed to be rehabilitated by probationary conditions and rehabilitative services afforded under the prior grant of probation. Further, between the time of the assaults and robbery on December 31, 2005, and the juvenile courts disposition hearing, defendant was cited for having a deadly weapon while with known Norteno gang members and he was suspended from school for leaving campus without permission. Further, it was probable that defendant would benefit from the commitment as he would receive counseling and treatment directed at inhibiting his future affiliations with gang members and at helping him to take responsibility for his involvement in his offenses.

Accordingly, we conclude defendant failed to establish that the juvenile court abused its discretion by committing him for nine months to the county juvenile rehabilitation facility.

II. Probation Conditions Related to the Gang Terms

The juvenile courts terms of probation included the prohibition of any gang associations, colors, clothing, insignias, signs, paraphernalia or activities. Defendant contends that this gang term is unconstitutionally overbroad and vague, since it fails to specify that defendant must be aware of the gang character of his conduct and it fails to limit the meaning of gang to the definition of gang as set forth in Penal Code section 186.22.

Defendant concedes that he did not object to the gang conditions at the disposition hearing, and our Supreme Court has held that failure to object to the reasonableness of a probation condition as related to the particular facts of a case waives that issue for appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) Defendant argues, however, that he did not forfeit the issue here because he is alleging a constitutional violation that raises a pure issue of law. (In re Justin S. (2001) 93 Cal.App.4th 811, 814-815 [holding exception to waiver rule where constitutional challenge on appeal raised pure question of law]; see also People v. Welch, supra, at p. 241 (conc. opn. of Arabian, J.) [in limited circumstances where imposition of probation conditions implicates fundamental principles of policy and constitutional guarantees, the prerequisite of an objection to appellate review would frustrate rather than subserve the interests of justice; and I do not understand the majority rule to impose such a formalistic impediment].)

Appellate courts were split as to whether a defendant waives a constitutional challenge to the probation condition when no factual issues are involved and defendant failed to object below. (E.g., People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152 [forfeited]; In re Justin S., supra, 93 Cal.App.4th at p. 814 [not forfeited].) However, after briefing in this case was completed, the Supreme Court settled this issue in In re Sheena K. (March 15, 2007, S123980) ___ Cal.4th ___ [2007 WL 764310]. The court held that there is no forfeiture when the challenged probation condition raises a pure question of law. (Id. at p. *8.)

Here, the present challenge to the gang condition raises a pure question of law and defendant could raise this issue in the future as an ineffective assistance of counsel claim, we consider the merits of the issue. The People agree that under People v. Lopez (1998) 66 Cal.App.4th 615, the gang condition should be amended to reflect that the prohibited gang refers to any gang within the definition of Penal Code section 186.22 and that this prohibition on association and display should be of those associations and displays known by defendant to be gang-related. (See Lopez, supra, at pp. 628-629, 638.)

We agree that probation conditions that implicate constitutional rights must be narrowly drawn and that the knowledge requirement generally should not be left to implication. (People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Absent modification of the challenged probation condition to add an explicit knowledge requirement, defendant remains vulnerable to arrest and punishment for unknowing violations of this condition of his probation. We therefore agree that the gang condition of probation should be modified to include a knowledge component and a definition of gang as set forth in Penal Code section 186.22.

DISPOSITION

The disposition minute order regarding the gang condition of probation is modified to state that defendant shall have: No gang associations, colors, clothing, insignias, signs, paraphernalia or activities, whichdefendant knows are related to or associated with membership or affiliation in any gang. For purposes of this condition, the word gang means gang as defined by Penal Code section 186.22. As modified, the disposition order is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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^[1] All further unspecified code sections refer to the Welfare and Institutions Code.

^[2] The facts are from the probation report.