In re Julian T.

Filed 7/31/07 In re Julian T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Raymond P. Van Stockum, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

An original juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a) was filed on September 21, 2006. The petition alleged that minor and appellant, Julian T. (minor) committed the following offenses: (1) count 1 â€‘‑ vandalism (Pen. Code, 594, subd. (b))^[1]; and (2) count 2 â€‘‑ conspiracy to commit vandalism ( 182, subd. (a).)

On September 22, 2006, minor admitted committing count 1 in exchange for a dismissal of count 2 and a deferred entry of judgment. At the disposition hearing, the juvenile court stated the conditions of minors probation, including a condition that minor shall not appear at any court building, including the lobby, hallway, courtroom or parking lot, unless he/she is a party, defendant or subpoenaed as a witness to a court proceeding. The court placed minor on deferred entry of judgment subject to the terms and conditions of the probation report.

Minor filed a timely notice of appeal.

I

FACTUAL BACKGROUND

Minor admitted using the moniker Sims as a member of a tagging crew called Making Crews Drop (MCD). On June 8, 2006, minor vandalized Ontario High School as a member of MCD.

II

THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION IN ORDERING A COURTHOUSE PROHIBITION AS A TERM OF PROBATION

Minor contends that the courthouse-prohibition probation condition imposed upon him by the juvenile court was unreasonable because it was not related to his crime or his future criminality. He also contends that the term is unconstitutionally vague and overbroad. We disagree.

A. Standard of Review

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.)

B. The Court Did Not Abuse its Discretion

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 certain gang probation conditions, namely that minor (1) not be present in any gang gathering area; (2) [n]ot appear at any court building or adjacent area; and (3) [a]ttend a gang intervention program . . . . On appeal, minor only challenges the probation condition concerning court conditions. Indeed, minor concedes that it was not unreasonable to conclude that the tagging crew of which [minor] admitted being a member, Making Crews Drop, fits within the definition of a criminal street gang pursuant to Penal Code section 186.22, subdivision (f), as one of its primary activity [sic] is vandalism as set forth in Penal Code section 186.22, subdivision (e)(20). Minor also concedes that a courthouse prohibition has been upheld as a condition of probation against gang members. [Citations.] Nevertheless, minor challenges the courthouse prohibition on appeal.

A similar argument was made and rejected in In reLaylah 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, minor and members of his tagging crew painted MDC, Redz, Fears, Wartz, and Sims on various buildings around Ontario High School. According to the detention report, minor displayed a proud attitude in belonging to a tagging crew. He admitted associating with the MDC tagging crew for four to five months and that his moniker was Sims. Minor was also suspended from school five times for sexual harassment and fighting. The record also showed that minor began drinking alcohol at the age of 14, and admitted drinking on a monthly basis.

Based on the evidence, the court felt that the gang conditions were appropriate; the court saw no difference between a gang and a tagging crew because they both fit the definition perfectly as a group organized to commit criminal activity. Thats all gang. Thats what a tagging crew is. The court also recognized that minor did go and tag with a bunch of his friends although he claimed to be an ex-tagger. The court further recognized that the probation terms were part of the rehabilitation term. . . . The effect is if he knows there are certain restrictions on his freedom because of the fact that hes known by who he is associated with, which is gang members.

Based on the above, 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.

C. The Courthouse Prohibition Condition Is Not Constitutionally Vague or Overbroad

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 courts 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 minors 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 courts efforts to prevent minor from affiliating with gangs, as discussed above, we conclude that this probation condition was tailored specifically to meet minors needs and was therefore valid. (In re Michael D. (1989) 214 Cal.App.3d 1610, 1616.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

KING

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1]All statutory references are to the Penal Code unless otherwise specified.