[1] Statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] Laylah K. was disapproved on unrelated grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, footnote 2.

Filed 12/10/18 In re D.B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re D.B., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. D.B., Defendant and Appellant.	A154499 (Solano County Super. Ct. No. J42929)

After D.B. (Minor) admitted violating the terms of his previously-imposed probation, the juvenile court ordered gang-related probation conditions that Minor now challenges. Even though Minor admitted being affiliated with a gang, and even though the probation department expressed concerns that he failed to appreciate the effects of his association with peers engaging in criminal behavior, Minor argues that the gang-related conditions are unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, Minor, who had already been the subject of four previous sustained wardship petitions filed under Welfare and Institutions Code section 602, admitted allegations in a new wardship petition that he committed grand theft of a firearm.[1] (In re D.B. (Apr. 26, 2018, A152018) [nonpub. opn.] at pp. 1, 4.) The juvenile court committed him to the Challenge Academy at juvenile hall (Challenge) and imposed various terms and conditions of probation. (Id. at pp. 7-8.)

In May 2018, after Minor was released from Challenge, the district attorney alleged that Minor, then 17 years old and residing with his mother in Dixon, violated the condition of his probation that required him to obey all laws, based on a police report describing Minor’s arrest for possession of a firearm and ammunition. (Pen. Code, §§ 29610, 29650.)

Minor admitted the violation as described in the police report, which the probation department summarized as follows: “During investigation of two burglaries in which the minor is a suspect, police obtained a search warrant for his residence. Also, police viewed on the social media application[s] ‘Instagram’ and ‘Snapchat’ videos and photographs of the minor with firearms. On 5/10/18, at 7:06 p.m., police served the search warrant and found inside a motorhome on the property, a loaded 9mm semi-automatic handgun behind the driver’s seat, under a sofa. Police noted immediately prior to the search, they had observed the minor entering and exiting the motorhome. Also the search yielded live 9mm ammunition and a gun cleaning kit. Police noted the handgun had an affixed laser and was ‘identical’ to the firearm minor posted on his social media ‘Snapchat’ account. He was arrested at 9:40 p.m. for violations of 29610 PC, 29650 PC, and probation violation.”

The deputy probation officer who wrote the supplemental report for Minor’s disposition hearing stated that Minor admitted his Norteno criminal street gang affiliation and association to her. She also reported that after Minor’s arrest on May 10, 2018, he waived his Miranda rights and admitted his Norteno affiliation to Vacaville police, and that during his intake interview at juvenile hall he said he was a Norteno gang associate. She also stated that Minor had participated in “gang related behavior,” relying on a November 2017 Challenge Academy Review.

The officer reported that in discussing his probation violation, Minor denied any involvement in the presence of the firearms in the motorhome, and placed the responsibility for that on his friend, while not appearing to understand “the negative effects of associating with peers participating in such behavior.” The report expressed “great concern regarding [Minor’s] peer associations,” and added that Minor’s mother “also confirmed concern regarding her son’s peer associations. She stated she noticed [Minor] had dots tattooed on his hands and believed them to be gang related. When the undersigned questioned the minor regarding the tattoos, he did not provide a statement.”

The report concluded, “With self-admission to multiple sources of gang affiliation/association it is respectfully requested gang related terms and conditions be applied to the minor’s Wardship.” The requested conditions included, by way of example, “Minor shall not . . . associate with any person known by the Minor to be a gang member.”

Minor’s probation officer testified at the contested disposition hearing, and was asked whether she would agree that Minor presented a danger to himself and his community due to his involvement in the Norteno gang. She responded, “I have minimal knowledge with regards to the Nortenos, but most recently, from what I’ve read in the [probation department’s] report, he has self-admitted.” Asked whether she was aware of anything other than what she read in the report, she responded, “He did display one incident in Challenge . . . with some gang writing. Other than that, there was not anything.”

At the hearing, Minor’s counsel argued as follows regarding the gang conditions: “[P]robation in the report and the testimony today is trying to insinuate that [Minor] is associated with a gang, and there’s even a reference in the report that he has tattoos on his hands indicating such association. [Minor] disputes that, and I think the easiest way to show that is there are no tattoos on his hand. I’m not sure what that was in reference to.” The prosecutor responded, “The reference to the tattoos on the minor’s hands came from the minor’s mother. That didn’t come from probation. They came from the mother stating that she had noticed dot tattoos on the minor’s hand. The minor self-admitted to being a Norteno gang member at intake at juvenile hall on this last go around that got him where he is now.”

The juvenile court continued Minor’s wardship, and ordered “placement in suitable foster home or institution, if appropriate” contemplating placement in a group home, with Minor to remain at Juvenile Hall, where he had been detained, until placement. The court imposed the gang-related conditions recommended by the probation department, explaining, “I don’t know if you do or do not have any dots anymore or if you did at one time, but there are multiple reported statements by [Minor], including to the probation officer who authored the report, so I do think that gang terms are appropriate for his own protection, as well as the community. Minor timely appealed, and challenges only the gang-related probation conditions.

DISCUSSION

A. Applicable Law and Standard of Review

We summarized the relevant legal principles in In re Edward B. (2017) 10 Cal.App.5th 1228 (Edward B.): “The juvenile court is authorized to ‘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.’ (§ 730, subd. (b).) We review the juvenile court’s probation conditions for abuse of discretion. (In re P.A. (2012) 211 Cal.App.4th 23, 33.)

“Well-established principles guide our review. “The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents” [citation], thereby occupying a “unique role . . . in caring for the minor’s well being.” [Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. “[E]ven where there is an invasion of protected freedoms, ‘the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.’ ” [Citation.] . . . Thus, “ ‘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.]’ (In re Victor L. (2010) 182 Cal.App.4th 902, 910.)

“The juvenile court’s discretion in imposing conditions of probation is broad but not unlimited. (In re D.G. (2010) 187 Cal.App.4th 47, 52 (D.G.).) Our Supreme Court has stated criteria for assessing the validity of a probation condition: Upon review, ‘[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[.]” ’ (Lent, supra, 15 Cal.3d at p. 486.) ‘Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ (Ibid.) Adult and juvenile probation conditions are reviewed under the Lent criteria. (D.G., supra, 187 Cal.App.4th at p. 52.) A condition that would be improper for an adult is permissible for a juvenile only if it is tailored specifically to meet the needs of the juvenile. (Id. at p. 53.) In determining reasonableness, courts look to the juvenile’s offenses and social history. (Ibid.)” (Edward B., supra, 10 Cal.App.5th at pp. 1232-1233.)

B. Analysis

Minor concedes that some of the gang-related conditions imposed by the juvenile court forbid illegal conduct, and therefore are not subject to challenge under Lent. For example, Minor does not object to the prohibitions against receiving a permanent tattoo, or participating in a criminal street gang. Minor argues, however, that the conditions that relate to otherwise legal activity, such as the condition prohibiting Minor from associating with anyone he knows to be a gang member, are invalid under Lent because there is no evidence that Minor’s probation violation was gang-related and because the conditions are not reasonably related to Minor’s future criminality. Because we conclude that the conditions are reasonably related to Minor’s future criminality, we shall affirm without reaching the question whether Minor’s probation violation was gang-related.

In arguing that the gang conditions are unrelated to Minor’s future criminality, Minor focuses on the absence of particular types of evidence: for example, there is no evidence that Minor was involved in gang-related altercations at Challenge or elsewhere, or that he had recently been jumped in a Norteno gang, or that his prior adjudications were gang-related. But the absence of certain types of evidence that might support gang conditions does not preclude the existence of other evidence that does support them, as is the case here.

Minor concedes that the record reflects he had recently admitted Norteno gang affiliation to three separate people: a probation officer, a juvenile detention facility staff member, and a Vacaville police officer. On appeal, his response to this evidence is that his trial counsel “disputed that he had made such admissions, asserting that he had denied doing so.” The portion of the Reporter’s Transcript on which Minor relies does not include any such assertion, and in any event such an assertion would be argument, not evidence. Minor also argues that his trial counsel disputed that he had any tattoos on his hand, and invited the juvenile court judge to see for himself. The juvenile court recognized that even if Minor did not have dots on his hands at the hearing, he could have had them at some time in the past. Minor concedes his probation officer testified she was aware that Minor was involved in an incident of gang writing at Challenge. From the absence in the record of evidence that the probation officer interviewed him “to probe the issue of his alleged gang involvement,” Minor speculates that the probation officer “did not have a genuine concern that [he] was in danger of falling under the influence of or becoming more entrenched in a Norteno gang.” But he ignores the probation officer’s testimony that she concurred with the recommendation in the probation department’s supplemental report, which expressed “great concern” about Minor’s peer associations and specifically requested that the court impose gang-related probation conditions.

Minor cites no authority to suggest that the evidence before the juvenile court was insufficient to support gang-related conditions, and we are aware of none. Instead, Minor attempts to distinguish his case from In re Laylah K. (1991) 229 Cal.App.3d 1496, where gang conditions were upheld, arguing that evidence of his gang affiliation was “minimal” compared with the minors in that case.[2] He argues that although, like the defendants in Laylah K. he admitted having friends who were gang members, his case was different because there was no evidence that he had engaged in gang-related violence, unlike the Laylah K. defendants, who attacked a woman they thought was wearing the colors of a rival gang. (Id. at pp. 1500-1501.) But Minor points to nothing in Laylah K. to suggest that the participation in gang-related violence was the fact that led the juvenile court in that case to impose gang conditions. To the contrary, the court in Laylah K. rejected the defendants’ “contention that mere association with gang members does not justify terms aimed at known gang members.” (Id. at p. 1501.) As Minor concedes, the court in Laylah K. reasoned that gang-related probation conditions were appropriate to prevent defendants from becoming “entrenched” with a criminal street gang, because “[a]ssociation with gang members is the first step to involvement in gang activity.” (Ibid.) The Laylah K. court held, “[w]here a court entertains genuine concerns that the 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. Evidence of current gang membership is not a prerequisite to imposition of conditions designed to steer minors from this destructive path.” (Id. at p. 1502.)

In addition, Minor argues that his case is like Edward B., in which this court struck a gang condition where the only evidence in the record that the defendant is or was a gang member or that his friends are or were affiliated with gangs were the following statements by the defendant’s father: a former friend of defendant “ ‘has some involvement with a criminal street gang’ ”; an older individual was reported to have driven defendant around before the admitted offense was committed; and the father believed that defendant had been instructed to commit the offense. (Edward B., supra, 10 Cal.App.5th at p. 1234.) Here, in contrast, Minor admitted his gang affiliation on multiple occasions, Minor’s mother believed he had gang-related marks on his hand, and Minor was involved in an incident involving gang related behavior while at Challenge.

There is ample evidence in the record here of Minor’s affiliation with a criminal street gang and his associations with people engaged in criminal activity. In these circumstances, the gang-related conditions imposed by the juvenile court are reasonably related to Minor’s future criminality and are therefore valid under Lent.

DISPOSITION

The order appealed from is affirmed.

_________________________

Miller, J.

We concur:

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Kline, P.J.

_________________________

Richman, J.

A154499, People v. D.B.