In re Bobby P.

Filed 3/5/07 In re Bobby P. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Jerry Brown, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.

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The court adjudged appellant, Bobby P., a ward of the court (Welf. & Inst. Code, 602) after Bobby admitted petition allegations charging him with petty theft (count 1/Pen. Code, 484, subd. (a)) and vandalism (count 2/Pen. Code, 594, subd. (b)(2)). On May 24, 2006, the court ordered Bobby to serve 15 days in juvenile hall, 15 days on the electronic monitor and placed him on probation on certain terms and conditions including certain gang conditions. On appeal, Bobby contends the court abused its discretion when it imposed gang conditions. We will affirm.

FACTS

On May 5, 2006, Bobbys mother returned home to find that someone had punched a hole in the door to her room, which she kept locked to prevent Bobby from stealing from her. Bobbys mother reported that a bottle of prescription pain medicine, her cell phone, a compact case for CDs, and a bottle of Bacardi rum were missing from her room. Bobby was subsequently interviewed by police and stated that he took only his shoes from the room and that his mothers cell phone was somewhere in the house.

On May 24, 2007, after accepting Bobbys admissions, the court considered a probation report that had already been prepared. The report noted that Bobby had a history of running away and that his mother suspected him of being involved in gang activity. According to Bobbys mother, Bobby had not been living at home for the past several months, when he was home he would come and go as he pleased and be gone for several days at a time, he had not been attending school, and he did not obey her.

When the court announced the terms and conditions of Bobbys probation, the following colloquy occurred:

THE COURT: Mom, you mentioned that you believe that Bobby is hanging out with gangs? Can you tell me more about that?

[MOTHER]: Its the writings he does. Its not normal I mean, I see like the graffiti on the walls, and thats what Im seeing from his writings.

Im having a hard time getting him back into school because Davis (phonetic) has dropped him, so I tr[ied] to enroll him in Elliot (phonetic). We had a meeting with the counselor, and thats when he went into the hall, and I missed that counseling meeting, and I tried calling them.

They said, Well you cant enroll him anymore so Im having a hard time trying to get him into a school. I feel that he does better without kids. He was in independent studies, and he was doing fine as long as there are no other kids around him. Hes very smart. Its just the kids -- the school he goes to, and the kids that are around him change him.

The court then ordered Bobby not to possess any gang paraphernalia, that includes but [is] not limited to rags, monikers, graffiti, tagging instruments, and that [he ] not associate or communicate with or be in the company of any know[n] gang members or hang out with any known gang members[,] [and to] [s]tay away from known gang gathering areas. The court also ordered that Bobby was searchable for gang paraphernalia.^[1]

DISCUSSION

Bobby contends the court abused its discretion in ordering him to comply with the gang conditions because these conditions bore no relationship to the sustained petition, and were neither reasonably related to his reform nor narrowly drawn to serve the interest of public safety or rehabilitation; nor were they tailored to his specific circumstances. We disagree.

A juvenile court is vested with broad discretion to select appropriate probation conditions. [Citation.] The court may impose any reasonable condition that is 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).) A condition of probation that is impermissible for an adult probationer is not necessarily unreasonable for a minor. [Citation.] Juveniles are deemed to be more in need of guidance and supervision than adults, and their constitutional rights are more circumscribed. [Citation.] Further, when the state asserts jurisdiction over a minor, it stands in the shoes of the parents. A parent may curtail a childs exercise of constitutional rights because a parents own constitutionally protected liberty includes the right to bring up children and to direct the upbringing and education of children. [ Citation.] Thus, the juvenile court may impose probation conditions that infringe on constitutional rights if the conditions are tailored to meet the needs of the minor. [Citation.] [] . . . []

A probation condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted, (2) forbids conduct that is not reasonably related to future criminality, and (3) relates to conduct that is not itself criminal. (People v. Lent, supra, 15 Cal.3d at p. 486 .) In addition, where an otherwise valid condition impinges on constitutional rights, the condition must be carefully tailored and reasonably related to the compelling state interest in the minors reformation and rehabilitation. [Citation.] (In re Antonio C., (2000) 83 Cal.App.4th 1029, at pages 1033-1034.)

[I]n planning the conditions of [a minors] supervision, the juvenile court must consider not only the circumstances of the crime but also the minors entire social history. [Citations.] [Citation.] (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153.) The juvenile courts exercise of discretion in establishing conditions of probation in juvenile cases will not be disturbed in the absence of manifest abuse. [Citation .] (In re Christopher M. (2005) 127 Cal.App.4th 684, 692.) [D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] (People v. Giminez ( 1975) 14 Cal.3d 68, 72.)

Further, as noted in In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502, Evidence of current gang membership is not a prerequisite to imposition of conditions designed to steer minors from this destructive path.

Here, in an interview with the probation department, Bobbys mother stated that she believed he was involved in gang activity. She also reported that he would be gone from home several days at a time, he had not been living at home the last several months, and when he was home he came and left when he wanted to and he did not obey her. Further Bobbys mother advised the court that Bobby was writing graffiti, he had been dropped from school, and his bad behavior occurred when he associated with other juveniles. Thus, in view of Bobbys runaway behavior, susceptibility to being influenced by his peers, failure to attend school, and his failure to obey his mother, the court could reasonably infer that Bobby was at risk of gang associations, whether or not he had any existing affiliation with gangs or gang members, and properly took a proactive role to protect Bobbys welfare. [G]reater supervision by the court was warranted as his mother had plainly lost control of his behavior. (In re Laylah K., supra, 229 Cal.App.3d at p. 1502.) Under the circumstances, there was no logical or beneficial reason to require a court to wait until a minor has become entrenched with a gang, only then to apply mere prophylactic remedies. ( Id. at p. 1501.) We further note that active participation in a street gang . . . is a crime. (Ibid.) For those reasons, the prohibition against association with gangs and gang members was rationally related to the strong interest in preventing Bobby from engaging in future criminality. Accordingly, we reject Bobbys contention that the court abused its discretion when it imposed the gang conditions.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.

^[1] Defense counsel objected to the gang conditions.