Opinion
C083155
02-22-2018
In re C.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.G., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JDSQ1600155)
The minor C.G. appeals from the juvenile court's orders modifying probation at a hearing to accept transfer of his delinquency case from San Francisco County. (Welf. & Inst. Code, §§ 602, 750, 775.)
Undesignated statutory references are to the Welfare and Institutions Code.
He contends the juvenile court had no jurisdiction to modify probation conditions at the transfer-in hearing, and various gang related conditions added by the juvenile court were unconstitutional and unreasonable. We conclude (1) the juvenile court had jurisdiction, and (2) the conditions in question did not violate the minor's constitutional rights, and were reasonable. Accordingly, we affirm the juvenile court's orders.
BACKGROUND
On September 16, 2015, Daly City Police officers were dispatched to Seton Hospital, where the minor was out of control and had to be restrained. A nurse heard the minor admit to drinking alcohol and taking Xanax while on a bus. A window punch was found on the minor. The minor made a Miranda v. Arizona (1966) 384 U.S. 436 waiver and admitted consuming alcohol and eight Xanax pills because he wanted to kill himself.
In November 2015, while on patrol in an area of San Francisco known for Norteño gang activities, undercover police officers saw the minor and an adult running out of a Safeway store while carrying various items. The minor and the adult ran into a Hyundai that was reported stolen and sped off. The officers called in a marked patrol car to conduct a vehicle stop; the Hyundai kept going and hit a pedestrian while trying to turn left. The minor, the adult, and a third person left the Hyundai and fled. The minor stopped after being ordered to do so by the officers. He gave a Miranda waiver and admitted stealing the Hyundai as well as food from the Safeway.
A section 602 petition was filed in San Francisco County, and the minor admitted unlawfully driving or taking a vehicle. (Veh. Code, § 10851.) Two days later, pursuant to a section 602 petition filed in San Mateo County, he admitted being under the influence of a controlled substance. (Health & Saf. Code, § 11550.) The San Mateo Juvenile Court then transferred its case to San Francisco County for disposition.
At a March 3, 2016 disposition hearing, the San Francisco Juvenile Court sustained the San Francisco petition, declared the minor a ward of the court, and granted him probation. On April 6, 2016, the San Francisco Juvenile Court accepted the transfer from San Mateo County, declared the offense of being under influence of a controlled substance a misdemeanor, reinstated the wardship, and continued the minor on probation.
The San Francisco court transferred the minor's case to Yuba County on September 6, 2016.
The Yuba County Juvenile Court accepted the transfer at a hearing on September 26, 2016.
At the hearing, the probation officer informed the juvenile court of additional recommendations based on the campus probation officer's observation of the minor's behavior. The minor was attending high school, but was associating with known Norteño gang members. He had been writing the Roman numeral XIV on his school notebooks, which is associated with the Norteño gang by representing the 14th letter of the alphabet, the letter N. The minor was seen crossing out the letter S, for the Sureño gang, on his schoolwork. The officer asked the juvenile court to impose various gang-related probation conditions that had been provided to the minor's counsel.
The minor was 16 at the time of the hearing.
Minor's counsel objected to the additional conditions because there had already been a disposition in this case and there was nothing to indicate the minor's offenses were gang-related.
The juvenile court found the probation officer's testimony sufficient justification to add probation conditions. It added the following probation conditions:
"1. The minor will not contact those as identified by the probation officer.
"2. The minor is not to associate with any persons whom the minor knows, or whom the probation officer informs the minor, is a gang member. For purposes of these conditions, the word gang means criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f).
"3. The minor is not to possess, wear, or display any clothing or insignia, tattoo, emblem, button, badge, cap, hat, scarf, bandana, jacket, or other article of clothing that the minor knows or that the probation officer informs the minor is evidence of, affiliation with, or membership in a criminal street gang.
"4. The minor is not to visit or remain in any specific location which the minor knows to be or which the probation officer informs the minor is an area of criminal-street-gang-related activity. The minor shall not be on or within 300 feet of any school campus during school hours unless the minor is enrolled or has prior written permission from the probation officer.
"5. The minor shall not be present at any Court proceeding where the minor knows or the probation officer informs the minor that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless the minor is a party, a defendant in a criminal action, subpoenaed as a witness, or has the prior written permission of the probation officer."
Minor's counsel objected to condition number 5 as being unconstitutional because the minor has no record of trying to intimidate or dissuade any witness or acting inappropriately in a courtroom. The trial court noted the objection for the record and concluded the hearing.
DISCUSSION
I
Jurisdiction
The minor contends the juvenile court lacked jurisdiction to impose the additional probation conditions at the transfer-in hearing. We conclude the juvenile court had jurisdiction.
"Whenever a petition is filed in the juvenile court of a county other than the residence of the person named in the petition, or whenever, subsequent to the filing of a petition in the juvenile court of the county where such minor resides, the residence of the person who would be legally entitled to the custody of such minor were it not for the existence of a court order issued pursuant to this chapter is changed to another county, the entire case may be transferred to the juvenile court of the county wherein such person then resides at any time after the court has made a finding of the facts upon which it has exercised its jurisdiction over such minor, and the juvenile court of the county wherein such person then resides shall take jurisdiction of the case upon the receipt and filing with it of such finding of the facts and an order transferring the case." (§ 750.)
The receiving court must accept jurisdiction upon receiving the transfer order. (Cal. Rules of Court, rule 5.612(a).) The receiving court must hold a hearing at which the minor and parent or guardian are advised of the hearing's scope and counsel is appointed, if necessary. (Rule 5.612(b).) "The proceedings in the receiving court must commence at the same phase as when the case was transferred." (Rule 5.612(c).)
Undesignated rule references are to the California Rules of Court.
Since there was an existing disposition order when the case was transferred to Yuba County, the minor claims the juvenile court lacked the authority to change the order. He asserts the order granting probation could not be modified absent either a petition for a violation of probation or a formal request, supported by verified evidence, from the probation department that changed circumstances support a "modification of the court's prior orders." As there was no noticed petition for modification or finding the minor violated probation, the minor concludes the juvenile court lacked jurisdiction to add the probation conditions.
The statutory scheme provides original and continuing jurisdiction to the juvenile court to make "any and all reasonable orders" and to change, modify, or set aside its orders upon prior notice. Section 730, subdivision (b), provides that when a ward "is placed under the supervision of the probation officer or committed to the care, custody, and control of the probation officer, the court may make any and all reasonable orders for the conduct of the ward including . . . . The 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."
Quote omits phrase requiring the ward go to work and earn money for the support of his or her dependents or to effect reparation. --------
After disposition, the juvenile court retains authority to change, modify, or set aside a probation order. Section 775 provides: "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article."
Section 776 addresses the procedural requirements to change, modify, or set aside the juvenile court's order. Section 776 states: "No order changing, modifying, or setting aside a previous order of the juvenile court shall be made either in chambers, or otherwise, unless prior notice of the application therefor has been given by the judge or the clerk of the court to the probation officer and prosecuting attorney and to the minor's counsel of record, or, if there is no counsel of record, to the minor and his [or her] parent or guardian." (Italics added.)
While the minor objected to the constitutionality and reasonableness of the additional probation conditions, he did not object to any lack of notice. The minor was notified of the transfer-in hearing, and, through counsel, participated in the hearing. Therefore, his contention regarding lack of adequate notice for the juvenile court's order is forfeited. (See In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K) [probationers in delinquency proceedings subject to forfeiture rule]; In re Wilford J. (2005) 131 Cal.App.4th 742, 754 [notice error in dependency proceeding forfeited where party had opportunity to bring the issue to the juvenile court's attention but did not raise it, thereby depriving the juvenile court of the opportunity to correct the mistake].)
Based on the statutory authority, we conclude the juvenile court had jurisdiction to impose additional probation conditions at the transfer-in hearing.
II
Additional Probation Conditions
The minor challenges the imposition of additional probation conditions. He contends condition 2 (limiting gang associations) is an overbroad infringement on his freedom of association. The minor also claims the prohibition against displaying, possessing, or wearing various gang-related items in condition 3 and the portion of condition 4 forbidding his presence in an area of known gang-related activity are both unconstitutionally vague and overbroad. Finally, he contends the new conditions are unreasonable and therefore invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent).
The three-part conjunctive test set forth in Lent applies to challenged juvenile probation conditions. (In re D.G. (2010) 187 Cal.App.4th 47, 52-53.) Under Lent, a condition of probation will be upheld 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.]" (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) A probation condition also may be challenged for constitutional infirmity. (Sheena K., supra, 40 Cal.4th at p. 889.) A juvenile court's imposition of a probation condition is generally reviewed for abuse of discretion, except a constitutional challenge to a condition is reviewed de novo. (In re Malik J. (2015) 240 Cal.App.4th 896, 901.)
" 'A statute or regulation is overbroad if it "does not aim specifically at evils within the allowable area of [governmental] control, but . . . sweeps within its ambit other activities that in the ordinary circumstances constitute an exercise" of protected expression and conduct.' [Citation.]" (People v. Leon (2010) 181 Cal.App.4th 943, 951 (Leon).) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights - bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
A probation condition that is void for "vagueness" is one that does not give fair warning of the prohibited conduct or guide those enforcing the condition in determining whether the condition has been violated. (Sheena K., supra, 40 Cal.4th at p. 890.) The vagueness doctrine bars enforcement of a condition with " ' "terms so vague that [a person] of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' [Citation.]" (Ibid.)
According to the minor, the prohibition against associating with known gang members in condition 2 is overbroad because there was no evidence the minor was in danger of falling under the influence of a street gang sufficient to justify the condition. Conditions prohibiting association with known gang members do not violate the Constitution. (In re Justin S. (2001) 93 Cal.App.4th 811, 816.) The probation officer stated at the probation hearing that the minor was associating with Norteño members at school, writing the Roman numeral associated with the Norteños in his notebook, and turning in work with the letter associated with the Sureño gang deleted. Under these circumstances, we conclude the condition is not overbroad.
The minor claims condition 3's prohibition against visiting any specific location the minor knows to be or the probation officer informs the minor is an area of criminal-street-gang-related activity is unconstitutionally vague because of the term "gang-related activity." The condition " '[y]ou're not to visit or remain in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity,' " was upheld against a vagueness challenge because the "knowledge condition suffices to give defendant fair warning of what areas to avoid and ensures that he [or she] will not be found in violation due to a factual mistake, accident, or misfortune." (People v. Barajas (2011) 198 Cal.App.4th 748, 754, 760.) A similar provision was modified to include a knowledge requirement and upheld as modified in Leon, supra, 181 Cal.App.4th at p. 952. As in these cases, the knowledge requirement cures any potential vagueness.
The minor asserts condition 3's prohibition against gang colors, clothing and insignia is so subjective as to be unconstitutionally vague and is an "overbroad restriction of expression" by "potentially prohibiting every color in the rainbow." Leon addressed vagueness and overbreadth challenges to the condition " '[n]o insignia, tattoos, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or other article of clothing which is evidence of affiliation with or membership in a gang.' " (Leon, supra, 181 Cal.App.4th at p. 950.) The Court of Appeal found the condition unconstitutional because it lacked a knowledge requirement and modified the condition to include a knowledge requirement. (Id. at p. 951.) Condition 3 already contains a knowledge requirement and is essentially indistinguishable from the modified condition upheld in Leon. Based on Leon, we reject the minor's challenge to condition 3.
As to condition 4, the minor asserts this term is vague and overbroad. Again, this term is indistinguishable from the modified condition upheld in Leon, and the one upheld in People v. Barajas, supra, 198 Cal.App.4th 748, 754-760.
We also reject the minor's contention the additional conditions are invalid under the Lent test (Lent, supra, 15 Cal.3d 481). The minor's vehicle theft offense was committed in an area known for gang activity. While the San Francisco Juvenile Court did not impose gang conditions at the disposition hearing, the situation changed by the transfer-in hearing. The minor's association with gang members and the gang-related markings in his schoolwork are evidence of an interest and possible association with the Norteño gang. Even if the minor's offenses have no gang components, probation conditions with the goal of "disassociation from gang-connected activities was an essential element of any probationary effort at rehabilitation because it would insulate him from a source of temptation to continue to pursue a criminal lifestyle." (People v. Lopez (1998) 66 Cal.App.4th 615, 624-626.) Rather than waiting for the minor to commit a gang-related crime, the juvenile court acted to prevent future criminal behavior by preventing gang associations. We conclude the additional probation conditions do not violate the minor's constitutional rights and are reasonable conditions.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MURRAY, J.