Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 10CEJ600736-1A David Kalemkarian, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Hill, P.J., Cornell, J. and Franson, J.
Daniel P. challenges certain conditions of his probation. We affirm.
PROCEDURAL HISTORY
On June 21, 2010, a petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that Daniel had made a false report to a peace officer (Pen. Code, § 148.5, subd. (b)(2)). As a result, Daniel was placed on informal probation. Within the probationary period, a second petition was filed, alleging that Daniel had committed second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). On November 8, 2010, Daniel admitted the allegation, and his informal probation was terminated. On December 2, 2010, he was adjudged a ward of the court and placed on probation on various terms and conditions. He filed a timely notice of appeal.
FACTUAL BACKGROUND
According to the probation officer’s report (RPO), on December 23, 2009, Daniel’s grandmother reported to sheriff’s deputies that there was a prowler in a shed on the family’s property. Daniel later admitted to deputies that he made up the story to avoid getting in trouble for taking his grandmother’s car without permission. On November 3, 2010, Daniel and a female walked into a FoodsCo store. Daniel took a bottle of alcoholic beverage and concealed it in a purse he was carrying. When apprehended, Daniel told police he was with some friends who decided they wanted to get drunk, so he offered to steal a bottle of alcohol.
With regard to Daniel’s personal and behavioral history, the RPO related that Daniel’s mother said Daniel was “a good kid” until he got around certain friends, whose last names she often did not know. Daniel’s mother said that when the friends wanted to do something wrong, Daniel often went along even though he knew it was wrong.
According to the RPO, school records showed that Daniel was suspended or otherwise disciplined on a number of occasions. In October 2009, he intimidated another student who was a witness to a situation at school. The following month, he disrupted class by walking around with paper in his mouth, touching other students in an offensive way, and telling them to shut up. When one student told Daniel not to touch him again, Daniel responded, “‘Or what, are you going to molest me?’” In addition, Daniel intentionally cut himself during lunch. In January 2010, Daniel filled a balloon with acetylene during welding class, creating a dangerous situation. Later that month, he exposed himself to another student as a joke. On January 28, 2010, he was found to be in possession of marijuana and a pipe; that same day, he touched male and female students in a sexually inappropriate manner by making sexual hip movements against them. At the time the RPO was prepared, Daniel was in an alternative education/independent study program.
Daniel admitted to the probation officer that he drank beer and used marijuana regularly, and that he had tried ecstasy and cocaine. He denied any involvement in gang activity.
The probation officer recommended that Daniel be placed on probation on condition, inter alia, that he enroll in and complete a sexual awareness program; not associate with anyone known to him to be a gang member; and not wear, possess, or display any item known to him to be gang related.
At the disposition hearing, Daniel objected to the sexual awareness program condition. Daniel denied sexually touching other students or exposing himself. Concerning the reported sexual hip movements, Daniel explained he was merely swaying in response to music that was playing.
After argument by counsel, the court stated:
“… I think the statutes and case law makes it pretty clear that the Court has very broad discretion to fashion terms and conditions that are reasonably related to the minor’s rehabilitation.
“And I think in this case pretty clearly Daniel has some issues with judgment and specifically as it relates to sexual activity – is probably not right word but behavior, and apparently this has been demonstrated on more than one occasion, both in the past as well as recently.
“Now, I do not believe that there has to be a nexus between the charged offense and reasonable terms and conditions of probation. We, for example, have many cases where a minor may have simply stolen a candy bar, but we order substance abuse evaluation and treatment if we think they have a drug problem.
“I think the Court has broad discretion to fashion terms and conditions of probation that will help the minor, really, in any way to rehabilitate with any issue or problem that they have that exists in their life.
“While it could [be] argued I suppose that the sexual awareness class may be more appropriate in this case under the circumstances based on the facts as the Court knows it and Daniel’s comments, the Court does believe that it’s probably better for him to complete the program that’s been recommended, which is the sexual awareness program as opposed to the class. I understand it’s 12 weeks and not one week, and I think that will be helpful to him, and he’ll gain beneficial information and knowledge and hopefully make better judgments in the future regarding that issue.”
The court placed Daniel on probation, on terms and conditions as set out in the RPO and read to Daniel by the probation officer at the hearing.
DISCUSSION
Daniel claims the trial court abused its discretion by imposing the sexual awareness program and gang-related conditions, as they were not supported by the evidence and so are improper under People v. Lent (1975) 15 Cal.3d 481 (Lent). He further contends the gang-related conditions (1) impermissibly violate his First Amendment rights to association, free speech, and expression, and (2) are vague and overbroad because, he asserts, “[s]o-called gang clothing, insignia, monikers, jewelry or other markings are nearly impossible to avoid, nor able to be specifically identified.”
Where adult offenders are concerned, “[t]he California Legislature has given trial courts broad discretion to devise appropriate conditions of probation, so long as they are intended to promote the ‘reformation and rehabilitation’ of the probationer. [Citation.]” (In re Luis F. (2009) 177 Cal.App.4th 176, 188.) “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.] 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.” (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.)
Where juvenile offenders are concerned, the trial court’s discretion is even broader. (In re Luis F., supra, 177 Cal.App.4th at p. 188.) “The juvenile court has wide discretion to select appropriate conditions and 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.’”’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) Conditions of probation that would be impermissible for an adult probationer are not necessarily unreasonable for a minor: Juveniles are deemed more in need of supervision and guidance than adults; their constitutional rights are more circumscribed; and the state, in exercising jurisdiction over a minor, stands in the shoes of the parents, who may curtail a child’s exercise of constitutional rights because of the parents’ own constitutionally protected interests. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033-1034.) “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.]” (Id. at p. 1034.)
In deciding what probation conditions are appropriate, the juvenile court considers the circumstances of the offense, together with the minor’s entire social history. (In re Juan G. (2003) 112 Cal.App.4th 1, 7.) We will uphold the court’s determination unless a manifest abuse of discretion is shown. (Ibid.)
In light of Daniel’s conduct at school, we find no abuse of discretion with respect to the requirement that Daniel enroll in and complete a sexual awareness program. Although the program is unrelated to Daniel’s offense, and even if Daniel’s school conduct was not itself criminal, Daniel clearly used poor judgment in, and showed a lack of awareness of the potential effects and consequences of, his manner of “horseplay.” The use of sexual gestures and inappropriate, unwanted touching, even if done jokingly from Daniel’s point of view, could easily develop into criminal behavior. Hence, a sexual awareness program is reasonably related to future criminality under the circumstances, and so was properly imposed as a condition of probation.
Daniel points out that the events detailed in his school records occurred some 10-13 months prior to the disposition hearing, and he says there is no indication he engaged in such horseplay after being disciplined by the school. This does not alter our conclusion, given Daniel’s pattern of engaging in sexually inappropriate behavior. Moreover, the juvenile court reasonably could have concluded such behavior only stopped because Daniel was no longer in a classroom setting, but instead was on independent study, as shown by Daniel’s statement to the probation officer that he had only missed two of his independent study appointments since October 2010.
Daniel raised no objection to the gang-related conditions in the juvenile court. Accordingly, he has forfeited any challenge to those conditions on Lent grounds. (Sheena K., supra, 40 Cal.4th at p. 885; In re Antonio C., supra, 83 Cal.App.4th at p. 1033; cf. People v. Welch (1993) 5 Cal.4th 228, 237.) Daniel belatedly recognizes this in his reply brief, but argues his constitutional claims present pure questions of law that, because they can be resolved without reference to the record developed in the juvenile court, are not forfeited. (See Sheena K., supra, 40 Cal.4th at p. 889.)
We are not entirely persuaded. In Sheena K., the minor claimed that a probation condition forbidding her association with “‘anyone disapproved by probation’” was vague and overbroad. (Sheena K., supra, 40 Cal.4th at p. 889.) While finding no forfeiture by failure to object, the California Supreme Court cautioned that its conclusion did not automatically apply in every case in which a probation condition is challenged on constitutional grounds. (Ibid.) The court stated: “[W]e do not conclude that ‘all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” [Citation.]’ [Citation.]” (Ibid.)
We reject the claim that is properly before us on appeal, namely Daniel’s assertion that the gang-related conditions are vague and overbroad. The conditions provide that Daniel is “Not to associate with any person know to the minor to be a gang member. For purposes of this paragraph, and for any condition of probation in which the word ‘gang’ appears, that word means a ‘criminal street gang’ as described in penal Code Section 186.22, subdivisions (e) and (f). Not to wear, possess, or display any item known to the minor to be gang related such as any gang insignia, moniker, jewelry or other markings.” In light of the definition of “gang” and inclusion of a personal knowledge requirement, Daniel does not persuade us that these conditions are facially invalid. (See, e.g., Sheena K., supra, 40 Cal.4th at pp. 890-892 & cases cited; In re Vincent G. (2008) 162 Cal.App.4th 238, 244-246, 247-248.)
The issue whether gang-related conditions could be constitutionally imposed on Daniel in the first instance was forfeited by Daniel’s failure to object in the juvenile court. This is so because the propriety of the conditions does not present a pure question of law, but rather can only be resolved with reference to the record developed in the juvenile court. (See In re Antonio C., supra, 83 Cal.App.4th at p. 1033; compare Sheena K., supra, 40 Cal.4th at pp. 885-889.)
We would uphold imposition of the gang-related conditions in any event. Daniel denied any gang activity, and there was no evidence his offense was gang related. Nevertheless, there was evidence, especially from his mother’s observations, that he tended to be particularly susceptible to peer influence and the conduct of his group of friends, many of whose last names his mother did not know. Under these circumstances, the juvenile court reasonably could have concluded that should any of Daniel’s companions be or become involved in gang-related activity, Daniel would be at grave risk for following right along. “Association with gang members is the first step to involvement in gang activity. And, under Penal Code section 186.22, active participation in a street gang, defined as a criminal enterprise, is a crime.” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1501, disapproved on another ground in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983, fn. 13.)
DISPOSITION
The judgment is affirmed.
“Probation conditions have been upheld even though they restrict a probationer’s exercise of constitutional rights if they are narrowly drawn to serve the important interests of public safety and rehabilitation [citation] and if they are specifically tailored to the individual probationer. [Citations.]” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; cf. People v. Jungers (2005) 127 Cal.App.4th 698, 703-704.) The conditions at issue here are “consistent with the rehabilitative purpose of probation and constitutional parental authority.” (In re Frank V. (1991) 233 Cal.App.3d 1232, 1243.) As an examination of Daniel’s criminal record, and particularly his social history, show they are reasonable and tailored to fit his reformative and rehabilitative needs, Daniel’s constitutional rights of association, free speech, and expression “[have] not been impermissibly burdened.” (Ibid.; cf. Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 772 [person’s choice of dress and manner of appearance is constitutionally entitled to some protection against arbitrary governmental suppression].)