Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL018292, Joy Wiesenfeld Markman, Judge.
Robert Little, 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, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Rylaarsdam, Acting P. J., Moore, J., and Fybel, J.
In this his tenth petition, appellant E. A. was continued as a ward of the juvenile court after the court found true allegations of three counts of vandalism and that the offenses were committed for the benefit of a criminal street gang. (Welf. & Inst. Code, § 602.) The court placed him on probation subject to conditions and committed him to the care, custody, and control of the Orange County Probation Department for commitment to juvenile hall.
Appellant does not challenge the judgment; rather, he challenges a condition of probation and the calculation of precommitment custody credits. Thus, it is sufficient for the purposes of this appeal to recite that he spray-painted graffiti on residential buildings, signing them with his street moniker.
I
We turn first to the issue of precommitment custody credits. The Attorney General concedes the juvenile court shorted minor one day by awarding him only 33 days of credit. Minor was first held in custody in this case on August 3, 2008, and was sentenced September 5, 2008. Because the juvenile court must “award credits for all days in custody up to and including the day of sentencing” (People v. Smith (1989) 211 Cal.App.3d 523, 527), minor should have been awarded 34 days of precommitment custody credits. We can correct that error on appeal.
II
We next consider appellant’s challenge to one of the conditions of probation. As part of the “full gang terms,” the juvenile court orally imposed as a condition that appellant is “Not to have on you or in your possession any graffiti tools. No Sharpie pens. No paint. No shoe polish. No dark permanent markers. No spray paint of any kind. No scratching tools for the purpose of graffiti.”
Appellant complains this condition is unconstitutionally vague and overbroad and violates his First Amendment free speech rights. He does not cite any case that has addressed the constitutionality of this probation condition, but argues that, “As a practical matter, possessing a Sharpie pen, shoe polish or a dark permanent marker is not itself criminal and is definitely not indicative of an individual’s intent to create graffiti. Many everyday tasks require the possession of a marker or shoe polish and have nothing to do with graffiti. For instance, if appellant has a job interview and would like to polish his shoes before the interview to make a good impression, he should not be held in violation of the law because he possessed shoe polish. Furthermore, if appellant needs to use a permanent marker or a sharpie to write on moving boxes, he should not be treated as a criminal for doing so.” We are distinctly unimpressed.
In People v. Lent (1975) 15 Cal.3d 481, our Supreme Court stated that “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.” (Id. at p. 486; see also People v. Olguin (2008) 45 Cal.4th 375, 379.) Thus, even though the possession of paint, shoe polish, Sharpie pens, and permanent markers is not itself criminal, the juvenile court does not abuse its discretion by imposing a probation condition that prohibits appellant from possessing graffiti tools if that condition is reasonably related to appellant’s crime or future criminality.
Appellant was convicted of tagging residential buildings with gang graffiti with paint and permanent markers. A probation condition that prohibits appellant from possessing these items is reasonably related to the crime and future criminality because those items are the very instruments used in the crime. In imposing this condition of probation the juvenile court simply did what every good parent knows: sometimes you just have to take away the toys.
The judgment is modified to give appellant credit for one additional day of precommitment custody credits, for a total of 34 days. The clerk of the superior court is directed to correct the appropriate records to reflect the change in precommitment custody credits. As modified, the judgment is affirmed.