Opinion
A103511
11-17-2003
In re FELIX M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FELIX M., Defendant and Appellant.
Appellant Felix M. was born in August 1986. On July 9, 2002, a store security camera observed him take a bottle of rum from a food store. In February 2003, the People filed a petition in juvenile court alleging that Felix had committed two misdemeanors—petty theft and being a minor in possession of an alcoholic beverage. (See Bus. & Prof. Code, § 25662, subd. (a); Pen. Code, § 484, subd. (a); Welf. & Inst. Code, § 602.) In April 2003, Felix admitted the theft allegation and the juvenile court found it to be true. At the prosecutions request, it dismissed the second allegation. In July 2003, the juvenile court adjudged Felix to be a ward of the court, granted him probation and placed him in the custody of his mother.
The conditions of his probation, inter alia, prohibited Felix from being present at any known gathering of a Norteños gang; from associating with any known gang members or associates; from wearing gang colors or possessing any gang paraphernalia; and from being present at a court proceeding at which he is not a party, a defendant, or a subpoenaed witness. On appeal, he challenges these gang-related conditions of probation as having been imposed as the result of an abuse of the juvenile courts discretion and as an impermissible violation of his First Amendment rights to speech and association. We affirm the order.
I. ABUSE OF DISCRETION
First, Felix contends that the juvenile court abused its discretion by imposing gang-related conditions of probation. He argues that there was insufficient evidence of his gang association to warrant such conditions. He asks us to strike these conditions of probation as invalid.
The probation report noted that Felix denied any gang affiliation, but often wore gang colors. His mother stated her belief that Felix is interested in and pretends to be involved in a gang. Her sons association with gang members prompted her to transfer him to another school district. The report identified Felixs most significant problems as his truancy and his unwillingness to acknowledge his gang affiliation. The probation officer recommended the gang conditions of probation, to which Felix objected at the disposition hearing. His attorney argued that his mother did not believe that he was involved in a gang. Felixs mother first testified that the probation reports statement about moving her son to another school because he was associating with gang members was accurate, but immediately retracted this statement. Felixs problems were with truancy and smoking—not gangs, she told the juvenile court. Despite this testimony, the People asked for the gang conditions, arguing that the probation report accurately reflected the mothers earlier statements. In the end, the juvenile court found the probation officers recommendation was appropriate and imposed the gang conditions of probation.
Felix appears to assert that there was insufficient evidence that the Norteños gang with which he was identified had adopted red—Felixs favorite—as its color. The association of red with Norteños is well established. (See People v. Loeun (1997) 17 Cal.4th 1, 5, cert. den. sub nom. Loeun v. California (1998) 523 U.S. 1129; People v. Garcia (1998) 63 Cal.App.4th 820, 825; see also Evid. Code, § 452, subds. (a), (h) [judicial notice of case law, facts not reasonably subject to dispute].)
The juvenile court specifically referenced the relevant passage of the probation report and overruled Felixs objection when it found that it formed the basis of its factual finding.
A juvenile court may impose any reasonable condition that it determines fitting and proper to serve the ends of justice and to enhance the juveniles reformation and rehabilitation. (Welf. & Inst. Code, § 730, subd. (b).) The juvenile courts discretion in fashioning conditions of probation is even broader than that of a criminal court, since its function is primarily rehabilitation. (In re Tyrell J. (1994) 8 Cal.4th 68, 81, cert. den. sub nom. Tyrell J. v. California (1995) 514 U.S. 1068; In re Binh L. (1992) 5 Cal.App.4th 194, 203, cert. den. sub nom. Binh Van Le v. California (1992) 506 U.S. 959.) Because of this distinction, a condition of probation that might be improper for an adult probationer may be permissible for a minor under the juvenile courts supervision. (In re Tyrell J., supra, 8 Cal.4th at pp. 81-82.)
To be valid, a condition of probation must be reasonably related to the crime of which the offender was convicted or to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Bauer (1989) 211 Cal.App.3d 937, 942 [conjunctive test].) Although the present incident may not by itself justify a condition of juvenile probation, the minors history may. (See In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153; see also In re Tyrell J., supra, 8 Cal.4th at p. 81.) We test the appropriateness of a condition of probation based on the abuse of discretion test. We will uphold the juvenile courts exercise of its discretion unless its decision exceeds the bounds of reason, considering all the circumstances. (See, e.g., People v. Carbajal (1995) 10 Cal.4th 1114, 1121 [adult matter].)
In this matter, Felix argues that there was no evidence before the juvenile court to justify imposition of gang conditions of probation. He asserts that the juvenile court had no factual basis for believing that he was at risk of falling under the influence of a gang. He dismisses the evidence before the juvenile court as lacking credibility.
In fact, the evidence was conflicting—although Felixs mother later denied this at the disposition hearing, she told the probation officer that she was so concerned that her son might be associating with gangs that she moved him from one school district to another. The juvenile court, considering all the evidence before it, concluded that there was a legitimate concern about Felixs involvement with gangs. On the basis of its explicit rejection of his mothers testimony and its reliance instead on her statements as reported by the probation officer, it imposed the gang-related conditions of probation. Felix challenges the courts valuation of the probation report over his mothers testimony, but a probation report may form the factual basis of a juvenile courts exercise of its discretion. (See In re Clarence B. (1974) 37 Cal.App.3d 676, 683; see also Welf. & Inst. Code, § 706; Cal. Rules of Court, rule 1492(b).)
Even though the current offense was not gang-related, Felixs history of attraction to gangs permitted the juvenile court to impose such conditions of probation. (See In re Tyrell J., supra, 8 Cal.4th at p. 81; In re Frankie J., supra, 198 Cal.App.3d at p. 1153.) Associating with gang members is the first step to gang involvement. Thus, the propriety of gang terms of probation does not turn on whether a minor is currently involved in a gang. (People v. Lopez (1998) 66 Cal.App.4th 615, 625-626.) Separating Felix from his delinquent peers will tend to reduce the likelihood of his participation in future criminal activity. (See, e.g., In re Josh W. (1997) 55 Cal.App.4th 1, 6.) As there was evidence—albeit conflicting—to support the juvenile courts underlying evidentiary finding, that court did not abuse its discretion when imposing gang conditions of probation on this juvenile.
II. FIRST AMENDMENT
Felix also contends that the juvenile court conditions of probation impermissibly violated his First Amendment rights to freedom of speech and association. We begin by measuring the constitutional protections that apply in the situation before us. A probationer is not entitled to the same degree of constitutional protection as other citizens. (People v. Lopez, supra, 66 Cal.App.4th at p. 624; People v. Peck (1996) 52 Cal.App.4th 351, 362.) In juvenile court, a condition of probation may be constitutional even if a similar condition imposed on an adult probationer would not, because of the juvenile courts broader discretion and a minors lesser liberty interest. (See In re Tyrell J., supra, 8 Cal.4th at pp. 81-82; In re Eric J. (1979) 25 Cal.3d 522, 530.) Felix acknowledges the lesser protections afforded to juvenile probationers, but argues that the gang conditions of probation were not narrowly tailored to him or narrowly drawn to serve his rehabilitation.
Even conditions of probation that infringe on a constitutional right may be permissible if those conditions serve the purposes of rehabilitation and public safety. (People v. Peck, supra, 52 Cal.App.4th at p. 362.) Such conditions will pass constitutional muster if they are narrowly drawn to serve these important interests and specifically tailored to the individual probationer. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; In re Michael D. (1989) 214 Cal.App.3d 1610, 1616; In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373; see U.S. v. Bolinger (9th Cir. 1991) 940 F.2d 478, 480.) The First Amendment right to free association may be restricted if reasonably necessary to accomplish an essential need of the state and of public order. (People v. Lopez, supra, 66 Cal.App.4th at pp. 627-628.) Such restrictions are part of the nature of the criminal process. They are valid if primarily designed to meet the end of rehabilitation and public protections and are reasonably related to such ends. (Id. at p. 628; see People v. Peck, supra, 52 Cal.App.4th at p. 363.) By placing restrictions on Felixs association with gang members, the juvenile court attempted to assist him in successfully completing probation. Such conditions of probation are permissible. (See People v. Robinson (1988) 199 Cal.App.3d 816, 818; see also In re Michael D., supra, 214 Cal.App.3d at pp. 1616-1617.) In the same manner, the First Amendment right to free speech is not absolute. (People v. Lopez, supra, 66 Cal.App.4th at p. 628.) Conditions of probation may constitutionally preclude a minor from speaking with gang members. (See id. at pp. 628-629.)
When a court entertains genuine concerns that a minor is in danger of falling under the influence of a gang, an order directing the minor to refrain from gang association is a reasonable preventative measure to avoid future criminality and to set the minor on a productive path. Evidence of current gang membership is not required in order to impose such conditions of probation to steer a minor away from a destructive path. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502, disapproved on another ground in In re Sade C. (1996) 13 Cal.4th 952, 962 fn. 2.) Precluding a minor from being present at known gang gathering areas and associating with gang members is reasonably designed to direct the minor away from gang activity, as is the prohibition against wearing gang colors and other indicia. The restriction on court attendance is intended to prevent the gathering of gang members that may intimidate witnesses at court proceedings. All these conditions of probation are reasonably intended to address problems of gang affiliation. (In re Laylah K., supra, 229 Cal.App.3d at p. 1502; see People v. Lopez, supra, 66 Cal.App.4th at p. 626.) These restrictions were not unlawful but promoted the juvenile courts goals of rehabilitation and public safety by forbidding conduct that is reasonably related to future criminality. (See People v. Lopez, supra, 66 Cal.App.4th at p. 626.)
Felix does not offer any specific attack on a specific condition of probation. The essence of his constitutional claim appears to be based on his underlying contention that there is nothing about his crime or his background justifying any gang restriction. As there was no evidence of gang association, no prohibition on future association is justified, he argues. We have already found that the juvenile
court had sufficient evidence to support its finding that Felix was interested in or involved with a gang. (See pt. I., ante.) Thus, we necessarily reject this claim of error based on this erroneous factual premise.
The juvenile court order is affirmed.
We concur: Kay, P.J., and Rivera, J.