Opinion
A102995.
11-24-2003
In re Terez M., A Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TEREZ M. Defendant and Appellant.
Terez M. appeals the probation conditions imposed upon him by the juvenile court after he admitted committing misdemeanor unauthorized entry of a dwelling house (Pen. Code, § 602.5, subd. (a)), and was adjudged a ward of the court. He contends the conditions prohibiting his gang association and restricting his attendance at court proceedings are unreasonable and constitutionally overbroad. We reject these contentions and affirm the probation order.
Pursuant to the plea bargain, four other allegations were dismissed.
BACKGROUND
At approximately 11:00 p.m. on April 28, 2003, appellant, then age 17, unlawfully entered a vacant house and was apprehended by the houses caretaker. He admitted to prior unauthorized entries of the house when he "had nothing to do."
The probation departments detention hearing report noted that in September 2002 appellant was involved in a fight with Bruce S. at Vallejo High School. Bruce told police that on the first day of school he and appellant had almost fought over the colors red and blue. Following the September fight, appellant told police that he and Bruce had "bad blood" between them. Appellant also said that on the day of the fight he wore blue, Bruce wore red and waved a red and white rag in front of his face.
The probation officers dispositional report noted that appellants mother believed that negative "peer pressure" had contributed to appellants misbehavior. The report also stated that although appellant denied being a gang member, he said "that he is part of a `group known as `Westside, whose members wear the color blue, as people from Country Club Crest wear red. He indicated that he associates with this group of people, as the `OGs in his neighborhood told him he should be part of that group since he lives on that side of town. He acknowledged that members of this `group have been involved in fights with people from a different part of Vallejo. It should be noted that the minor wore blue clothing to the disposition interview." The section of the report entitled "Evaluation" stated, "[Appellant] began violating the rules within the home, cutting school, and associating with peers who were involved in gang activity, substance abuse and other illegal behavior. . . . [¶] . . . [¶] Although the minor denies being a gang member, he admits to associating with peers who are involved in gang activity and has been involved in fights as part of that group. This association is contributing to his negative behavior in the community; therefore, it is recommended that gang terms be included in his conditions of probation."
The court ordered the following "gang terms and conditions" of probation: That appellant:
1. "Not be present at any known gathering areas of any street or known street gang(s)."
The court stated that " `gang means a criminal street gang as defined in [section] 186.22, subdivisions (e) and (f)."
2. "Not associate with any known members or associates of any gang."
3. "Not wear any gang-associated clothing or emblems."
4. "Not possess any gang-related paraphernalia including, but not limited to, gang graffiti, symbols, photographs, members rosters, or any gang writings and publications."
5. "Not acquire any tattoos, either permanent or temporary."
6. "Not be present at any court proceeding to which the minor is not a party, a defendant, or a subpoenaed witness."
DISCUSSION
I. The Gang Association Conditions Are Not Unreasonable or Overbroad
Appellant challenges the first five of the aforementioned gang conditions of probation on the ground that they are not reasonably related to his crime or his rehabilitation because there is no substantial evidence of his association with a gang or his danger of succumbing to gang pressures. In particular, he argues that there is no evidence that "Westside" is a statutorily defined criminal street gang under Penal Code section 186.22 (hereafter section 186.22).
Subdivisions (e) and (f) of section 186.22, define a criminal street gang as having as one of its primary activities the commission of one or more enumerated serious offenses, and whose members engage in a pattern of criminal gang activity as shown by sustained juvenile petitions or convictions or two or more of those offenses within three years on separate occasions or by two or more persons.
"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. [Citation.] 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.]" (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.)
"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." (In re Antonio C., supra, 83 Cal.App.4th at p. 1034, citing People v. Lent (1975) 15 Cal.3d 481, 486.) Because the juvenile court has a unique role in caring for the minors well-being, it must consider the circumstances of the crime and the minors entire social history in fashioning probation conditions. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500.) "Even a probation condition which infringes on a constitutional right is permissible where it is ` "necessary to serve the dual purpose of rehabilitation and public safety." [Citations.]" (People v. Peck (1996) 52 Cal.App.4th 351, 362.)
"Where a court entertains genuine concerns that the minor is in danger of falling under the influence of a street gang, an order directing a minor to refrain from gang association is a reasonable preventive measure in avoiding future criminality and setting the minor on a productive course. Evidence of current gang membership is not a prerequisite to imposition of conditions designed to steer minors from this destructive path." (In re Laylah K., supra, 229 Cal.App.3d at p. 1502.)
Here we find the record justified the gang conditions imposed. The probation report states that despite appellants denial of gang membership, he admits to "associating with peers who were involved in gang activity." Appellant admitted an association with a group that wears a color identified with gangs, and admitted that he engaged in a fight in which he and his opponent each wore colors identified with opposing gangs. These admissions provide evidence of gang-related criminal conduct. "Because `[a]ssociation with gang members is the first step to involvement in gang activity " (People v. Lopez (1998) 66 Cal.App.4th 615, 624), the record provides support for the imposition of the challenged gang conditions as a mechanism to prevent future misconduct.
Appellant also contends the gang terms are an overbroad restriction of his federal and state constitutional rights to freedom of association and expression. We disagree.
The court barred appellant from associating only with those known by him to have gang affiliations and, therefore, is sufficiently tailored to provide him with notice of the persons he must avoid. (People v. Garcia (1993) 19 Cal.App.4th 97, 102; People v. Robinson (1988) 199 Cal.App.3d 816, 817-818.)
II. Condition Barring Appellant From Court Proceedings Is Not Unreasonable or Overbroad
Finally, appellant contends the condition which prohibits him from being present at any court proceeding unless he is a party, defendant or subpoenaed witness is unreasonable because nothing in his social history indicates that he is likely to engage in witness intimidation or any other improper conduct related to attending such court proceedings. In addition, appellant argues that the condition is overbroad because it creates a "blanket restriction" barring him from attending court proceedings that he may "need or want to attend for legitimate family or educational purposes."
"The restriction on court attendance is aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings." (In re Laylah K., supra, 229 Cal.App.3d at p. 1502.) As with the other gang-related probation conditions, it is "reasonably designed to address the problem of gang affiliation." (Ibid.) Appellants social history and his own admissions establish his association with persons affiliated with gangs and therefore the restriction on court attendance is reasonable. We also do not find it overbroad. Any restriction on appellants ability to attend a court proceeding for "family or educational purposes" is reasonable when balanced against the important interests in addressing the problem of gang affiliation.
DISPOSITION
The order is affirmed.
We concur. STEVENS, Acting P.J., GEMELLO, J.