Opinion
A151884
08-10-2018
In re DUSTIN B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DUSTIN B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1700687)
Dustin B. (Minor) pleaded no contest to allegations in a petition filed under Welfare and Institutions Code section 602 that he committed felony grand theft from a person and misdemeanor alteration of an imitation firearm (a BB gun) to make the imitation look more real. He now appeals from two disposition orders: his commitment to the county's Youthful Offender Treatment Program at juvenile hall, and a probation condition prohibiting him from entering Walnut Creek without a parent. We conclude that the juvenile court did not abuse its discretion in the commitment and that the probation condition, which was not challenged below, is not facially overbroad. We shall affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
We draw our summary of the underlying facts from probation department reports.
Minor and another male, I.R., were known to Walnut Creek police because of prior contacts within that city. One afternoon, Minor, then age 16, and I.R. approached two teenage girls, A.D. and K.G., who were in a restaurant in Walnut Creek waiting for their order. The girls knew Minor and I.R. from seeing them around the mall, and through other acquaintances, and knew that Minor and I.R. had a reputation for stealing cell phones and selling alcohol.
Minor and I.R. sat at a table with the girls and had a conversation during which I.R offered to sell A.D. a bottle of alcohol in his backpack, but she declined. Minor and I.R. left the restaurant to speak with a friend outside, leaving a backpack on the table. A couple of minutes later, the girls left the restaurant, and were approached by Minor and I.R. I.R. accused the girls of taking the backpack he had left at the table. The girls said they had left the backpack where it was, at which point I.R. took K.G.'s cell phone from her hand and headed back to the restaurant with Minor.
The girls followed Minor and I.R. into the restaurant, where I.R. spoke to an employee who retrieved the backpack, which had been stored for safekeeping. Then, because the four were arguing about the cell phone, the employee told them all to leave.
Once outside, Minor removed a black handgun, later revealed to be a replica Glock BB gun, from his backpack. K.G. was afraid, but reached into Minor's shirt pocket and retrieved her cell phone. I.R. lunged at A.D. and grabbed her purse. They struggled over the purse, but I.R. eventually got it from her and he and Minor then fled. Minor admitted that because A.D. would not give them her purse, he "cocked" the gun, and that once he cocked it, she gave it to them.
The next afternoon, Minor and I.R. entered the Target store in Walnut Creek and went to the liquor aisle, where I.R. put several bottles of alcohol into a shopping cart. Then they both put other items from the candy aisle in the cart. With Minor following, I.R. pushed the cart past the cash registers and out of the store without paying. Loss prevention officers approached Minor and I.R. and told them to stop. When police arrived, Minor and I.R. admitted they had gone to Target to steal alcohol which they intended to sell, and that they had successfully stolen alcohol from that store in the past. During questioning, Minor admitted involvement in the previous day's events, and a search of his backpack revealed the imitation firearm that Minor had used. Minor said he regularly carries the imitation because it looks real and makes him feel powerful.
The district attorney filed a wardship petition under section 602 alleging three counts against Minor: felony second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), count 1), with an enhancement for personally using a replica firearm (Pen. Code, § 12022, subd. (b)(1)); misdemeanor alteration of markings of imitation firearm (Pen. Code, § 20150, count 2); and misdemeanor second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b), count 3.) The petition was amended to add count 4, felony grand theft from a person (Pen. Code, § 487, subd. (c).) Counts 1, 2 and 4 arose from the interaction with A.D. Count 3 arose from the events at Target.
Minor pleaded no contest to counts 2 and 4, and the remaining counts were dismissed.
At the disposition hearing, Minor was adjudged a ward of the court with no termination date and committed to the Youthful Offenders Treatment Program (YOTP) at juvenile hall. Minor's maximum custody time was specified as three years, four months. The court imposed several conditions of probation including the requirement that he not be in the city or unincorporated area of Walnut Creek unless accompanied by a parent (travel condition).
DISCUSSION
A. Placement at YOTP
1. Applicable Law
Under section 726, subdivision (a), a minor who is adjudged a ward of the court may not be removed from the physical custody of their parent or guardian unless the court makes one of three specified findings, one of which is "[t]hat the welfare of the minor requires that custody be taken from the minor's parent or guardian." (§ 726, subd. (a)(3).) If this finding is made for a minor adjudged a ward of the court under section 602, possible placements include a juvenile home, ranch, camp, forestry camp, or juvenile hall. (§ 730, subd. (a).)
"We review the court's placement decision for an abuse of discretion. (In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320.) We review the court's findings for substantial evidence, and ' "[a] trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." ' (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288 . . . .) ' " ' "In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law." ' " ' (Ibid.)" (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154.)
"The purpose of the juvenile delinquency laws is twofold: (1) to serve the 'best interests' of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and 'enable him or her to be a law-abiding and productive member of his or her family and the community,' and (2) to 'provide for the protection and safety of the public . . . .' (§ 202, subds. (a), (b) & (d); In re Myresheia W. (1998) 61 Cal.App.4th 734, 740, 741; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1384.) [¶] To accomplish these purposes, the juvenile court has statutory authority to order delinquent wards to receive 'care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of [the juvenile court law] . . . .' (§ 202, subd. (b).)" (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615.)
2. Additional Background
The probation department disposition report recommended that Minor be committed to the YOTP, even though the Juvenile Assessment and Intervention System (JAIS) classified him as having a low risk level for reoffending. Minor reported first smoking marijuana at age 15, and, although he had completed his sophomore year of high school, he had completed just 65 of the 220 credits required for graduation. The report opined that in view of the serious nature of his offense in cocking a gun to scare the victims of theft, and concerns for community safety and Minor's well-being, a YOTP commitment, along with wardship, would address Minor's needs to be held accountable for his actions, to learn better decision making along with the importance of community safety, and to develop empathy for others. Minor, who had spent 26 days in juvenile hall pending disposition, was ranked at the lowest behavior level during his time there ("bronze," which is below satisfactory). The department also reported that Minor had been screened for the Orin Allen Youth Rehabilitation Facility (Orin Allen), but was found not acceptable because he used a firearm in committing a crime.
The probation department report includes the statement, "A review of the minor's family dynamics indicate that an out of home placement has been considered and is not appropriate at this time." Minor suggests on appeal that the statement is inconsistent with the department's conclusion that commitment to YOTP would address his needs. The Attorney General suggests that in the report, the phrase "out of home placement" referred to a group home. In any event, at the disposition hearing, Minor's counsel did not call attention to the statement in the report; in his argument, he clearly acknowledged that the probation department recommended commitment to YOTP. We find no inconsistency.
The department reported that Minor and his mother both wanted Minor to be placed on home supervision and perform community service. In a letter to the judge, Minor acknowledged that he had acted wrongly, and apologized. He wrote that life at home was hard for him because his younger brother died of brain tumors when Minor was 8; that when he is at home he thinks "about it a lot"; and that he tended to stay away from home to get his mind off things. Minor's mother believed that commitment to Orin Allen was "too extreme," but she said "a few more weeks in juvenile hall; long enough to realize what he did" was acceptable to her.
According to the probation department, Minor's mother previously reported she had found Minor in possession of the replica firearm and taken it away, but Minor retrieved it when she was away. She also reported that Minor constantly talked back to her at home and refused to listen to her advice. She said she had warned him on numerous occasions that if he continued his behavior, it was only a matter of time before he got into legal trouble.
At the disposition hearing, Minor's counsel argued that Minor should be sent home on an ankle monitor or, failing that, committed to Orin Allen. Minor's counsel argued that commitment to YOTP was "very strange" for a person with a low risk-level for reoffending. He acknowledged the seriousness of Minor's offense, while arguing that Minor had used a replica firearm, which was less serious and less dangerous than using a real one.
Counsel referred to "the Boy's Ranch" which is clearly a reference to Orin Allen, a facility for young males which is sometimes referred to as "the ranch." (See In re Edward B. (2017) 10 Cal.App.5th 1228, 1232 (Edward B.) [referring to Orin Allen as "the ranch"].)
The district attorney argued that commitment to YOTP was appropriate in light of the impulsiveness and level of violence that Minor exhibited in displaying a replica firearm that, according to Minor, looks real and makes him feel powerful. The district attorney also emphasized Minor's use of marijuana and his participation in stealing alcohol, apparently for sale to minors. The district attorney argued that home supervision would not provide Minor the structure he needs, or adequately address public safety concerns given Minor's conduct.
The probation department believed that the seriousness of Minor's offense was illustrated by the cocking of the gun, which he wanted his victim to believe was real, to intimidate her so she would give up her property. The department's position was that committing Minor to YOTP was appropriate; that because he used a firearm in his crime he was not eligible for placement in an unlocked facility, "because it is thought that when a minor uses a weapon in the commission of a crime, that raises the seriousness of the threat to the community up [a] few notches." The department concluded that at YOTP "we will know [Minor's] not smoking, he's not drinking, he's not robbing, and he's going to school, and it will keep the community safe until he can reevaluate some things in his life because it seems like things are way out of whack."
The juvenile court judge commented, "The use of the firearm, even though it was a BB gun, but still used as if it were an actual firearm does cause great concern to the Court. The marijuana use also is of great concern, and the alcohol. His performance in school, or lack thereof, all really do point to a YOTP commitment, even though the JAIS was low." After stating that Minor would be adjudged a ward of the court, the judge stated, "His welfare requires that custody be removed from his parents." The judge identified beneficial programs available to Minor at YOTP: he could catch up on his schooling and go into a regular school upon his release; the Thinking 4 A Change program, could "retune him so he doesn't go down this path in the future"; and the victim impact program could help him understand the effects of his conduct. The judge expressed concern about the danger to Minor in pulling a gun, even a fake one; young people attempting to rob someone with a gun had been killed by their intended victims. The judge concluded by expressing her hope that the structured program at YOTP would "get [him] on the track, and he will do well and go back out in the community and be a mentor to young people."
3. Analysis
In a section of his brief that contains very few citations to the record or to legal authority, Minor argues that the juvenile court abused its discretion in committing him to YOTP because the commitment "focused only on punishment" and because a "less restrictive placement would have been sufficient to rehabilitate [Minor] and protect the community." The arguments lack merit.
In claiming that the juvenile court focused only on punishment, Minor disregards statements by the juvenile court judge discussing the rehabilitative programs available to Minor in the "structured program" at YOTP. Minor points to a web site describing YOTP as intended for "serious and/or repeat youthful male offenders, age 16-21" to argue that the program is not appropriate for him. But even Minor and his trial counsel agreed that Minor's offense was serious, and Minor was 16 when he committed his offenses and when he was sentenced. Although Minor had no prior criminal history, he admitted to having previously stolen alcohol from the same store where he was caught.
In arguing that a less restrictive placement would have sufficed to rehabilitate him, Minor appears to suggest that the court is required to follow a particular order in placement, starting perhaps with home detention, and then moving stepwise to more restrictive environments. But that is not the law: the juvenile court is not required to try other options before ordering a restrictive placement. (In re Eddie M. (2003) 31 Cal.4th 480, 507.) Nor does a low JAIS classification mean that a restrictive commitment is inappropriate, as Minor concedes. In any event, the probation department here considered a less restrictive placement at Orin Allen, but Minor did not qualify because he used a weapon in his offense.
Minor contends that the juvenile court did not make the findings with supporting facts required by section 726, and contends that "his mother expressed a proper response to his behavior and willingness to discipline him." To the contrary, the juvenile court found that minor's welfare required his removal from the custody of his parents. Minor's mother's attempts at discipline had apparently been unsuccessful, as shown by Minor disregarding her numerous warnings that he needed to change his ways, and his retrieving his replica firearm after his mother had confiscated it from him and then using it to intimidate a victim and potentially endangering himself. He constantly talked back to his mother and wouldn't listen to her. He stole and sold alcohol. And Minor's mother recognized that Minor could use more time in juvenile hall to realize what he had done.
In these circumstances, Minor has failed to show that the juvenile court abused its discretion in committing him to YOTP. B. Travel Condition
1. Applicable Law
The juvenile court is authorized to impose on a petitioner "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." (§ 730, subd. (b).)
"Well-established principles guide our review. ' "The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents" [citation], thereby occupying a "unique role . . . in caring for the minor's well being." [Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. "[E]ven where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.' " [Citation.] . . . Thus, " 'a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " [Citations.]' (In re Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).)" (Edward B., supra, 10 Cal.App.5th at pp. 1232-1233.)
"The juvenile court's discretion in imposing conditions of probation is broad but not unlimited." (Edward B., supra, 10 Cal.App.5th at p. 1233.) In particular, probation conditions are subject to constitutional challenges on the grounds of overbreadth. A probation condition is "unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.), quoting Victor L., supra, 182 Cal.App.4th at p. 910.) "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." (E.O., supra, 188 Cal.App.4th at p. 1153.)
The usual standard of review for probation conditions is abuse of discretion, but we review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) A defendant must ordinarily object to a condition of probation in the trial court to preserve the right to challenge the condition on appeal (People v. Welch (1993) 5 Cal.4th 228, 237.) But a challenge to a probation condition may be raised for the first time on appeal if the challenge "present[s] pure questions of law based solely on facial constitutional grounds and do[es] not require a review of the sentencing record, and [is] easily remediable on appeal." (Victor L., supra, 182 Cal.App.4th at p. 907, citing In re Sheena K. (2007) 40 Cal.4th 875, 889-890.)
2. Additional Background
The probation department recommended that the court impose a probation condition prohibiting Minor from being at any Target store unless accompanied by a parent. The court imposed the requested condition and imposed the travel condition as well, explaining, "I am adding a further provision because Probation's report indicated that [Minor] just sort of likes to hang out in Walnut Creek, Probation points out that Walnut Creek police are really familiar with him, so [Minor] is not to be in the city and/or the unincorporated areas of Walnut Creek unless he is accompanied by a parent." Minor's counsel did not object to the travel condition, nor to the condition barring him from Target stores unless he is with a parent, which he does not challenge. Nor did Minor's mother make any comment on either restriction.
3. Analysis
Minor asks us to strike the travel condition or modify it to allow him to be in Walnut Creek with the permission of his parent or probation officer.
Minor claims he can challenge the travel condition for the first time on appeal because the condition is unconstitutionally overbroad on its face. Yet he cites no authority that suggests a condition like the one imposed here is facially overbroad, and we conclude that it is not. Minor cites just one case concerning a travel condition, In re Antonio R. (2000) 78 Cal.App.4th 937, which does not help him. In Antonio R., the defendant, whose parents and residence were in Orange County, was found to be "involved in extensive and recent criminal conduct in Los Angeles County," where his "gang [held] court in at least a portion of that county," and his criminal behavior was related to his gang associations. (Id. at pp. 941-942.) The juvenile court imposed a condition of probation that Antonio was to stay out of Los Angeles County unless he was accompanied by a parent or had prior permission from his probation officer. (Id. at p. 939.) Antonio had preserved the issue for appeal, where he argued that the condition was unconstitutionally overbroad. (Id. at pp. 939, 940, fn. 4.) The Court of Appeal acknowledged that Los Angeles County is large and that by being kept away Antonio might be prevented from many things that do not relate to potential criminality. (Id. at p. 942.) But the fact that Antonio was not absolutely barred from Los Angeles County, and could be there with "his parents' cooperation or his probation officer's assent" saved the condition from overbreadth. (Ibid.)
Minor's parent and residence are in Pittsburg. Even if we assumed that a condition absolutely barring him from Walnut Creek would be facially overbroad, the condition at issue here is not absolute. Minor is allowed to travel within Walnut Creek with a parent, just as the permitted probation condition in Antonio R. allowed the minor to travel within Los Angeles county with a parent. Minor offers no argument or authority to suggest that in order to avoid overbreadth the travel condition must also allow him to travel independently with his probation officer's prior permission.
Further, Minor simply disregards the evidence that he frequented the mall in Walnut Creek, he was well-known to the Walnut Creek police from previous contacts in Walnut Creek, and he had previously stolen alcohol from the Target store in Walnut Creek. These facts weaken any claim that the travel condition is not carefully tailored and reasonably related to the state's interest in his reform and rehabilitation.
Because the travel condition here is not facially overbroad and Minor failed to object to it at the juvenile court, we conclude he has forfeited any challenge on appeal, and we decline to strike or modify the condition.
Minor is free to petition the juvenile court to modify the terms of his probation under section 778, should circumstances warrant. (In re Luis F. (2009) 177 Cal.App.4th 176, 192.) --------
DISPOSITION
The orders appealed from are affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.