Opinion
A156136
08-31-2020
In re D.Y., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.Y., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J18-00057)
Defendant D.Y. was convicted of battery and second degree robbery and placed on probation. Defendant challenges the electronics search and gang-related probation conditions, contending they are invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded by statute on other grounds as stated in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6, and unconstitutionally overbroad. The People agree that limited remand is appropriate to allow the juvenile court to tailor the electronics search condition more narrowly to its legitimate rehabilitative purpose. We agree. We also hold that remand is appropriate as to gang-related probation condition No. 32 because it is overbroad.
I. BACKGROUND
This case involves two incidents. A. Incident One
D.Y. was involved in a fight while at school. Roughly a week after the incident, the school obtained two videos from the victim's mother; the first showed D.Y. pushing the victim to the ground and punching him multiple times, while the second showed D.Y. bragging about the incident on Snapchat. In connection with this incident, D.Y. was charged with misdemeanor battery under Penal Code sections 242 and 243.2, subdivision (a)(1), to which he later pleaded no contest. B. Incident Two
D.Y. was involved in a second altercation during which D.Y. asked to use another juvenile's cell phone. After the juvenile handed the phone to D.Y., D.Y. told the juvenile "it's took." When the juvenile told D.Y. to "stop playing" and to give him his phone back, D.Y. responded by saying, "What are you going to do about it?" The victim attempted to reach for the phone and D.Y. punched him multiple times in the face, splitting his lip. D.Y. then fled the scene.
Upon learning of the incident, the victim's mother posted a message on Facebook asking for any possible information about the robbery. In response, she received a message from her cousin which included an Instagram video showing a boy holding a cell phone and asking if anyone could help him "break into the phone" and to "[g]ive me a price." She then shared this video with her cousin "Boo," who claimed he knew the boy in the video and eventually directed her to the Lido Square apartment complex where she met with D.Y.'s brother, who returned the phone to her. The victim then confirmed that the returned phone was his and met with Pittsburg police, eventually identifying D.Y. through yearbook photos of potential suspects. In connection with this incident, D.Y. was charged with second degree robbery pursuant to Penal Code sections 211 and 212.5, subdivision (c). The court conducted a contested jurisdictional hearing and found the allegation true. C. Dispositional Hearings:
At the November dispositional hearing, the probation report concluded that D.Y. was not affiliated with any gangs. However, the juvenile court explained that while reviewing several photos during the contested jurisdictional hearing, some of which show D.Y. throwing "hand signs," it became concerned that D.Y. was "associating with or [was] actually involved in gang activity." D.Y.'s attorney objected, stating that "probation [had] already made the determination that [D.Y.'s] not affiliated with gangs." The court continued the matter and requested probation to contact local law enforcement to get further clarification on whether D.Y. was associating or affiliated with any gangs.
At the December dispositional hearing, probation filed an updated report stating that "it appears [D.Y.] may be involved in gang activity." The report explained that D.Y.'s Instagram account contains a photo in which D.Y. is "tagged at the location of Lido Square Townhouse," where he lives, and that the area is a "popular 'hangout' for members of the street gang, 'Midtown Gang' or 'MTG.' " The report further discussed D.Y.'s Instagram page, explaining that "it reads '2100dayday,' which is a combination of the block of the Lido Square Townhomes, as well as, the minor's nick name [sic]. Next to '2100dayday,' there are two gun-emoji symbols. Underneath '2100dayday,' it reads, 'mtg,' which is the abbreviation for 'MidTown Gang.' " Additionally, the report references two photos of D.Y., one in which he is "throwing up a hand sign in unison with two other juveniles throwing up the same hand sign," and another in which he "is seen with four other juveniles, who are throwing up similar hand signs with the caption 'The street life get rugged I got niggas out here thuggin 2100 P and an emoji globe symbol.' "
The probation report refers interchangeably to the "Lido Square Townhouse," "Lido Square Townhouses," and "Lido Square Townhomes." We refer to the location as the "Lido Square Townhouses."
Based on these facts, the probation department concluded that D.Y. "is involved in gang activity and could possibly be affiliated with the 'MidTown Gang' in Pittsburgh, CA." The probation officer recommended gang terms, stating that "[t]he gang terms and conditions [would] assist the minor in ceasing any potential gang affiliation or activity." The prosecutor also requested the gang conditions as well as an electronic search and seizure condition. Defense counsel again objected to the gang terms, and the court stated, "It's clear to me . . . that [D.Y.] has been dabbling in conduct that is consistent with association with a gang, and I am concerned about his safety and well-being as well the community's. And I think there's ample support for ordering the gang terms." Prior to the close of the hearing, defense counsel also objected to the electronic search clause, stating, "I just wanted to make clear for the record that I am objecting to the electronic search clause."
Condition No. 31 provides: "The minor shall not knowingly associate with anyone known to the minor to be a gang member or associated with a gang, or anyone who the DPO informs the minor to be, a gang member or associated with a gang." Condition No. 32 provides: "The minor shall not knowingly participate in any gang activity and shall not visit or remain in any specific location known by the minor to be, or that the DPO informs the minor to be, an area of gang-related activity."
At the conclusion of the hearing, the juvenile court declared D.Y. a ward of the court, ordered him to reside with his mother, and placed him on probation with various terms and conditions, including the gang-related conditions and an electronics search condition.
The electronic search condition provides: "You must submit your cell phone or any other electronic device under your control to a search of any medium of communication reasonably likely to reveal whether you are complying with the terms of your probation, with or without a search warrant, at any time of day or night. Such medium of communication includes text messages, voicemail messages, photographs, email accounts & other social media accounts and applications such as Snapchat, Instagram, Facebook, and Kik. You shall provide access codes to Probation or any other peace officer upon request to effectuate such search."
D.Y. timely appealed.
II. DISCUSSION
A. The Electronic Search Condition Shall Be More Narrowly Tailored to Its Legitimate Rehabilitative Purpose.
Defendant contends that the electronics search condition is invalid under Lent and is unconstitutionally overbroad. The People concede that remand is appropriate under In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) to allow the juvenile court to more narrowly tailor the condition to the legitimate rehabilitative purposes that it serves. We agree and shall remand for that purpose. B. On Remand , Condition No. 32 Shall Also Be Clarified.
Although we disagree with defendant's argument that the gang conditions are invalid under Lent, a limited remand to modify condition No. 32 is appropriate because the record demonstrates that it is unconstitutionally overbroad.
1. Defendant's Argument Under Lent Fails Because Preventing Gang Association is Reasonably Related to the Prevention of Future Criminal Activity.
"The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct." (In re Jose C. (2009) 45 Cal.4th 534, 555.) To achieve this, a juvenile court may order a ward to probation. (Welf. & Inst. Code, §§ 727, subd. (a)(1)-(3), 730, subd. (a).) According to Welfare and Institutions Code section 730, subdivision (b), "the court may impose and require 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." On appeal, the reasonableness of a probation condition is reviewed for abuse of discretion. (Ricardo P., supra, 7 Cal.5th at p. 1118.) "Specifically, we review a probation condition 'for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' " (Ibid.)
Lent provides a three-part test for review, holding that a probation condition "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.' " (Lent, supra, 15 Cal.3d at p. 486.) "The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' [Citation.] [¶] Although Lent involved an adult probationer, the Courts of Appeal have 'consistently held that juvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under Lent.' " (Ricardo P., supra, 7 Cal.5th at pp. 1118-1119.)
Defendant contests the gang-related probation terms and contends that all three Lent prongs have been satisfied in that the conditions are unrelated to defendant's offenses; the conditions relate to defendant's associations, which is conduct that is not criminal; and the gang conditions do not relate to future criminal activity because the record does not establish that defendant is involved in gang-related activity. We disagree and find that the record contains sufficient evidence to support the court's determination that defendant may be involved in gang-related activity and to justify its imposition of the gang-related probation conditions. Defendant's challenge therefore fails to satisfy the third prong under Lent.
Numerous references in the updated probation report support the finding that defendant may be involved with the "MidTown Gang." The report discusses defendant's Instagram where he references "2100dayday" and "mtg," an abbreviation of the "MidTown Gang." The record also describes a number of photos on Instagram in which he is tagged at the Lido Square Townhouses, a popular hangout for the "MidTown Gang." Defendant argues that the location tag at the townhouses and reference to "2100" does not justify the inference of gang association because defendant lives in the Lido Square Townhouses. While these two facts are true, this argument ignores the critical context: Below the number "2100," defendant lists "mtg," a reference to the "MidTown Gang." Additionally, two captions of the photos in which he is tagged at the Townhouses read, "The street life get rugged I got niggas out here thuggin 2100 P" and "U see wat we throwing up" (referencing the hand signs the boys in the photo are making). Thus, defendant is not simply tagged at the townhouses, he is tagged in photos referencing "street life," "thuggin," and "throwing up" hand signs. While the record does not unequivocally establish that defendant is a member of the "MidTown Gang" it does support the inference that he is associated with it or may aspire to be.
The third prong of Lent requires the probation condition to be reasonably related to future criminal conduct. (Lent, supra, 15 Cal.3d at p. 486.) The record provides sufficient evidence to support the juvenile court's finding that defendant is involved in gang activity and may be associated with the "MidTown Gang." Therefore, it is reasonable to believe that the gang-related conditions will serve to deter defendant from engaging in future gang-related conduct. As gang-related conduct often, if not always, involves crime, the gang conditions are reasonably related to deterring future crime. Thus, defendant's challenge to the gang conditions fails to satisfy the third prong of Lent and the trial court's decision in imposing the conditions was neither arbitrary nor capricious. (Ibid.; Ricardo P., supra, 7 Cal.5th at pp. 1118-1119.)
2. Condition No. 32 Shall be Clarified Due to Overbreadth.
Defendant also contends that gang conditions No. 31 and No. 32 are unconstitutionally overbroad because they infringe on his constitutional right of association. A juvenile court has discretion in setting probation conditions, but when a probation condition limits a person's constitutional rights, the court "must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) We review constitutional challenges to probation conditions de novo. (In re J.B. (2015) 242 Cal.App.4th 749, 754.)
Defendant contends "there is no reasonable relationship between the gang conditions and [his] particular rehabilitation needs or the protection of the public; thus, the condition is not narrowly drawn, closely tailored, or reasonably related to any legitimate end." This assertion rests on the premise that the court erred in finding that defendant was associated with a gang, a contention that is contrary to the record. As previously discussed, the record supports the court's finding that defendant may be associated with the "MidTown Gang." Because there is a reasonable relationship between the gang conditions and the type of rehabilitation that is needed to protect both defendant and the public, the condition is closely tailored for the purpose of the condition, which is to deter future gang-related activity. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
Defendant also contends that condition No. 31 is overbroad because it puts him at a heightened risk of being in violation for "associating" with known gang members in a non-culpable manner. Defendant claims that casual and incidental contact with known gang members at school and within his community is unavoidable and if this innocent contact is deemed by probation to be "association," he would be subject to a violation for lawful conduct that he cannot avoid. We agree that such contact may be unavoidable, however, the argument misses the mark because the non-culpable act of engaging in unavoidable and incidental contact with known gang members cannot support a violation of probation under a reasonable reading of the condition. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295 ["A court may not revoke probation unless the evidence supports 'a conclusion [that] the probationer's conduct constituted a willful violation of the terms and conditions of probation.' [Citation.] Where a probationer is unable to comply with a probation condition because of circumstances beyond his or her control and defendant's conduct was not contumacious, revoking probation and imposing a prison term are reversible error"]; cf. In re Oswaldo R. (2017) 11 Cal.App.5th 409, 417 [" 'probation condition should not be invalidated as unconstitutionally vague " ' "if any reasonable and practical construction can be given to its language" ' " ' "].)
While we do not find the term "association" to be unconstitutionally overbroad under a reasonable reading of the condition, the court on remand may wish to consider providing additional clarity, "[b]oth to inform the probationer and to guard against the possibility of arbitrary enforcement." (In re Oswaldo R., supra, 11 Cal.App.5th at p. 418.) --------
However, we do take issue with the fact that condition No. 32 on its face appears to forbid defendant from being at his residence in the Lido Square Townhouses, insofar as that area is considered to be a place where members of the MidTown Gang frequently congregate. As explained by the court in In re Victor L. (2010) 182 Cal.App.4th 902, "if a minor live[s] within the area described by the gang-related boundaries, his banishment from it would be constitutionally suspect. [Citation.] If he worked or went to school in the district so defined, the condition would need to permit travel as necessary to attend to those aspects of his livelihood or education. [Citations.] Such considerations call for an individualized list of stay away areas, together with any exceptions necessary to reasonably accommodate the minor's legitimate work and educational needs." (Id. at pp. 916-917, fn. omitted.) Condition No. 32 states that D.Y. "shall not knowingly participate in any gang activity and shall not visit or remain in any specific location known by the minor to be, or that the DPO informs the minor to be, an area of gang-related activity." As the probation department has stated generally that the Lido Square Townhouses, where defendant lives, is a popular MidTown Gang "hangout," the language of the condition on its face prohibits defendant from going to or "remain[ing]" in the location of his residence. Rather than setting forth a complete ban from the Lido Square complex where the MidTown Gang congregates, the condition should be modified to set forth "an individualized list of stay away areas . . . and exceptions necessary to reasonably accommodate [defendant's] legitimate work and educational needs." (In re Victor L., supra, 182 Cal.App.4th at p. 917.)
III. DISPOSITION
The case shall be remanded to allow the juvenile court to tailor the electronic search condition more narrowly to the legitimate rehabilitative purposes that it serves. Additionally, with further information from the probation department and counsel, the court shall modify condition No. 32 to permit defendant travel to and from his home in the Lido Square Townhouses and to set forth defined areas within the complex from which defendant must stay away.
/s/_________
BROWN, J. WE CONCUR: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.