Opinion
F075148
03-14-2018
In re T.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.K., Defendant and Appellant.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CEJ600809-1)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Michael G. Idiart, Judge. Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
T.K., a minor, was found by the juvenile court to have committed one violation of Penal Code section 288, subdivision (a). The court removed him from the custody of his parents, granted probation, and placed him with his uncle. T.K. now challenges the imposed conditions of probation forbidding him to associate with gangs or gang members. He also challenges the inclusion in the dispositional order of a maximum term of confinement. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
According to the probation officer's report, T.K. caused his younger brother to copulate him orally on two occasions. At the time these offenses were revealed in November 2016, T.K. was 13 years old and the victim was nine years old.
On November 22, 2016, the district attorney filed a Welfare and Institutions Code section 602 juvenile wardship petition alleging two counts of forcible oral copulation of a child (Pen. Code, § 288a, subd. (c)(2)(B)). At the jurisdictional hearing on January 27, 2017, T.K. admitted to one count of a lewd act on a child (Pen. Code, § 288, subd. (a)) and the original charges were dismissed.
The dispositional hearing was held on February 10, 2017. The court adjudged T.K. a ward, temporarily removed him from the custody of his parent or guardian, imposed GPS monitoring, and placed him under the supervision of the probation department until further order of the court. The dispositional order stated a maximum confinement time of eight years and ordered 32 days of custody credit.
A disputed issue at the dispositional hearing was the inclusion of gang-related conditions among the conditions of probation. The probation officer's report stated that, according to T.K.'s mother, T.K. was not involved with gangs, but his oldest brother associated with Bloods members. The probation officer recommended including probation conditions requiring T.K. not to associate with gangs or gang members.
Defense counsel asked the court not to follow this recommendation. She argued that the gang conditions were not appropriate because T.K. did not associate with any gang, the offense was not gang-related, and the only reference to gangs anywhere in the record was T.K.'s mother's statement that T.K.'s oldest brother associated with Bloods.
The court followed the recommendation and imposed the following conditions of probation:
"You're not to associate with anyone known to the minor to be a gang member.
"For [the] purpose of this paragraph and for conditions of probation in which the word 'gang' appears, that word means a criminal street gang as described by Penal Code Section 186.22, subdivisions (e) and (f).
"You're not to wear, possess, or display any item known by the minor to be gang related, such as any gang insignia, moniker, jewelry, or other marking."
The materials in the appellate record are not entirely clear about T.K.'s placement status after the dispositional hearing. At the time of the offenses, according to the probation report, T.K. was living with his mother on weekdays and his father on weekends. A minute order dated December 19, 2016, stated that T.K.'s request to be released to his uncle was granted. The dispositional order dated February 10, 2017, as well as the transcript of the dispositional hearing, indicated both that T.K. was ordered removed from the custody of his parent or guardian and that he was ordered as a condition of probation to reside with his parent or guardian. There was no reference to the uncle in the dispositional order or the record of the oral proceedings at the dispositional hearing, except that the uncle was present at the hearing, along with T.K.'s mother.
T.K.'s appellate briefs state that T.K. "was ordered released to the custody of his uncle during probation." The People do not dispute the accuracy of this account. We will assume it is correct for purposes of this appeal.
DISCUSSION
I. Probation Conditions
T.K. again argues that the gang-related probation conditions should not have been imposed. We review the juvenile court's imposition of probation conditions under the abuse of discretion standard. (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153 (Frankie J.).) Under this standard, "as long as there exists 'a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be ... set aside.'" (Gonzales v. Nork (1978) 20 Cal.3d 500, 507 (Gonzales).)
Where constitutional considerations arise from probation conditions, a stricter form of appellate review applies (People v. Brandao (2012) 210 Cal.App.4th 568, 573 (Brandao)), at least in adult cases (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1142 (Shaun R.)). T.K. does not claim any such considerations are at issue here.
The Welfare and Institutions Code provides that when a minor is adjudged a ward of the court under Welfare and Institutions Code section 602 and placed on probation, 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." (Welf. & Inst. Code, § 730, subd. (b).) In determining which probation conditions are reasonable for these statutory purposes, the juvenile court should consider "not only the circumstances of the crime but also the minor's entire social history." (In re Todd L. (1980) 113 Cal.App.3d 14, 20.)
Discussing a challenge to probation conditions in an adult criminal case, our Supreme Court stated in People v. Lent (1975) 15 Cal.3d 481, 486, that a condition of probation will not be held invalid unless: (1) it has no relationship to the crime of which the offender was convicted; (2) it relates to conduct not in itself criminal; and (3) it requires or forbids conduct that is not reasonably related to future criminality. This formula applies to juvenile probation as well. (In re Kacy S. (1998) 68 Cal.App.4th 704, 709-710.)
In this case, the parties agree that the gang conditions have no relationship to the lewd act T.K. was found to have committed, and that associating with gangs and gang members is not in itself criminal. T.K. argues that those conditions also are not related to future criminality or, if they are, the relationship is not reasonable because the connection is "'remote, attenuated, tangential, or diaphanous'" (In re Erica R. (2015) 240 Cal.App.4th 907, 913). T.K.'s argument is based on the fact that the record connects only one of T.K.'s brothers with a gang, not T.K. himself. "It was not reasonable to increase appellant's burden, not due to his own choices and actions, but due expressly and exclusively to the choices of his older brother," he maintains.
It bears mentioning that T.K. raises no arguments about any impact of the gang conditions on his family situation. He does not argue, for instance, that his oldest brother is known to him to be a gang member (as opposed to someone who merely associates with gang members) or, if he is, that his relationship with that brother is such that the conditions would interfere with his ability to interact with and receive the support of the rest of his family.
The People argue that the record does show the gang conditions to have a sufficient relationship with potential future criminality. In addition to the oldest brother's association with gang members, the probation report describes T.K.'s school records as indicating that T.K. has been "counseled for a violation of the dress code, attendance, and being disruptive and defiant." In the People's view, these two facts are enough.
The question is a close one and the parties have cited authority giving partial support to both sides. In Brandao, supra, 210 Cal.App.4th 568, relied on by T.K., the Court of Appeal applied the Lent test and found invalid a probation condition prohibiting the defendant from associating with known gang members. The offense of conviction, possession of methamphetamine, had no connection with gangs, nor did Brandao himself or any relative of his. The Court of Appeal opined that the mere general connection between gangs and criminality was not enough to support the condition where there were no gang-related facts in the record. (Id. at pp. 574-577.) It was not appropriate for trial courts to simply "forbid probationers from having contact with any person or entity that could conceivably tempt an individual to stray from the path of the straight and narrow." (Id. at p. 577.)
Unlike in Brandao, here the record indicates that the minor is closely related to a gang associate. Further, Brandao was an adult. "'[J]uveniles are deemed to be more in need of guidance and supervision than adults.'" (Shaun R., supra, 188 Cal.App.4th at p. 1142.) Unlike the trial court in an adult prosecution, the juvenile court "'stands in the shoes of the parents,'" and consequently has broader discretion when imposing probation conditions. (Ibid.) On the other hand, Brandao had a substantial criminal record while T.K. has a record only of minor school discipline. Brandao's criminal record was not gang-related, however. (Brandao, supra, 210 Cal.App.4th at p. 576.)
The People cite Frankie J., supra, 198 Cal.App.3d 1149, In re Laylah K. (1991) 229 Cal.App.3d 1496 (Laylah K.), and People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez). In Frankie J.,, the juvenile court found that the minor committed rape, rape with a foreign object, and oral copulation. The minor challenged a probation condition forbidding him to possess weapons, arguing that no weapons were involved in the offenses. The Court of Appeal upheld the condition as reasonably related to future criminality, noting that the evidence showed the minor's codefendant told him to go get a knife to kill the victim, but the victim escaped before he returned. (Frankie J., supra, 198 Cal.App.3d at pp. 1152-1154.) In Laylah K., Laylah and Sombrah were sisters. They assaulted a stranger because she was wearing red clothing. The juvenile court granted probation with gang conditions. Their aunt said they had been associating with gangs. Sombrah had experienced pressure at school to join the Crips. Both sisters were runaways. The Court of Appeal rejected their argument that the gang conditions were improper because the evidence that the crime was gang-related was slight, their aunt's opinion was speculative, and even if they were associating with gangs, they were not gang members themselves. (Laylah K., supra, 229 Cal.App.3d 1496, 1499-1502.) In Lopez, the defendant was convicted of stealing a car. He received probation and the conditions included gang conditions. Nothing in the record indicated that the crime was gang-related, but the probation report stated that the defendant had gang tattoos and admitted he was a gang member. His history showed a consistent and increasing pattern of criminal behavior. The Court of Appeal held that the gang conditions were reasonably related to the prevention of future criminality. (Lopez, supra, 66 Cal.App.4th at pp. 623-626.)
This case falls in between the authority relied on by T.K. and that relied on by the People. In Brandao, where the record supporting the gang condition was weaker than here, it was invalidated; in Laylah K., Frankie J., and Lopez, where the record was stronger, it was upheld. In fact, it is probably fair to say the facts here resemble those of Brandao more closely than those of Laylah K., Frankie J. or Lopez. In each of those three cases, there were multiple factors supporting the challenged conditions in light of the criteria of Lent, while the only substantial distinctions between this case and Brandao are that here there is a gang-involved family member and that T.K. is a juvenile.
The Brandao court, however, was careful to limit its holding using quite specific terms: "Our holding is narrow. In our view, a no-gang-contact probation condition cannot be imposed on defendant here, given that the record divulges (1) no ties between defendant and any criminal street gang, (2) no such ties involving any member of defendant's family, and (3) no criminal history showing or strongly suggesting a gang tie." (Brandao, supra, 210 Cal.App.4th at p. 576 [italics added].) Thus, under Brandao, the presence of family gang ties is a weighty factor. In light of this and the juvenile court's broad discretion, we conclude there are no grounds for striking the challenged conditions. Whether the gang conditions are reasonably related to future criminality under the circumstances here is at least "fairly debatable" (Gonzales, supra, 20 Cal.3d 500, 507), so we would not be warranted in reversing the juvenile court's discretionary decision. II. Maximum Term of Confinement
T.K. contends that the juvenile court should not have stated a maximum term of confinement in the dispositional order. He maintains that even if the inclusion of this matter in the order has no concrete adverse consequences, it is "not insignificant" because it "tells the wrong story of [his] history under the juvenile court's jurisdiction, casting it in an inappropriately darker light." Whether the dispositional order should state a maximum time of confinement or not is a question of law, which we review de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Topanga & Victory Partners, LLP v. Toghia (2002) 103 Cal.App.4th 775, 779-780.)
The Welfare and Institutions Code specifies the circumstances under which an order in a juvenile delinquency case must state a maximum term of confinement:
"If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." (Welf. & Inst. Code, § 726, subd. (d)(1).)
"Physical confinement" is defined as "placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Department of Corrections and Rehabilitation, Division of Juvenile Justice." (Welf. & Inst. Code, § 726, subd. (d)(5).)
This statute simply states that the maximum term of physical confinement must be stated in the order if the juvenile court removes the minor from the physical custody of his or her parent or guardian in a Welfare and Institutions Code section 602 wardship order. The statute does not say this must be done only if the minor is then committed to a placement in which he or she will be physically confined. T.K. does not claim the juvenile court did not order him removed from the physical custody of his parent or guardian in a Welfare and Institutions Code section 602 wardship order. Since it did so, the statement of a maximum term was called for by the statute.
T.K. observes that his placement with his uncle does not involve physical confinement, and he cites cases holding that custody credits, which would be counted against the maximum confinement period, are available only to delinquent minors committed to placements involving physical confinement. (See, e.g., In re Harm R. (1979) 88 Cal.App.3d 438, 441-445.) For example, a minor who served 90 days in a secure facility like a juvenile hall as part of his probation, and who subsequently had his probation revoked and was committed to another secure facility, would at that point be entitled to 90 days' credit against his maximum confinement time, but he would not be entitled to credits for any time spent in a nonsecure placement. T.K.'s argument appears to be that if custody credits are not available for a nonsecure placement, it is illogical or at least unnecessary to state a maximum confinement time when committing a juvenile probationer to that placement, since his time in the nonsecure placement would not count against the maximum confinement time if he eventually ended up in a secure facility.
We need not comment on whether the inclusion of a maximum confinement time is logical or necessary under circumstances like these. The statute requires it whenever the juvenile court removes a minor from the physical custody of his or her parent or guardian as a result of an order of wardship under Welfare and Institutions Code section 602. The purpose of the statute could be to impress upon the minor the gravity of the offense, or it could be intended for the convenience of the juvenile court if, at a subsequent stage of the case, the maximum confinement time should come into play. But, regardless of the purpose, T.K. has not cited any authority that would support our refusal to apply the statute as written.
DISPOSITION
The judgment is affirmed.