Filed 5/29/15 In re O.G. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re O. G., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A142716
v.
O. G., (Alameda County
Super. Ct. No. SJ12020038)
Defendant and Appellant.
In this delinquency case, we are asked to determine if certain conditions dealing
with gang affiliation placed on appellant are appropriate. The Attorney General has
agreed the probation terms need to be modified to include a scienter requirement. The
appellant also maintains he should have no “gang” conditions because the evidence fails
to establish his association with such a group. We conclude the juvenile court exercised
its discretion properly in this delinquency matter and will not reverse the conditions
themselves. We do concur the conditions need modification.
STATEMENT OF THE CASE
On December 5, 2012, the District Attorney of Alameda County filed a wardship
petition pursuant to Welfare and Institutions Code section 602,1 alleging appellant,
1
Any unspecified code sections referenced in the opinion refer to the Welfare and
Institutions Code.
age 15, committed hit and run driving (count one, a violation of Veh. Code, § 20002,
subd. (a)) and driving without a valid California driver’s license (count two, a violation of
Veh. Code, § 12500, subd. (a).)
The appellant admitted count one. The district attorney dismissed count two. The
juvenile court found appellant a ward of the court and placed him on formal probation on
January 17, 2013. On October 3, 2013, appellant tested positive for cocaine and the
juvenile court modified his probation to include electronic monitoring.
On January 28, 2014, the juvenile probation department filed a section 777
petition alleging appellant had been suspended from high school after giving one of his
teachers a brownie laced with marijuana. On January 30, 2014, the juvenile court
continued O.G. as a ward. It dismissed the most recent petition but reinstated the
electronic monitoring and imposed additional conditions. On March 18, 2014, the court
again vacated the electronic monitoring.
A supplemental petition was filed on June 16, 2014, alleging a violation of
probation because appellant had stopped attending school, failed to contact his probation
officer, and again tested positive for cocaine use.
On July 24, 2014, the court held a disposition hearing. The court continued
appellant as a ward of the court. It reinstated probation with new terms, including
electronic monitoring and several gang restrictions. These included: (1) “Do not be a
member of or associate with any person you know, or reasonably should know, to be a
member of, or involved in, activities of a criminal street gang”; (2) “You are not to wear
or display items or emblems reasonably known to be associated with or symbolic of gang
membership”; (3) “You are not to acquire any tattoos or gang related piercings”; and
(4) “You shall have any existing tattoos or piercings photographed as recommended by
the probation officer.”
Appellant filed a timely notice of appeal on August 11, 2014.
2
STATEMENT OF FACTS
A. Underlying Offense
On September 2, 2012, O.G. obtained his mother’s automobile without her
consent and crashed it into two parked vehicles. He then ran from the scene of the
collision. Fortunately, a witness photographed appellant before he left the scene.
B. Subsequent Conduct
While counsel for appellant asked for informal probation, the juvenile probation
report recommended against such status. One of the concerns of the department was
appellant had been “jumped” by members of the Norteño gang. Appellant was beaten.
He became afraid of leaving his home as a result of the assault.
The minor denied having a substance abuse problem. He conceded he smoked
marijuana. His mother also denied he used drugs or was associated with any gangs.
Appellant admitted being assaulted by Norteños in the recent past. The probation report
also stated the minor was disciplined in March 2012 at Castlemont High School after
engaging in a fight with another student.
On January 17, 2013, appellant accepted the probation conditions, none of which
included any gang restrictions.
In July 23, 2014, a supplemental probation report indicated appellant had stopped
attending school due to his concerns about gang problems. The report states appellant
maintained he did not belong to any gang but that he and another student had an
altercation due to the student’s belief O.G. was gang affiliated. Also, in the report,
appellant denied the use of drugs. However, he had recently tested positive for cocaine.
Additionally, he admitted he has used alcohol and marijuana. The report concluded
appellant was designated as a high risk for reoffending in the coming year.
The July report recommended continuation of existing conditions of probation,
and the addition of new gang association conditions. The transcript of the July 24
hearing indicates the juvenile court judge believed gang restrictions were already in
3
place. However, gang conditions had not been imposed. The sentencing court indicated
a concern based on appellant’s school attendance difficulties and the fight with another
student over suspected gang association. At the hearing on July 24, the court stated it
would impose gang conditions. Defense counsel objected, stating: “I would object, for
the record, to imposing the gang conditions at this time. I understand what the probation
officer is saying is, obviously, they don’t want [O.G] to become involved in gangs. But
what [appellant is] saying is, he’s not in a gang. People believe that [he is] a gang
member, but he indicates he is not in a gang. I don’t think there is any independent
evidence he is. So under those circumstances, I don’t think the gang condition are
appropriate.”
The juvenile court overruled the objection. “All right. . . . Do not be a member of
or associate with any person you know, or reasonably should know, to be a member of, or
involved in, activities of a criminal street gang. You are not to wear or display items or
emblems reasonably known to be associated with or symbolic of gang membership. You
are not to acquire any tattoos or gang related piercings. You shall have any existing
tattoos or piercings photographed as recommended by the probation officer.”
ANALYSIS
As indicated, both sides agree the above-quoted gang probation conditions should
be modified if we adopt them as proper conditions in this case. Therefore, we first focus
on the validity of these conditions in the probationary supervision of appellant. Under
section 730, subdivision (b), the juvenile court can impose and mandate “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).)
Assessing similar terms in Penal Code section 1203, our Supreme Court noted that “ ‘[a]
condition of probation 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
4
criminality.” ’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379; People v. Lent (1975)
15 Cal.3d 481, 486.) At the very least, the focus of a gang condition in a juvenile
delinquency case is to prevent conduct which could lead to future criminality—the third
condition in Olguin and Lent.
Here, the minor had a serious truancy profile, refraining from school attendance
due to his gang concerns. He was also assaulted by Norteños members on a prior
instance. Both the experienced juvenile court judge and appellant’s supervising
probation officer believed, with the minor facing a new probation modification hearing,
that conditions on gang association were needed for the “reformation and rehabilitation of
the ward.”
Probation conditions in the juvenile delinquency setting are evaluated by appellate
courts with deference to the considerations that inform the juvenile court judge’s
decision. Conditions of probation for minors may be broader than those applicable to
adult probationers. This is rooted in the conclusion juveniles are considered more in need
of guidance and supervision than are adults, and because a minor’s constitutional rights
are more circumscribed. (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1330
(Spencer S.); In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) Because of these
principles, we review any probation conditions in the delinquency setting for an abuse of
discretion. (In re Juan G. (2003) 112 Cal.App.4th 1, 7.)
In Spencer S., supra, 176 Cal.App.4th 1315, the minor was at a party where
several youths got into a fight with an adult gang member. It was a melee and the minor
was seen hitting someone in the face. The minor had no prior offenses as a juvenile, but
the juvenile court and probation department believed he needed structure and probation
conditions limiting his associations. The court therefore imposed the condition the minor
not associate with persons he knew were on probation. (Id. at p. 1321.) Challenged on
appeal, the appellate court upheld the condition as not being an abuse of juvenile court
discretion. The restriction on the minor’s association with probationers “is sufficiently
5
related to the goals of (1) promoting his rehabilitation and reformation, and (2) protecting
the public. . . . The condition is especially valid in light of the state’s authority over
juvenile wards and a ward’s concomitant circumscribed constitutional rights.”
(Spencer S., at p. 1331.)
In our case, the appellant had at least two incidents involving gang issues. The
incidents concerned the probation department and the juvenile court. Also, the court was
not obligated to engage in a detailed hearing of the evidentiary conflicts before modifying
appellant’s probation terms. Additionally, appellant had become seriously truant at
school and expelled because he brazenly offered his teacher a marijuana-laced brownie.
His drug usage was verified by testing, even though his mother was in denial. Finally,
appellant’s behavior with prior conditions was not improving; rather, it was regressing.
We find the juvenile court acted appropriately in imposing the stated gang conditions.
(In re Byron B. (2004) 119 Cal.App.4th 1013, 1016–1018.)
We, as does the Attorney General, agree that gang conditions one, two and three
deserve modification to avoid constitutional issues of vagueness. Even though not
challenged at the juvenile court, the constitutionality of probation conditions may be
reviewed on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 888.)
Condition number one states: “Do not be a member of or associate with any
person you know, or reasonably should know, to be a member of, or involved in,
activities of a criminal street gang.” A criminal street gang should mean a group defined
by Penal Code section 186.22, subdivision (f). While this reference need not be included
expressly for each condition, it needs to be stated to permit proper understanding if
review of the violation of this condition is presented. (See In re Victor L. (2010)
182 Cal.App.4th 902, 914; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1145.
Condition number two states: “You are not to wear or display items or emblems
reasonably known to be associated with or symbolic of gang membership.” We adopt the
proposed modification suggested by the Attorney General and modify the condition to
6
read: “You are not to wear or display items or emblems reasonably known by you to be,
or that the Probation Officer informs you to be associated with or symbolic of gang
membership.” (See Shaun R., supra, 188 Cal.App.4th at p. 1145.)
Condition number three states: “You are not to acquire any tattoos or gang related
piercings.” We adopt the modification that is similar to the change to number two. The
new condition as modified should state: “You are not to acquire any gang related tattoos
or piercings that are reasonably known to you to be, or that the Probation Officer informs
you to be, related to gangs.”
CONCLUSION
We have modified the first three conditions to gang association imposed by the
juvenile court on July 24, 2014, as indicated. With this modification of probation
understood, the judgment is affirmed.
_________________________
DONDERO, J.
We concur:
_________________________
HUMES, P.J.
_________________________
MARGULIES, J.
7