People v. D.G.

Concurring. — I concur in the result because there is nothing in the record to explain why the juvenile court judge imposed a 150-foot stay-away distance from school campuses. If the record in some way had indicated why the judge imposed the condition, the result of this review would have been different.

In 2009, 17-year-old D.G., a ward of the court with many prior referrals to the probation department, was under supervised probation for sale of marijuana in December 2008. He had been in the company of a probationer and a parolee at the time of his arrest for the marijuana sale. On July 29, 2009, he and his mother agreed to terms and conditions of probation that included that he not be on the campus or grounds of any school unless enrolled, accompanied by a parent or guardian or responsible adult, or authorized by the prior permission of school authorities. Juvenile Court Judge Dennis W. Hayashi imposed the terms of probation.

While on probation, he earned an eighth referral to the Alameda County Probation Department for a daytime burglary in August of 2009. Defendant breached a security gate, pried off a deadbolt, and kicked open the back door. Again, Judge Hayashi presided over the proceeding. Defendant’s mother reported that he hangs out with friends that she disapproves of and doesn’t trust to make the right decisions. To restrict defendant and allow him to stay at home with his mother who has substance abuse problems, D.G. was ordered to attend school regularly and not leave his school campus during school hours. He had a history of irregular attendance at a special school. He and his mother signed a probation condition form that ordered him to be home by 10:00 p.m. every day, not to be away overnight, not to leave Alameda County without prior permission, and again not to be on the campus or grounds of any school unless enrolled, accompanied by a parent or guardian, or authorized by prior permission. However, the court included the *58condition that defendant was not to frequent any campus or be within 150 feet of any campus other than the school in which he is currently enrolled. Defendant’s counsel objected to the condition.

A condition of probation is not 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. (In re R.V. (2009) 171 Cal.App.4th 239, 246 [89 Cal.Rptr.3d 702].) All three factors must be present to invalidate a condition of probation. Juvenile conditions may be broader than those pertaining to adult offenders because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed. (Id. at p. 246.) A juvenile court can impose any reasonable condition that it determines 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).)

The court has the power to restrict defendant’s activities, especially with his record of absence from school, the nature of his crimes, and a mother who needs support in providing parental discipline and guidance for a defendant with escalating criminal behavior. Defendant is restricted to Alameda County with a strict curfew and an order not to leave his own school campus. The additional requirement to stay away from unauthorized campuses supplements the other restrictions. The 150-foot order, if it were justified by the record, might provide a reasonable tool to the court to encourage good behavior and protect the school community from unwanted outsiders where learning unimpeded by outside influences is the goal. But there is nothing in the record to explain why the distance of 150 feet was imposed. The order on its face prohibits potentially lawful conduct at the same time that it tries to address unlawful conduct.

Defendant must obey all laws including those that deal directly with schools troubled by outsiders. Penal Code section 627 describes the problems confronting schools like those in Alameda County. The Legislature made specific findings in Penal Code section 627 that a disproportionate share of crimes are committed on school grounds by persons who are not students at the school and who are not authorized to be on school grounds. To promote the safety and security of teachers and students, and to safeguard school property, the Legislature restricted access and imposed penal consequences for unauthorized persons. Persons without lawful business at a school while present on the street, sidewalk, or adjacent public way and whose presence interferes with the conduct of school activities or disrupts the pupils are guilty of a crime under Penal Code section 626.8. Outsiders who have legitimate business with a school must register with the principal or designee or be *59subject to criminal sanctions (Pen. Code, § 627.2). Loitering about any school can be a crime under Penal Code section 653b. Defendant must conform his conduct to these statutes.

I note, too, the court used the approved Judicial Council Forms, form JV-624, that includes a printed condition of probation that defendant not be on the campus or grounds of any school unless enrolled, accompanied by a parent or guardian or responsible adult, or authorized by prior permission of school authorities. The condition appears on the form in recognition of the recurring problem of unenrolled juveniles potentially creating problems by their presence near schools. But the form does not suggest a distance requirement. Any distance requirement needs justification from the record.

An Alameda County Juvenile Court judge deals with the daily challenges, problems, and practicalities that confront the juvenile probation department, schools and the Alameda County community and is in the best position to tailor probation requirements to fit the needs of the defendant and the community. This court is not blind to the many problems confronting the Alameda County school system. I would support the 150-foot requirement where the record adequately explained why it was imposed.