Filed 4/24/13 In re Cynthia L. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

In re CYNTHIA L., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent,

v. CYNTHIA L., Defendant and Appellant. F064829 (Super. Ct. No. 510856)


### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Stanislaus County. Susan D. Siefkin, Judge. Suzanne M. Morris, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorn eys General, for Plaintiff and Respondent.

- ooOoo -

* Before Wiseman, Acting P.J., Poochigian, J., and Peña, J.2 In July 2011, appellant, Cynthia L., a mi nor, pled no contest to a single count of attempted first degree burglary (Pen. Code, §§ 459, 460, subd. (a), 664 ). In August 2011, the juvenile court adjudged ap pellant a ward of the court and placed her on probation,
with various terms and conditions. In April 2012, a supplemental wardship petition (Welf. & Inst. Code, § 777) was filed in which it was alleged appellant co mmitted multiple noncriminal violations of probation; appellant admitted the allegations; and the court continued appellant as a ward
of the court and continued her on probation. Her conditions of probation included several that refer to criminal street gangs that ha d not been previously imposed, including the
directive that she “not associate or communica te with any person that [she] know[s] is a gang member ....” 1 On appeal, appellant cont ends the gang association condition is unc onstitutionally
overbroad. We affirm. FACTUAL AND PROCED URAL BACKGROUND 2 The Attempted Burglary A detention report stated that accordin g to a Modesto Police Department (MPD) report, the victims of the offense told po lice the following occurred on November 2, 2010: “[Appellant] came to their front door and they thou ght she was soliciting so they did not answer the door. A short time later, [appellant’s] father Jose was attempting to break the glass on the back door to gain en try. Once Jose saw the victims in the
residence he fled.”

1 We refer to this condition of probati on as the “gang association condition.”
2 Except as otherwise indicated, all info rmation in this section is taken from the dispositional social study filed April 19, 2012.3 The Instant Probation Violations The conditions of probation imposed fo llowing appellant’s adjudication of attempted burglary included the following: Sh e was to (1) attend school, (2) be in her home between the hours of 9:00 p.m. and 6:00 a.m. unless in the company of her parents, and (3) complete 15 hours of comm unity service by March 27, 2012. “According to school re cords from the Peterson Alternative Center Education (PACE) dated April 5, 2012, [appellant] was dropped from enrollment on March 22, 2012, due to excessi ve absences.” On March 12, 2012, a probation officer ma de contact with appellant’s mother at appellant’s last known address. Appellant’s mother told th e officer she “had not seen [appellant] ‘in a while.’” Appellant was arrest ed at another location on April 4, 2012.
She told the officer she had be en staying at that location w ith a friend for approximately
one month. On March 13, 2012, the “coordinator of community servic e” informed the probation officer that numerous attempts to set up an appointment with appellant “to sign [her] up for her community service hours” had been unsuccessful, and appellant had “not submitted proof of completion of community service.” Additional Background At the time of the disposition hearing in April 2012, appellant, then 17 years old, was approximately eight months pregnant. Th e “presumed biological father” of the thenunborn child is appellant’s boyfriend, K.S. (K.). With regard to “peer influence and asso ciations,” appellant told the probation officer “she only has one friend and would just ‘hang out’ with [K.],” and she “is aware [K.] is not a good influence on her as he is on probation and is currently incarcerated in4 juvenile hall.” 3 Appellant “denied ever associating with a gang.” She told the probation officer, “‘My mom’s side of th e family are Northerners and my dad’s side of the family
are Southerners.’” She also stated that bot h her father and her brother are “involved with Northern and Southern gangs.” An MPD repor t stated that appellant’s father, during the booking process following his arrest for the attempted burgl ary discussed above, stated he was a “Southerner,” and th at he was “classified as su ch and placed w ith people of similar gang affiliation.” Appellant’s mother told the probation o fficer the following: Appellant “has a lot of friends” who are “Northerners.” Appellant “is not a member ... but she does hang out with them.” Appellant “‘has Northerner so ngs on [her mother’s] phone.’” Appellant’s
mother “‘didn’t allow her to wear red ove r here.’” Appellant “was doing good” on probation; she “wasn’t out there getting into trouble.” However, “once [K.] got out, it was all about [K.]” The Disposition Hearing 4 The court noted that gang co nditions had not previously been imposed, at which point the following exchange occurred:
“THE COURT: Is there a basis fo r ordering [gang conditions] now? “[Appellant]: My boyfriend. “MS. VARNER [probation officer ]: By association. So her boyfriend, the father
of the child.” Appellant confirmed, “... my boyf riend is a gang member.” Defense counsel objected to the gang conditions.

3 The probation officer noted that K. had been adjudicated a ward of the court, and that on April 17, 2012, he was ordered to serve 270 days in juvenile hall.
4 Information in this section is take n from the transcript of the April 2012 disposition hearing.5 DISCUSSION Appellant contends the gang associa tion condition is uncons titutionally overbroad because, she asserts, it (1) impinges on her co nstitutional rights to freedom of association and assembly, (2) is not “reasonably related to present or future delinquent conduct,” and (3) is not “narrowly tailored to the reason fo r the restriction or appellant’s individual needs.” (Boldface omitted.) Legal Background
Welfare and Institutions Code section 730 provides, in relevant part: “The [juvenile] court may impose and require any and all reasonabl e conditions [of probation] that it may determine fitting and proper to th e end that justice may be done and the
reformation and rehabilitation of the ward enhanced.” “[ J]uvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under [ People v .] Lent [(1975)] 15 Cal.3d 481: ‘A conditi on 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 reasonabl y related to future crimina lity ....” [Citations.]’” ( In re
D.G. (2010) 187 Cal.App.4th 47, 52-53.) Unde r this test, “All three requirements must be met before the condition is invalidated.” ( In re Frank V . (1991) 233 Cal.App.3d 1232, 1242.) “The juvenile court has wide discretion to select appropriate conditions ....” ( In re Sheena K. (2007) 40 Cal.4th 875, 889 ( Sheena K. ).) “Although the goal of both [juvenile and adult] probatio n is the rehabilitation of the offender , ‘[j]uvenile probation is not, as with an adult, an act of leni ency in lieu of statutory punishment; it is an ingredient of a
final order for the minor’s reformation and reha bilitation.’ [Citation.] ... [¶] In light of this difference, a condition of probation th at would be unconstitu tional or otherwise improper for an adult probationer may be pe rmissible for a minor under the supervision6 of the juvenile court.” ( In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 139.) However, a court’s discretion is not boundless. “‘“‘Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn....’”’” ( In re Frank V ., supra , 233 Cal.App.3d at p. 1242.) “A probation condition that imposes limitations on a person’ s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” ( Sheena K. , supra , 40 Cal.4th at p. 890.) “A restriction is unconstitutionally overbroad ... if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably rela ted to the compelling state interest in
reformation and rehabilitation.’ [Citations.] 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.” ( In re E.O. (2010) 188 Cal.App.4th 1149, 1153 ( E.O .).) Analysis As indicated above, appellant’s constitu tional overbreadth ch allenge to the gang association condition is premised on three clai ms, viz., the claims that the condition (1) impinges on constitutional rights, (2) is not reasonably related to present or future delinquent conduct, and (3) is not sufficiently narrowly drawn. The first of these is correct. As the People effectively concede, the gang association condition impinges on appellant’s First Amendment rights of associ ation and assembly. However, appellant’s remaining two points, which we addr ess in turn, are not well taken. Relation of Gang Associ ation Condition to Presen t and Future Criminality Appellant contends the gang associati on condition “is not reasonably related to present or future delinquent conduct” becau se there was no indication that either the7 underlying attempted burglary or appellant’s subsequent misconduct were “gang related or influenced” or “the pr oduct of gang associations.” (Boldface omitted.) We assume without deciding that neith er the instant offense nor appellant’s probation violations were gang related, and that therefore the gang association condition is not reasonably related to present delinquent conduct, but as we explain below, we conclude the challenged conditi on is reasonably related to future criminality. On this point, we find instructive In re Laylah K . (1991) 229 Cal.App.3d 1496 ( Laylah K .). In that case, two minors were adjudicated of various offenses based on an incident in which the minors, who had friends who we re members of the Cr ips gang, accosted a woman on the street, demande d to know why she was we aring an article of red clothing—red being a color asso ciated with a rival gang—and challenged her to fight. The minors argued that they were not gang members and therefore, the “‘Gang Terms and Conditions of Probation’” ( Laylah K ., supra , 229 Cal.App.3d at p. 1499) imposed there, which includ ed a condition prohib iting the minors from “associat[ing] with known members of the Crips gang” ( ibid. ), “were not reasonably related to their crimes or their rehabilitation” ( id . at p. 1500) and therefore were invalid under People v

. Lent , supra , 15 Cal.3d 481 ( Lent ). 5 The court rejected the minors’ co ntentions. The court concluded that

5 We note that whether a prob ation condition is invalid under Lent , and whether a condition is unconstitutionally ove rbroad, are separate questions. Appellant, however, frames her constitutional overbreadth argument in terms of the Lent standard for determining the validity of the probation conditi on. That is, she frame s the issue in terms of whether the challenged condition is reasonably related to future criminality . (See Lent , supra , 15 Cal.3d at p. 486.) The constitutional test fo r overbreadth, on the other hand, as phrased somewhat differently in E.O. , supra , 188 Cal.App.4th at p. 1153, requires consideration of whether the probation conditi on at issue is, in add ition to being narrowly tailored, “‘reasonably related to the compelling state interest in reformation and rehabilitation .’” (Italics added.) In our view, in order for a probation condition to be reasonably related to a minor’s reformation and rehabilitation, it must also be reasonably related to present or future criminality. Therefore, Laylah K.’s response to the Lent -based argument raised there is inst ructive on the constitutional argument we address here.8 the minors, “[i]f they were not already entr enched in the gang, th ey were well on their way[,]” based, in part, on the following: Both minors “admitted they had friends who were members of the Crips gang[,]” including another minor who was with the minors in committing the adjudicated offenses; a family member opined that the minors were “‘gang associates’”; and the probation offi cer concluded that the minors, in committing the adjudicated offenses, “partic ipated in an apparent defens e of what they perceived to be a symbolic challenge to Crips’ territorialism.” ( Laylah K. , at pp. 1500-1501.)
The court stated further: “The minors’ co ntention that mere a ssociation with gang members does not justify terms aimed at known gang members is extr emely shortsighted. Association with gang me mbers is the first step to involvement in ga ng activity.... [¶] This court has previously held that prob ation conditions designe d to curb dangerous associations with gangs were not unreasonable. ( In re Michael D. (1989) 214 Cal.App.3d 1610, 1617.) While Michael D. had admitted gang affiliations, we see no logical or beneficial reason to require a court to wait until a minor has become entrenched with a gang, only then to appl y mere prophylactic remedies. [¶] ... [¶] ... Evidence of current gang membership is not a prerequisite to imposition of conditions designed to steer minors from [the] destructive path [of gang membership].” ( Laylah K ., supra , 229 Cal.App.3d at pp. 1501-1502.) We recognize that the minors in Laylah K . exhibited a greater involvement in and identification with a gang than that shown by appellant. However, by the same token, the record here indicates appellant’s relationshi p to a criminal stre et gang went beyond simply associating with persons who happened to be gang members. The record contains evidence that appellant had placed “gang songs, ” i.e., presumably, so ngs having a special significance to gang members, on her mother’s telephone. Such an act indicates some interest, if not actual involvem ent, in gang activity. Based on this act, considered in conjunction with the evidence that appellant had, and associated with, gang member9 friends, the court reasonably could conclude th at appellant, though not in the same degree of imminent danger of “succu mbing to gang pressures” ( Laylah K. , supra , 229 Cal.App.3d at p. 1501) as the minors in Laylah K. , was, at least slightly, moving in that
direction. As in Laylah K. , the court was not required to wait further before imposing conditions designed to “steer [her] from [the] destructive path [of gang membership].” ( Id. at p. 1502.) On this record, the gang association condition was reasonably related to the prevention of future criminal behavior, a nd therefore also reason ably related to “‘the compelling state intere st in reformation and rehabilitation.’” ( E.O. , supra , 188 Cal.App.4th at p. 1153.)
Overbreadth Appellant contends the gang associati on condition was “not narrowly tailored to address [her] unique needs” because it would pr event contact with her father, her brother, the father of her soon-to-be-born child, at a time when, given that she was soon to give birth, contact with such persons is particularly important to appellant. The factors cited by appellant support wh at is not disputed: The gang condition impinges on important constitutio nal rights. However, these factors do not establish that the challenged conditi on imposes limitations on constituti onal rights that are not “closely tailor[ed] ... to the purpose of the condition ....” ( Sheena K. , supra , 40 Cal.4th at p. 890.) Here, the purpose of the condition is to fost er appellant’s rehab ilitation and to protect public safety by preventing appellant, who, as demonstrated above, has associated with gang member friends and has shown an inte rest in gang culture, from going any further down the path to gang invo lvement. A condition dir ected at preventing gang involvement that accomplishes th is aim by prohibiting associa tion with gang members is carefully tailored to its purpos e. It is not overbroad. DISPOSITION The judgment is affirmed.