Filed 9/12/16 In re A.S. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 In re A.S., a Person Coming Under the
 Juvenile Court Law.

 THE PEOPLE,
                                                                         E064274
          Plaintiff and Respondent,
                                                                         (Super.Ct.No. SWJ1400871)
 v.
                                                                         OPINION
 A.S.,

          Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. F. Paul Dickerson, III,

Judge. Affirmed with directions.

         John L. Dodd, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Junichi P.

Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.



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       The juvenile court declared defendant A.S. a ward of the court and placed him on

probation after the court found true the allegation that A.S. committed rape. A.S. argues

the court abused its discretion when it made him subject to terms of probation that:

prohibit him from consuming or possessing alcohol, illegal drugs and tobacco; prohibit

him from associating with illegal drug users; and require him to submit to chemical

testing for drugs and alcohol. We affirm with directions to strike the condition

prohibiting tobacco use, based on recent Legislative changes.

                                 FACTS AND PROCEDURE

       A.S. and the victim knew each other from high school. In April 2014, when A.S.

was 15 years old and the victim was 16, they had an extended “make out” session that

eventually ended in intercourse. Four months later, at the beginning of the next school

year, the victim told a classmate that A.S. had raped her. The classmate reported this to

school officials, who reported it to law enforcement. On August 26, 2014, the victim

participated in two pretext phone calls with A.S. to see if he would admit to the crime.

At the end of the second phone call, which lasted 15 minutes and 32 seconds, the victim

asked A.S. “So you . . . understand the fact that you had sex with me even though I told

you I didn’t want to?” A.S. replied, “Yeah I understand that.”

       On November 10, 2014, the People filed a petition under Welfare and Institutions

Code section 602 alleging A.S. committed forcible rape. (Pen. Code, § 261, subd. (a)(2).)

The juvenile court held a contested jurisdiction hearing, at the conclusion of which it

found the allegation true. At the disposition hearing held on August 21, 2015, the court

declared A.S. a ward of the court, ordered him to serve 90 days in juvenile hall, and made


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him subject to conditions of probation upon his release to his parents. These conditions

included the following:

       “Not knowingly possess, consume, inhale, or inject any intoxicants, alcohol,

narcotics, aerosol products, or other controlled substances, poisons, illegal drugs,

including marijuana nor possess related paraphernalia, without a medical

recommendation and, even then, only after approved by the court.”

       “Not associate with anyone known to the minor to be in possession of, sells, or

uses any illegal or illegally-obtained controlled substances or related paraphernalia.”

       “Not use or possess tobacco or any tobacco products.”

       “Submit to chemical test(s) of blood, breath, or urine for alcohol/controlled

substances, as directed by the probation officer or any law enforcement officer.”

       Defense counsel objected to these conditions of probation.

       This appeal followed.

                                        DISCUSSION

       A.S. argues the court abused its discretion when it made him subject to terms of

probation that: prohibit him from consuming alcohol, illegal drugs and tobacco; prohibit

him from associating with illegal drug users; and require him to submit to chemical

testing for drugs and alcohol. A.S. contends there is no factual nexus between the

offense, his manifested propensities and the probation conditions because there is no

evidence that drugs or alcohol played any part in the offense or that A.S or his family had

any history of drug or alcohol abuse. The People agree with A.S.’s factual premise, but




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respond that the conditions are within the broad discretion afforded to juvenile courts to

rehabilitate A.S. and discourage future criminal behavior.

        General Legal Background

        The juvenile court “has wide discretion to select appropriate conditions and may

impose ‘“any reasonable condition that is ‘fitting and proper to the end that justice may

be done and the reformation and rehabilitation of the ward enhanced.’”’ [Citations.]” (In

re Sheena K. (2007) 40 Cal.4th 875, 889.) “The juvenile court’s broad discretion to

fashion appropriate conditions of probation is distinguishable from that exercised by an

adult court when sentencing an adult offender to probation. Although the goal of both

types of probation is the rehabilitation of the offender, ‘[j]uvenile probation is not, as

with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a

final order for the minor’s reformation and rehabilitation.’ [Citation.] ‘[J]uvenile

probation is not an act of leniency, but is a final order made in the minor’s best interest.’

[Citation.] [¶] In light of this difference, a condition of probation that would be

unconstitutional or otherwise improper for an adult probationer may be permissible for a

minor under the supervision of the juvenile court. [Citations.]” (In re Tyrell J. (1994) 8

Cal.4th 68, 81-82, disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128,

130.)

        Furthermore, “[t]rial courts have broad discretion to set conditions of probation in

order to ‘foster rehabilitation and to protect public safety pursuant to Penal Code section

1203.1.’ [Citations.] . . . [¶] However, the trial court’s discretion in setting the

conditions of probation is not unbounded.” (People v. Lopez (1998) 66 Cal.App.4th 615,


                                              4
624 (Lopez).) A term of probation is invalid if 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 . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486, (Lent); People

v. Olguin (2008) 45 Cal.4th 375, 379, 380.) Lent applies to juvenile court probation

orders. (In re Josh W. (1997) 55 Cal.App.4th 1, 6; In re Malik J. (2015) 240 Cal.App.4th

896, 901.)

       Alcohol and Drug Testing

       Testing minors on probation for alcohol and drugs is specifically authorized by

statute. Welfare and Institutions Code, section 729.3 provides: “If a minor is found to be

a person described in Section 601 or 602 and the court does not remove the minor from

the physical custody of his or her parent or guardian, the court, as a condition of

probation, may require the minor to submit to urine testing upon the request of a peace

officer or probation officer for the purpose of determining the presence of alcohol or

drugs.”

       In In re Kacy S. (1998) 68 Cal.App.4th 704, the appellate court concluded that

section 729.3 “ . . . commits the decision to order testing in a particular case to the

juvenile court’s discretion,” regardless of the minor’s offense and social history. (In re

Kacy S., supra, at p. 708.) In that case, the minors admitted allegations related to a fight

in which they participated, and neither had a history of drug use. The Court of Appeal

nevertheless upheld the testing condition using the test set forth in Lent, supra, 15 Cal.3d

at page 486.


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       First, the Kacy S. court concluded that “[t]he urine testing condition is designed to

detect the presence of substances whose use by minors is unlawful. [Citations.] Thus,

the testing ‘“relates to conduct which is . . . in itself criminal.”’ [Citation.]” (In re Kacy

S., supra, 68 Cal.App.4th at p. 710.) Second, the Kacy S. court pointed to the

Legislature’s uncodified findings and declarations in enacting Welfare and Institutions

Code, section 729.3 to the effect that “‘alcohol and drug abuse’ are ‘precursors of serious

criminality. . . .’ [Citation.] Thus, the testing is also ‘“reasonably related to future

criminality.”’ [Citation.] Because the testing condition relates to criminal conduct and is

reasonably related to future criminality, its imposition is within the juvenile court’s

discretion even as measured by the Lent formulation.” (In re Kacy S., supra, at p. 710.)

We agree, and so reject A.S.’s challenge to these testing conditions.

       Alcohol and Drug Use or Possession

       These conditions of probation are permissible because, as is the case with drug

testing, they relate to future criminality and to the rehabilitative goals of probation

enunciated in section 730. When it enacted section 729.3, the Legislature declared the

following: “(a) . . . [¶] (1) The problem of juvenile delinquency should be addressed at

its inception rather than after it has progressed to serious criminality. [¶] (2) The

precursors of serious criminality by juveniles include . . . alcohol and drug abuse. . . . [¶]

(3) The young offender who exhibits the symptoms of future delinquency presents the

most significant potential for rehabilitation . . . . [¶] (b) In this regard, it is the intent of

the Legislature to implement a program based on a different perspective and strategy

toward juvenile delinquency which program is designed to reach our children before they


                                                6
become habitual criminals, and requires the intervention by the juvenile justice system at

the earliest signs of drug abuse, gang affiliation, and other antisocial behavior.” (Stats.

1989, ch. 1117, § 1.) We conclude that prohibitions on possession or use of alcohol or

illegal drugs are consistent with the stated intent of the Legislature that the juvenile

justice system intervene at the earliest signs of drug abuse “or other antisocial behavior.”

(Ibid.) Thus, we uphold the juvenile court’s imposition of these probation conditions.

       Knowing Association with Drug Users

       A.S. argues that the condition prohibiting him from associating with persons

known to him to sell, possess, or use drugs is not reasonably related to the risk that he

will re-offend. We disagree. As with the conditions of probation that concern drug and

alcohol testing and use discussed above, this condition relates to future criminality and to

the rehabilitative goals of probation. The condition has the apparent purpose of

protecting A.S. from the influence of drug dealers and abusers. Further, A.S. cites to no

direct authority that requires the striking of this standard condition of probation for

juveniles. His reliance on People v. Brandao (2012) 210 Cal.App.4th 568 [striking

probation condition prohibiting defendant from associating “‘with any individuals you

know or are told by the Probation Officer to be gang members’” where defendant has no

ties to any criminal street gang] is unavailing because that case concerned an adult

probation condition and does not take into account the greater leeway given to juvenile

courts when imposing probation conditions on minors. (In re Tyrell J., supra, 8 Cal.4th

at pp. 81-82) We uphold the imposition of this probation condition.




                                              7
       Tobacco Use

       A.S. concedes that “the court probably could order the minor to not possess

tobacco while under the age of 18 years. However, once the minor turns 18 years old, he

could otherwise lawfully possess tobacco.” The People argue ripeness issues, but aside

from that do not object to modifying the condition to apply only while A.S. is under 18

years old.

       On June 9, 2016, after initial briefing was completed in this case, Senate Bill No. 7

(2016 2d Ex. Sess.) went into effect. The Legislation focuses on enforcement of the

prohibition against sales to minors and was primarily designed to raise the “minimum

legal age” of sale for tobacco products to customers from 18 years of age to 21. At the

same time, the Legislation “Deletes existing penalties applicable when a person under 18

years of age purchases, receives, or possesses certain tobacco products.” (Senate Bill

analysis, SB 7, third reading, as amended March 2, 2016.) The former Penal Code

section 308, subdivision (b) authorized up to a $75 fine and community service for

minors, under age 18, who possess or smoke tobacco. This provision was deleted in

favor of the new subdivision (b), which punishes merchants for selling tobacco to persons

under age 21.

       In supplemental briefing, the parties agree that A.S. is no longer subject to

criminal penalties for mere possession of tobacco products. In addition, Legislation

addressing the risk to youth from using tobacco products is focused on the long-term

health effects of these products, rather than the use of such products having any

connection to future criminality. (Business and Prof. Code, § 22951) Finally, tobacco


                                             8
use had no relationship to A.S.’s crime. For these reasons, we order the tobacco

prohibition stricken from the conditions of probation.

                                      DISPOSITION

       The juvenile court is directed to strike the probation term prohibiting A.S. from

using or possessing tobacco products. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                         P. J.


We concur:

McKINSTER
                          J.

SLOUGH
                          J.




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