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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                                             F064829

         Plaintiff and Respondent,                                           (Super. Ct. No. 510856)

                   v.                                                                OPINION
CYNTHIA L.,

         Defendant and Appellant.


                                                   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, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.

                                                        -ooOoo-

*        Before Wiseman, Acting P.J., Poochigian, J., and Peña, J.
       In July 2011, appellant, Cynthia L., a minor, 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 appellant 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 committed 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 had not been previously imposed, including the
directive that she “not associate or communicate with any person that [she] know[s] is a
gang member ....”1
       On appeal, appellant contends the gang association condition is unconstitutionally
overbroad. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND2
The Attempted Burglary
       A detention report stated that according to a Modesto Police Department (MPD)
report, the victims of the offense told police the following occurred on November 2,
2010: “[Appellant] came to their front door and they thought 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 entry. Once Jose saw the victims in the
residence he fled.”




1      We refer to this condition of probation as the “gang association condition.”
2      Except as otherwise indicated, all information in this section is taken from the
dispositional social study filed April 19, 2012.


                                             2
The Instant Probation Violations
       The conditions of probation imposed following appellant’s adjudication of
attempted burglary included the following: She 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 community service by March 27, 2012.
       “According to school records from the Peterson Alternative Center Education
(PACE) dated April 5, 2012, [appellant] was dropped from enrollment on March 22,
2012, due to excessive absences.”
       On March 12, 2012, a probation officer made contact with appellant’s mother at
appellant’s last known address. Appellant’s mother told the officer she “had not seen
[appellant] ‘in a while.’” Appellant was arrested at another location on April 4, 2012.
She told the officer she had been staying at that location with a friend for approximately
one month.
       On March 13, 2012, the “coordinator of community service” 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. The “presumed biological father” of the then-
unborn child is appellant’s boyfriend, K.S. (K.).
       With regard to “peer influence and associations,” 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 in




                                             3
juvenile hall.”3 Appellant “denied ever associating with a gang.” She told the probation
officer, “‘My mom’s side of the family are Northerners and my dad’s side of the family
are Southerners.’” She also stated that both her father and her brother are “involved with
Northern and Southern gangs.” An MPD report stated that appellant’s father, during the
booking process following his arrest for the attempted burglary discussed above, stated
he was a “Southerner,” and that he was “classified as such and placed with people of
similar gang affiliation.”
       Appellant’s mother told the probation officer 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 songs on [her mother’s] phone.’” Appellant’s
mother “‘didn’t allow her to wear red over 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 Hearing4
       The court noted that gang conditions had not previously been imposed, at which
point the following exchange occurred:
       “THE COURT: Is there a basis for ordering [gang conditions] now?
       “[Appellant]: My boyfriend.
       “MS. VARNER [probation officer]: By association. So her boyfriend, the father
of the child.”
       Appellant confirmed, “... my boyfriend 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 taken from the transcript of the April 2012
disposition hearing.


                                             4
                                        DISCUSSION
         Appellant contends the gang association condition is unconstitutionally overbroad
because, she asserts, it (1) impinges on her constitutional 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 for 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 reasonable conditions [of probation]
that it may determine fitting and proper to the 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 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 criminality ....” [Citations.]’” (In re
D.G. (2010) 187 Cal.App.4th 47, 52-53.) Under 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] 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.] ... [¶] 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

                                               5
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 related 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 constitutional overbreadth challenge to the gang
association condition is premised on three claims, 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 association and assembly. However, appellant’s
remaining two points, which we address in turn, are not well taken.
Relation of Gang Association Condition to Present and Future Criminality
       Appellant contends the gang association condition “is not reasonably related to
present or future delinquent conduct” because there was no indication that either the

                                               6
underlying attempted burglary or appellant’s subsequent misconduct were “gang related
or influenced” or “the product of gang associations.” (Boldface omitted.)
       We assume without deciding that neither 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 condition 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 were members of the Crips gang, accosted a
woman on the street, demanded to know why she was wearing an article of red
clothing—red being a color associated 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 included a condition prohibiting 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’ contentions. The court concluded that

5      We note that whether a probation condition is invalid under Lent, and whether a
condition is unconstitutionally overbroad, are separate questions. Appellant, however,
frames her constitutional overbreadth argument in terms of the Lent standard for
determining the validity of the probation condition. That is, she frames 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 for 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 condition at issue is, in addition 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 instructive on the constitutional argument we address here.


                                             7
the minors, “[i]f they were not already entrenched in the gang, they 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 officer concluded that the minors, in committing
the adjudicated offenses, “participated in an apparent defense of what they perceived to
be a symbolic challenge to Crips’ territorialism.” (Laylah K., at pp. 1500-1501.)
       The court stated further: “The minors’ contention that mere association with gang
members does not justify terms aimed at known gang members is extremely shortsighted.
Association with gang members is the first step to involvement in gang activity.... [¶]
This court has previously held that probation conditions designed 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 apply 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 relationship to a criminal street 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, songs having a special
significance to gang members, on her mother’s telephone. Such an act indicates some
interest, if not actual involvement, in gang activity. Based on this act, considered in
conjunction with the evidence that appellant had, and associated with, gang member

                                             8
friends, the court reasonably could conclude that appellant, though not in the same degree
of imminent danger of “succumbing 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, and therefore also reasonably related to “‘the
compelling state interest in reformation and rehabilitation.’” (E.O., supra, 188
Cal.App.4th at p. 1153.)
Overbreadth
       Appellant contends the gang association condition was “not narrowly tailored to
address [her] unique needs” because it would prevent 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 what is not disputed: The gang condition
impinges on important constitutional rights. However, these factors do not establish that
the challenged condition imposes limitations on constitutional 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 foster appellant’s rehabilitation and to protect
public safety by preventing appellant, who, as demonstrated above, has associated with
gang member friends and has shown an interest in gang culture, from going any further
down the path to gang involvement. A condition directed at preventing gang
involvement that accomplishes this aim by prohibiting association with gang members is
carefully tailored to its purpose. It is not overbroad.
                                      DISPOSITION
       The judgment is affirmed.

                                              9
