Opinion
A148866
05-02-2017
In re KELVIN H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KELVIN H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J42800)
Appellant Kelvin H. was placed on probation after being declared a ward of the juvenile court (Welf. & Inst. Code, § 602, subd. (b)), and now challenges the imposition of probation conditions forbidding him from engaging in gang-related activities. Kelvin argues both that the gang terms are unreasonable under People v. Lent (1975) 15 Cal.3d 481, and are unconstitutionally vague and overbroad. We reject these arguments and affirm the judgment.
BACKGROUND
On April 29, 2015, Kelvin, then 14, was adjudged a ward of the juvenile court, and placed on probation in the custody of his father, after admitting to having committed misdemeanor vehicle theft (Veh. Code, § 10851, subd. (a); Pen. Code, § 17, subd. (b)) on December 31, 2014. Two other counts arising from the incident, driving without a license (Veh. Code, § 12500, subd. (a)) and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)), were dismissed. The probation report at the time noted that Kelvin denied any gang affiliation or association, however his father was reportedly "not sure" whether Kelvin was affiliated with a gang, and noted Kelvin had recently been associating with "Hispanics," some of whom his father was concerned could possibly be gang-affiliated. No gang terms were recommended or imposed at that juncture.
Less than two months later, Kelvin faced a second juvenile wardship petition following his arrest on June 7, 2015, when police encountered him drinking alcohol in public and Kelvin then identified himself to police using a false name. A count alleging he had given police false information (Pen. Code, § 148.9, subd. (a)) was subsequently dismissed when Kelvin admitted to violating his probation by failing to obey all laws. Wardship continued, and he remained on probation.
Approximately five months later, in November 2015, Kelvin was back in juvenile court facing a petition filed by the probation department alleging he had violated the terms of his probation again, multiple ways. He admitted one violation, that he had used illegal drugs, and the other alleged violations were dismissed. He was again placed on probation.
Six months later, on May 19, 2016, Kelvin was ordered detained at Juvenile Hall. He faced a second probation violation petition and yet a third juvenile wardship petition, this time alleging a felony count of illegally possessing a concealable firearm (Pen. Code, § 29610). The firearm charge arose from Kelvin's arrest on May 17, 2016, after police found a loaded firearm beneath the passenger seat of a car Kelvin had been riding in. The driver's son was arrested too, after brandishing the gun at a motorist who had been tailgating them. Subsequently, Kelvin admitted violating the terms of his probation by testing positive for marijuana, and the two other alleged probation violations were dismissed along with the felony weapons count. The contested disposition hearing was set for June 30, 2016.
Approximately three weeks before the disposition hearing, on June 3, 2016, Kelvin was involved in a gang-related altercation with another youth at Juvenile Hall. According to the probation report, staff of the facility reported that Kelvin and the other youth began exchanging words and gang signs at each other while they were in the recreational area of their housing pod, and as the other youth walked past him, Kelvin jumped up and the two began fighting.
Kelvin met with his probation officer four days later, on June 7, and admitted he was a member of the Sureño gang and said he had been "jumped in" a few years previously. Kelvin told his probation officer he had fought the other youth because he was a member of the rival Norteño gang, and that as a Sureño member Kelvin had to " 'smash on any Norteno's in his face.' " The probation report noted, too, that Kelvin had written "X3" in blue ink on his shoe, a notation "closely associated" with the Sureño gang. Although Kelvin's probation officer never determined whether the other youth was in fact a documented Norteño gang member, he testified that the youth's "paperwork" on file at Juvenile Hall indicated he was a Norteño. He also testified that Kelvin told him during this interview that Kelvin's issues with the other youth had been "squashed" but that if any other Norteño came up, he would automatically go after them.
At the hearing, Kelvin's probation officer described "jumping in" as a ritual for receiving the privileges of a "full-fledged" gang member by getting violently assaulted by other gang members.
Kelvin's probation officer interviewed Kelvin again a week later, on June 14, and Kelvin tried to "recant" some of his earlier statements. This time, according to the probation report, he told his probation officer he wasn't a member of the Sureño gang but an associate, and that he was just "messing around" when he wrote "X3" on his shoe. The probation report noted that, "[h]e did, however, continue to admit that his fight . . . was gang related." His probation officer testified Kelvin denied in this interview that he'd ever been jumped into the gang.
In addition to addressing Kelvin's gang ties, the probation report detailed Kelvin's lengthy struggle with substance abuse, failed drug tests, poor academic performance, and other difficulties. Kelvin's risk level had climbed since his last risk assessment, to high. The probation report opined that "there are significant headwinds in this case, which could sabotage the minor's goal of successfully terminating his Wardship in the community and the Justice system's goal of reducing the minor's threat to the safety of the community and making effective positive lasting changes in the minor." The probation department "guarded[ly]" recommended continued community-based treatment, including imposing the court's standard gang-related terms of probation.
The day before the disposition hearing, the probation officer met with Kelvin a third time after learning Kelvin's attorney planned to object to proposed gang terms. The probation officer testified that Kelvin told him in that third interview, again, that he wasn't a member of the Sureño gang but an associate. In addition, the probation officer testified Kelvin "sought some favor from me" during that final interview, apparently because Kelvin had been making an effort not to react to or engage with any of the Norteño gang members who had been placed in his pod at Juvenile Hall.
The disposition hearing took place on June 30, 2016, at which the only contested issue was the propriety of imposing gang terms. Kelvin's probation officer was the sole witness. In addition to testifying about his various interviews with Kelvin, he testified that, in his opinion based on 25 years of experience as a probation officer, the X3 graffiti on Kelvin's shoe was consistent with Sureño tagging. In addition, he testified that Kelvin had been suspended from school the previous year for allegedly tagging a textbook with notations associated with the Sureño gang ("Sur X3" and "1300"), and that Kelvin had said he was friends with a number of the members of the Crowley Lane subset of the Sureño gang. He acknowledged Kelvin had no gang tattoos, there was no police documentation of Kelvin's gang membership, nor any "documentation" of Kelvin having been violently assaulted in the manner of a jumping in. The probation officer also testified that the Sureños are primarily a Hispanic gang, whereas Kelvin is African-American.
At the conclusion of the disposition hearing, the juvenile court heard brief argument from both sides, with Kelvin objecting that the proposed gang conditions in the aggregate were overbroad, vague and unwarranted, but the court rejected Kelvin's objections and found there was a sufficient evidentiary basis to impose them. We quote its ruling in full: "Here in juvenile court, we're all about helping [Kelvin] out and making sure that he doesn't have influences in his life that are going to lead him to a tragic end. And that includes, I think, the discretion of the juvenile court to make orders about who he can and cannot associate with. [¶] Now, nobody has asked me to find that he is, in fact, a gang member. And I'm not going to make that finding. I do understand, though, [trial counsel's] concern; that once gang terms are imposed, that it sends a certain message to law enforcement. And I'm also cognizant of his concerns about orders being too broad or too vague. I don't think that the standard orders, though, that are used regularly by this Court fall into that category. I think they've been very carefully drafted. [¶] I do think that there has to be some evidentiary basis for finding that gang terms are appropriate and some sort of a sufficient nexus. But my finding is that, in this case, it exists. There is, well, through the statements of Kelvin alone, are sufficient, let alone the other evidence that goes back as far as a year, where he's tagging a book at school with gang indicia and is doing the same now with shoes, and being involved in altercations with other gang persons, which he identifies as being a gang person. [¶] As a result, I am going to follow the recommendation of the probation officer, including the gang terms."
The court continued wardship and placed Kelvin on home detention in the custody of his parents subject to terms and conditions of probation, including the recommended gang conditions. Generally described, the conditions prohibit Kelvin from being a member of any criminal street gang as defined by Penal Code section 186.22, subdivision (f), or associating with any known gang member, and place restrictions on his clothing, communications, whereabouts, proximity to illegal weapons, and activities.
The court's order states: "1) The Minor shall not be a member of any gang, meaning a 'criminal street gang,' as defined in Penal Code Section 186.22[, subdivision] (f), nor associate with any person known by the Minor to be a gang member. [¶] 2) The Minor shall not associate with anyone identified to the Minor in writing by his Probation Officer or parent as a person or persons to whom he/she is prohibited from contacting or associating with, except in the form of incidental contact in a school setting or school-related activity. [¶] 3) The Minor shall not be present in any building or vehicle that he/she knows contains a firearm, ammunition, or other dangerous or deadly weapons. Nor shall the Minor be in the presence of any person or persons whom the Minor knows illegally possesses a firearm, ammunition, or other dangerous or deadly weapons, or who the Minor knows are gang members and possess a firearm, ammunition, or other deadly or dangerous weapons. [¶] 4) The Minor shall not be in any 'specific locations' where gang members are known by the Minor to meet or gather, or 'specific locations' known by the Minor for gang-related activity, or specified by his/her Probation Officer or parent in writing as involving gang-related activity, nor shall he/she participate in any gang-related activity. [¶] 5) The Minor shall not post, display or transmit through a computer, cellular phone, or other means of electronic communication any symbols, photographs or other information that the Minor knows to be, or that the Probation Officer informs the Minor to be, gang-related. [¶] 6) The Minor shall not wear any clothing or emblems that he/she knows are gang related or that the Probation Officer informs him/her are gang-related, including, but not limited to gang graffiti, symbols, photographs, members rosters, or other gang writings or publications. [¶] 7) The Minor shall not possess any paraphernalia that the Minor knows are gang-related or that the Probation Officer informs him/her are gang-related, including but not limited to gang graffiti, symbols, photographs, members rosters, or other gang writings and publications. [¶] 8) The Minor shall not acquire any new tattoos, either permanent or temporary, that he/she knows to be, or that his/her Probation Officer informs the Minor to be, gang-related. [¶] 9) The Minor shall not be present at any Court proceeding that the Minor knows is gang-related unless the Minor is a party, defendant, or a subpoenaed witness or is permitted to be present by the Court or his/her Probation Officer." --------
This timely appeal followed.
DISCUSSION
We recently summarized the applicable law in In re Edward B. (Mar. 21, 2017, A148887) ___ Cal.App.5th ___ (Edward B.): "The juvenile court is authorized to 'impose and require 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))," and its probation conditions are reviewed for abuse of discretion. (Id., *2.) Under well-established principles, " 'The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. "[E]ven where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults,' " ' " and so " ' " '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.' " ' " (Ibid.).
Probation conditions are reviewed under the criteria established by the Supreme Court in People v. Lent (1975) 15 Cal.3d 481 (Lent). (Edward B., supra, 2017 WL 1398778, *2.) Under the Lent framework, "[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 . . . .' " (Lent, at p. 486.)
The juvenile court's discretion in fashioning conditions of probation is limited not just by Lent's reasonableness standard, but also by the due process concept of fair warning encompassed by the void for vagueness doctrine. (Edward B., supra, 2017 WL 1398778, *2.) To survive a constitutional challenge on the ground of vagueness, "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated . . . .' " (In re Sheena K. (2007) 40 Cal.4th 875, 890.) The void for vagueness doctrine "invalidates a condition of probation ' " 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " '" (Edward B., supra, 2017 WL 1398778, *2.)
We now address Kelvin's appellate arguments.
I.
The Gang Terms Are Not Unreasonable.
Kelvin argues, first, the gang conditions the juvenile court imposed are unreasonable, because they fail to satisfy the three Lent criteria. We needn't address Kelvin's arguments the gang terms fail to satisfy the first two Lent factors, because it undoubtedly was within the juvenile court's discretion to impose the condition under the third Lent criterion, to deter future criminality. (See Lent, supra, 15 Cal.3d at p. 486 ["a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related . . . to future criminality"].)
"Where a court entertains genuine concerns that the minor is in danger of falling under the influence of a street gang, an order directing a minor to refrain from gang association is a reasonable preventive measure in avoiding future criminality and setting the minor on a productive course. Evidence of current gang membership is not a prerequisite to imposition of conditions designed to steer minors from this destructive path." (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502 (Laylah K.).) Laylah K. upheld the imposition of gang terms under Lent despite two minors' objections there was no evidence they were gang members, where both admitted they had friends who were gang members, one gang member had participated in the underlying offense with them, and their social history "reflect[ed] increasingly undirected behavior." (Laylah K., at pp. 1500-1501.) The record here, although the details differ, also reflects cause for genuine concern that Kelvin is in danger of falling under the influence of a gang, if indeed he has not already fully embraced gang membership.
Kelvin acknowledges Laylah K., but contends the facts here are distinguishable, principally because "the evidence of his gang affiliation was minimal, and the more current evidence indicated he was not becoming 'entrenched' with a gang or succumbing to gang pressures." We disagree. Unlike the minors in Laylah K., Kelvin at first admitted he was in a gang; and though he later recanted, he continued to acknowledge to his probation officer he was an associate of the Sureño gang. Furthermore, acting contrary to his own personal interests, he got into a gang-related fight while in custody shortly before an important court appearance at which the juvenile court would decide his fate (the disposition hearing). So, if anything, the evidence here justifying preventive measures to deter this minor from falling into a destructive life of gang membership is even stronger than it was in Laylah K.
Kelvin argues nonetheless that the gang-related fight at Juvenile Hall was a "one-time brief scuffle" and did not recur, which shows that "his self-reported gang affiliation was minimal," despite having stated that " 'as a Sureno member, it was mandatory to "smash on any Norteno's in his face." ' " Kelvin's fight with a rival gang member, though, took place just 27 days before the hearing; while Kelvin is to be commended for his efforts to behave himself until his next court appearance, 27 days is hardly a solid track record of success. The trial court could find, and impliedly did, that the gang influences in Kelvin's life posed a threat to his rehabilitative prospects notwithstanding a short window of good behavior. Indeed, the gang-related fight was not the only cause for concern on this score: Kelvin tagged his own shoe with a gang symbol while in custody, and had been suspended from school a year earlier for tagging a textbook with gang graffiti. The trial court could find his gang ties were more than "minimal."
At bottom, in challenging the imposition of gang terms, Kelvin would have us re-weigh the evidence, which is not our role as a reviewing court. The probation department carefully assessed the need for these conditions, meeting with Kelvin not once but three times before the hearing to explore the subject of his gang ties. And we are satisfied from our review of this record the juvenile court by no means "rubber-stamped" the probation department's recommendation to impose gang terms, as Kelvin suggests. The court expressly considered and weighed Kelvin's objections to the probation department's recommendation. Yet, as was true in Laylah K. (see 229 Cal.App.3d at p. 1501), Kelvin's entire social history reflected a troubling downward trend: the record is replete with evidence of Kelvin's substance abuse problems that were not improving, failed drug tests, trouble in school, as well as many alleged probation violations. What is more, by the time of the disposition hearing, Kelvin had been removed from his father's custody and detained in Juvenile Hall because the juvenile court was worried "that he's struggling with substance abuse and now hanging out with adults where firearms are present," and engaged with "drugs, violent confrontations" at great risk to his own personal safety. We also note the juvenile court did not leap to impose gang terms at the first hint of problems. The probation department noted Kelvin's possible gang association early on, in its April 28, 2015 disposition report which described the concerns of Kelvin's father, and the prosecutor articulated that concern at a disposition hearing on June 30, 2015. But it was only in the end, a year later, after the juvenile court was faced with Kelvin's unwavering acknowledgement that he was at least associated with the Sureños, a pattern of repeated probation violations and drug use, criminal activity that had been escalating in seriousness (beginning at the outset with car theft, and culminating in the end with charges of illegal firearm possession) and a recent physical fight while in custody that was admittedly gang-related, that the court saw fit to impose these terms, with the intent of getting Kelvin finally back on a path toward more positive influences. It did not abuse its discretion.
II.
The Gang Conditions Will Not Be Modified on Constitutional Grounds.
Next, Kelvin challenges one of the gang conditions on constitutional grounds. It states: "The minor shall not be in any specific locations where gang members are known known by him to meet or gather, or specific locations known by him for gang-related activity, or specified by his probation officer or parent in writing as involving gang-related activity, nor shall he/she participate in any gang-related activity."
Relying on our decision in In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.), Kelvin contends the condition is unconstitutionally vague and overbroad. In Victor L., we dealt with a probation condition requiring the minor to stay away from "areas known by [him] for gang-related activity." (Id. at p. 913.) We concluded the phrase "gang-related activity" was unconstitutionally vague, because it failed to provide notice of "what areas he may not frequent or what types of activities he must shun." (See id. at pp. 913-914.) It is unnecessary to repeat our analysis (see id. at pp. 913-919), which is fairly summarized in Kelvin's opening brief, because in Victor L., we modified the unconstitutionally vague condition to read: "The Minor shall not be in any areas where gang members are known by Minor to meet or get together, or areas known by Minor for gang-related activity (or specified by his probation officer as involving gang-related activity), nor shall he participate in any gang activity." (Id. at pp. 931-932.) The language the juvenile court utilized here closely tracks the language we approved in Victor L. Indeed, Kelvin acknowledges this but fails to explain in his opening brief how there is any constitutionally significant distinction. Instead, he asserts vaguely that "the ambiguity and overbreadth issues identified with the phrase 'gang-related activity' in Victor L. apply here as well," and "Victor L.'s interpretation of the probation condition applies equally to the one imposed here." We do not understand what he has in mind here.
Kevin shifts gears in his reply brief. Having asserted in his opening brief that "the probation condition prohibiting appellant from being in locations involving gang-related activity is unconstitutionally vague and overbroad" (italics added), he disclaims any challenge to the geographic aspect of the gang condition in his reply brief. He agrees with the People that "the wording in the probation condition about geographic locations passes constitutional muster." Instead, his reply brief argues, the condition should be modified to require his probation officer to specify in writing what activity he is prohibited from participating in. He suggests that "[m]odifying the condition to prohibit [him] from participating in activities that he knows to be the activities of a criminal street gang or that his probation officer has informed him in writing to constitute an activity that is gang-related" would provide him with constitutionally adequate notice.
That contention is forfeited. Kelvin's opening brief did not specifically challenge the prohibition against him "participat[ing] in any gang-related activity." On the contrary, the argument heading of his opening brief refers only to "the probation condition prohibiting appellant from being in locations involving gang-related activity." (Italics added.) Accordingly, the People have had no opportunity to respond to this new argument, or brief whether it is constitutionally adequate. "It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.) In addition, our decision in In re Oswaldo R. (May 2, 2017, A148364) ___ Cal.App.5th ___ , which issued after the briefing closed in this case, held that this language is not unconstitutionally vague, and upheld its use by the same superior court.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.