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In re D.G.

July 30, 2010


(Alameda County Super. Ct. No. SJ09012052-02), Hon. Dennis Hayashi.

The opinion of the court was delivered by: Margulies, J.


Appellant D.G., a ward of the court, was placed on juvenile probation after he and another person were seen burglarizing a home. Neither appellant's current burglary nor his past offenses were committed near a school or involved classmates or other juveniles. Yet in imposing probation, the juvenile court included a condition prohibiting appellant from coming within 150 feet of any school campus other than the school he is attending. Appellant contends the imposition of this condition was an abuse of the court's discretion because it is unrelated to his current or past offenses or to his possible future criminality and is vague and overbroad, thereby improperly burdening his constitutional right to travel.

We conclude the condition as drawn was unreasonable because it is not related to appellant's offenses and does not prohibit otherwise criminal conduct and because there is no evidence in the record to suggest the condition will serve a rehabilitative purpose by preventing his future criminality. We narrow the condition consistent with state law that prohibits persons from visiting school grounds without notifying school authorities and affirm the court's dispositional order as so modified.


On August 26, 2009, the Alameda County District Attorney filed a wardship petition under Welfare and Institutions Code section 602, subdivision (a), alleging appellant committed first degree burglary (Pen. Code, § 459) and received stolen property (Pen. Code, § 496). The evidence at trial demonstrated that appellant and another person forced open the back door of an Oakland home while the residents were away.*fn1 The two later emerged with a camera and a safe, ran away as police arrived, and eventually were found hiding nearby.

The juvenile court found the allegations of the wardship petition to be true. The probation department's dispositional report recommended appellant, who had already been declared a ward of the court as a result of earlier offenses, be placed under probation, subject to several conditions. One of the recommended conditions would prohibit appellant from being "on any campus or within 200 feet of any campus other than the school in which [he is] currently enrolled." At the dispositional hearing, appellant's counsel did not oppose the imposition of probation, but he noted, "I don't see the nexus for the campus clause." Responding, the prosecutor argued, "I would definitely think a campus clause is appropriate. If he's not enrolled in a school, he has no business being there." The juvenile court imposed probation, with the condition, among others, "Do not be on any campus or within 150 feet of any campus other than the school in which you are currently enrolled."

As noted, this was not appellant's first contact with the juvenile justice system. In a Welfare and Institutions Code section 602 petition filed five months earlier, appellant was alleged to have committed two drug-related offenses. According to the police report of the incident, appellant was arrested after having sold marijuana to an undercover police officer from a car located in the 2600 block of East 27th Street in Oakland. That petition was amended two weeks later to add allegations of auto burglary after appellant broke the window of a van parked in the 2500 block of 23rd Avenue in Oakland and was caught attempting to remove the vehicle's stereo. According to the dispositional report for the current incident, appellant had "a total of five referrals to the probation department" since the age of 11, but no details were provided other than that he once "trespassed into an apartment complex and kicked in a door."


Appellant contends the imposition of the school campus probation condition was an abuse of the juvenile court's discretion both because it was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded on another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-295, and because it represented an unconstitutional infringement on his right to travel.

Under Welfare and Institutions Code section 730, subdivision (b), the juvenile court, in placing a ward on probation, "may 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." (See In re Sheena K. (2007) 40 Cal.4th 875, 889.) Consistent with this mandate, the juvenile court is recognized as having " 'broad discretion in formulating conditions of probation' " (In re Tyrell J. (1994) 8 Cal.4th 68, 81 (Tyrell J.), overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 139), and the juvenile court's imposition of any particular probation condition is reviewed for abuse of discretion (In re Walter P. (2009) 170 Cal.App.4th 95, 100).

While adult criminal courts are also said to have "broad discretion" in formulating conditions of probation (People v. Carbajal (1995) 10 Cal.4th 1114, 1120), the legal standards governing the two types of conditions are not identical. Because wards are thought to be more in need of guidance and supervision than adults and have more circumscribed constitutional rights, and because the juvenile court stands in the shoes of a parent when it asserts jurisdiction over a minor, juvenile conditions "may be broader than those pertaining to adult offenders." (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) In Tyrell J., the Supreme Court explained another aspect of the difference: "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.]... [¶] 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.] ' "Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile." ' " (Tyrell J., supra, 8 Cal.4th at pp. 81-82.)

While broader than that of an adult criminal court, the juvenile court's discretion in formulating probation conditions is not unlimited. (In re Walter P., supra, 170 Cal.App.4th at p. 100.) Despite the differences between the two types of probation, it is consistently held that juvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under Lent, supra, 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....' [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Id. at p. 486, fn. omitted; see, e.g., In re Luis F. (2009) 177 Cal.App.4th 176, 188; Alex O. v. Superior Court (2009) 174 Cal.App.4th 1176, 1180; In re G.V. (2008) 167 Cal.App.4th 1244, 1250; In re Antonio C. (2000) 83 Cal.App.4th 1029, 1034 [all holding the Lent factors are applicable in evaluating juvenile probation conditions].) Further, as noted above, the Supreme Court instructed in Tyrell J. that while the juvenile court may impose a wider range of probation conditions, those conditions are permissible only if " ' "tailored specifically to meet the needs of the juvenile." ' " (Tyrell J., supra, 8 Cal.4th at p. 82.)

Applying the standards of Lent, we find no reasonable basis for the juvenile court's condition prohibiting appellant from coming within 150 feet of any school other than the one he is attending. First, there is no relationship between school or students and appellant's current or past crimes. None were committed on school grounds; none involved school age children; and none involved uniquely juvenile conduct. Nor does this condition relate to conduct that is itself criminal. It is not illegal for persons to pass within 150 feet of school grounds, and while, as discussed below, there are statutes regulating non-student presence on school grounds, none of these statutes bans persons from school grounds altogether, as the probation condition does. Finally, there is no reason to conclude this restriction is related to appellant's possible future criminality. Because there is nothing in his past or current offenses or his personal history that demonstrates a predisposition to commit ...

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