In re S.T. CA1/1 filed
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Filed 3/23/11 In re S.T. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION ONE In re S.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, A129414 v. (Alameda County Super. Ct. No. SJ08011550-03) S.T., Defendant and Appellant. Appellant S.T., a ward of the court, was placed on juvenile probation after he and another minor were caught in the process of burglarizing a residence. One of the conditions of appellant s probation was that he not be within 25 feet of any campus other than [his] school of enrollment. Appellant challenges this condition on the grounds it is unrelated to his current or past offenses or to his possible future criminality, is not narrowly drawn or specifically tailored to his needs for reform, and it impermissibly burdens his constitutional right to travel. We agree the condition is unreasonable. Consistent with our decision in In re D.G. (2010) 187 Cal.App.4th 47, we will narrow it to generally conform to state law that prohibits persons from visiting school grounds without notifying school authorities. We affirm the juvenile court s dispositional order as so modified. I. BACKGROUND On June 28, 2010, the Alameda County District Attorney filed a juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a), alleging appellant had committed first degree burglary (Pen. Code, § 459), and had a history of two prior adjudications.1 Appellant and another juvenile were arrested following a report of a possible burglary in progress at an apartment building on Spruce Street in Oakland. At a contested jurisdictional hearing, a resident of the building identified appellant as one of two juveniles he had seen peering into the window of one apartment, and breaking the windows and attempting to pry open the door of another unit, in an unsuccessful attempt to gain entry. Appellant acted as a lookout while the second juvenile used a crowbar to try to pry open the door. The juvenile court found the first degree burglary allegation true, and declined to reduce the charge to misdemeanor vandalism. At the dispositional hearing, the court placed appellant on probation for 84 months with credit for 327 days served. The court ordered he be placed in an out-of-home placement with various probation conditions, including an order that he not be within 25 feet of any campus other than [his] school of enrollment. Appellant filed a timely notice of appeal. II. DISCUSSION Appellant contends the imposition of the school campus probation condition was an abuse of the juvenile court s discretion because it was unreasonable and invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), and constituted an unconstitutional infringement on his right to travel. Appellant maintains this probation condition is unrelated to his present or past crimes, proscribes conduct that itself is not criminal, forbids conduct that is not reasonably related to future criminality, is vague and 1 The prior adjudications were for receiving stolen property (Pen. Code, § 496) in connection with taking his sister s vehicle without her permission, and grand theft (Pen. Code, § 487, subd. (c)) for participating with other juveniles in a street robbery of an adult victim s cash and bicycle. 2 overbroad, amounts to banishment, restricts his right to travel, and is not specifically tailored to his needs. Lent adopted a three-part standard for evaluating adult probation conditions: 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. (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) The courts have consistently held the same factors are relevant to evaluating juvenile probation conditions. (See In re D.G., supra, 187 Cal.App.4th at pp. 52 53 and cases cited therein.) In In re D.G., applying Lent, we ordered a nearly identical probation condition to be modified in a case involving facts very similar to those presented here. The probation condition challenged in In re D.G. read as follows: Do not be on any campus or within 150 feet of any campus other than the school in which you are currently enrolled. (In re D.G., supra, 187 Cal.App.4th at p. 51.) Consistent with Penal Code section 627.2,2 we ordered the condition be modified to read: Do not enter on the campus or grounds of any school unless enrolled, accompanied by a parent or guardian or responsible adult, or authorized by the permission of school authorities. (In re D.G., at p. 57.) As in this case, the juvenile had been adjudicated a ward for burglarizing a residence, and there was no evidence his current offense or prior juvenile adjudications had any nexus to his 2 Penal Code sections 627.2 and 627.8 make it misdemeanor offense for an outsider [to willfully and knowingly] enter or remain on school grounds during school hours without having registered with the principal or designee, except to proceed expeditiously to the office of the principal or designee for the purpose of registering. (Pen. Code, § 627.2.) Section 627.1, subdivision (a) defines an outsider as, generally, a person who is not a school student or parent of a student, a school employee, or a school or public official. 3 presence on or near a school campus. (Id. at pp. 50 51, 53.) Applying the Lent standards in that factual context, we held there was 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. (In re D.G., at p. 53.) We noted the proscribed conduct of coming within 150 feet of a school was not itself criminal, and found no relationship between school or students and [the juvenile s] current or past crimes, or any reason to believe the . . . restriction will serve the rehabilitative function of precluding [the juvenile] from any future criminal acts. (Ibid.) Thus, we ordered the condition modified to proscribe only conduct generally consistent with that made criminal under Penal Code sections 627.2 and 627.8. (In re D.G., at p. 56.) As the Attorney General properly concedes, this case is controlled by our holding in In re D.G. The condition, as drawn, is unrelated to appellant s current or past offenses or to his possible future criminality. It is overbroad and not specifically tailored to his needs for reform. Appellant did not commit his adjudicated offenses on school grounds and none involved school children. He has shown no predisposition to commit crimes near school grounds or upon students. There is no reason to believe the condition will serve the rehabilitative function of precluding appellant from any future criminal acts. We will, accordingly, narrow the challenged condition so that it conforms generally to the requirements of Penal Code section 627.2. III. DISPOSITION The dispositional order s probation condition precluding appellant from coming within 25 feet of any campus other than his school of enrollment is modified to read as follows: Do not enter on the campus or grounds of any school unless enrolled, 4 accompanied by a parent or guardian or responsible adult, or authorized by the permission of school authorities. As so modified, the order is affirmed. _________________________ Margulies, Acting P.J. We concur: _________________________ Dondero, J. _________________________ Banke, J. 5
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