Opinion
F042064.
7-28-2003
In re TIMOTHY T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY T., Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Mathew Chan and Jennifer M. Runte, Deputy Attorneys General, for Plaintiff and Respondent.
A juvenile wardship petition (Welf. & Inst. Code, § 602) alleged appellant Timothy T. committed a battery while on school property, in violation of Penal Code section 243.2, subdivision (a). Following a jurisdiction hearing, the juvenile court found the allegation true, and following the subsequent disposition hearing, the court adjudged appellant a ward of the court and placed him on probation, subject to various conditions, including the following, to which appellant objected: appellant "shall, without prior consent or notice of intent test, submit to drug detection test as directed by probation or law enforcement," and he "shall, without prior consent or notice of intent to search, submit to search of person, vehicle, possessions, or residence for drugs, intoxicants, or inhalants upon request of probation or law enforcement, day or night, without search warrant or probable cause."
We refer to these conditions of probation, respectively, as the drug-test condition and the search condition.
On appeal, appellant contends the court abused its discretion in imposing the drug-test and search conditions. We will affirm.
FACTUAL BACKGROUND
Instant Offense
On September 12, 2002, appellant, age 13, was riding home from school on the school bus, and his classmate, K. was sitting two seats behind him. K. testified to the following: In the past, appellant had made remarks to K. that she found objectionable, so when appellant turned to face her, she told him to turn around. Appellant, at that point, reached out and swung at K.s face with an open hand. He missed, but he then "reached over further" and hit K. in the face with an open hand.
Appellant testified to the following on direct examination: When he turned around in his seat to "pop [his] back," K. said, "turn around[,] stupid," and she repeated this statement when, a moment later, appellant turned "the other way" to stretch his back. At that point, appellant became "very angry," and "turned around[,] . . . reached over and swung in front of her face." However, he "didnt even touch her." On cross-examination, appellant admitted it was "possible" he could have hit K.
Additional Factual Background
Information in this section is taken from the report of the probation officer, prepared in advance of the disposition hearing.
Appellant was in the eighth grade at Rosedale Middle School where, since enrolling, he "has served fifteen lunch detentions and has been suspended on five different occasions." His transgressions include "pushing another student"; "placing a student in a neck-hold"; and, referring to another student, stating "he could gut her like a fish. " Appellant "admits consuming alcohol on only one prior occasion." He "denies consuming or experimenting with any other drug, intoxicant or inhalant."
Appellants father told the probation officer, " My son wasnt even suspended from school for this, so I guess he isnt guilty. He didnt do this. The police report is incorrect. That girl was calling my son names. These girls think every thing they say is gospel, they know it, and they know they can get away with it. If my son was two seats away, how could my son get close enough to hit that girl? Nothing should happen because my son is innocent. " The probation officer noted: "[From] speaking to the minors parents, it is obvious they support the minors anti-social and incorrigible behavior. In fact, the minors father feels the minor is innocent and should not be punished for his actions. They also report his school work is excellent in spite of his deplorable behavior and failing grade point average. His parents appear unmotivated to change their approach to parenting and thus it is unlikely the minors behavior will be deterred without formal intervention."
DISCUSSION
Appellant contends nothing in his history or the circumstances of the instant offense "justified impinging" upon his right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures, and therefore the court abused its discretion in imposing the drug-use and search conditions. We disagree. "A juvenile court is vested with broad discretion to select appropriate probation conditions." (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) Welfare and Institutions Code section 730 provides, in relevant part: "The court 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."
"In [People v. Lent (1975) 15 Cal.3d 481, 124 Cal. Rptr. 905, 541 P.2d 545], the Supreme Court determined [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 . . . ." " (In re Laylah K. (1991) 229 Cal. App. 3d 1496, 1500, 281 Cal. Rptr. 6, disapproved on other grounds, In re Sade C. (1996) 13 Cal.4th 952, 983, fn. 13, 920 P.2d 716.) "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." (People v. Lent , supra, 15 Cal.3d at p. 486.)
However, " [a] condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court." (In re Jimi A. (1989) 209 Cal. App. 3d 482, 257 Cal. Rptr. 147, id. at pp. 487-488, internal quotation marks omitted, accord, In re Josh W. (1997) 55 Cal.App.4th 1, 5-6; In re Antonio C., supra, 83 Cal.App.4th at p. 1033 [minors constitutional right "more circumscribed" than those of adult].) "Further, when the state asserts jurisdiction over a minor, it stands in the shoes of the parents. A parent may curtail a childs exercise of constitutional rights because a parents own constitutionally protected " liberty " includes the right to " bring up children " and to " direct the upbringing and education of children. " " (In re Antonio C. , supra, 83 Cal.App.4th at pp. 1033-1034.) And "in planning the conditions of the appellants supervision, the juvenile court must consider not only the circumstances of the crime but also the minors entire social history. . . ." (In re Jimi A., supra, 209 Cal. App. 3d at p. 488, internal quotation marks omitted.)
"However, a courts discretion is not boundless. "A probationer has the right to enjoy a significant degree of privacy, or liberty, under the Fourth, Fifth and Fourteenth Amendments to the federal Constitution . . . ." " (In re Frank V. (1991) 233 Cal. App. 3d 1232, 1242, 285 Cal. Rptr. 16.) Thus, "where an otherwise valid condition impinges on constitutional rights, the condition must be carefully tailored and reasonably related to the compelling state interest in the minors reformation and rehabilitation." (In re Antonio C., supra, 83 Cal.App.4th at p. 1034.)
As appellant points out, although he admitted using alcohol on one occasion, there is no indication in the record appellant ever used drugs. However, there is an obvious connection between alcohol use and criminal conduct, as the Legislature indicated in making the following uncodified finding in enacting Welfare and Institutions Code section 727.3: "The precursors of serious criminality by juveniles include . . . alcohol and drug abuse." (Stats. 1989, ch. 1117, § 1, subd. (a)(2).) Moreover, "empirical evidence shows that there is a nexus between drug use and alcohol consumption. It is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs." (People v. Beal (1997) 60 Cal.App.4th 84, 87.)
We recognize there is no indication of drug or alcohol abuse in the record. Nonetheless, even a single instance of alcohol use by a 13-year-old may properly be taken as a warning of a potential substance abuse problem that a juvenile court, given its "supervisory function to provide for [a minors] safety and protection" (In re Antonio C., supra, 83 Cal.App.4th at p. 1035), is not required to ignore. We see no reason to require that a court, under the circumstances here, wait until a full-blown drug and/or alcohol problem appears before intervening. Our conclusion is reinforced by the probation officers observation that appellants parents "support the minors anti-social and incorrigible behavior," and the officers opinion that given the attitudes of appellants parents, "it is unlikely the minors behavior will be deterred without formal intervention." (Cf. In re Jimi A., supra, 209 Cal. App. 3d at p. 488 [warrantless search and drug testing probation conditions upheld based in part on "lack of parental supervision" for minor].)
We find instructive In re Laylah K., supra, 229 Cal. App. 3d 1496. In that case, the appellate court upheld various conditions of probation imposed on two minors, Laylah and Sombrah, including conditions "relating to . . . search and seizure waiver[] and submission to chemical testing," although the minors offenses did not involve drugs or alcohol. However, both minors "admitted alcohol use"; Laylah also admitted marijuana use; and both minors "were runaways whose parents had lost control over them . . . ." (Id. at p. 1502.) This last factor "justified greater supervision by the court over [the] actions" (ibid .) of the minors, whose "history reflects increasingly undirected behavior" (id. at p. 1501). "Considering their entire social histories, the conditions were reasonably designed to prevent future criminal behavior." (Id. at p. 1503.)
Appellant, like Sombrah, admitted to alcohol use but has no history of drug use. And like both minors in Laylah K., appellants circumstances include a history of antisocial, albeit not criminal, behavior, and a lack of parental guidance. Given these factors, considered in conjunction with the proper role of the juvenile court and a minors need for guidance and supervision, the conduct required by the challenged conditions, viz., submitting to warrantless searches and drug testing, is " reasonably related to future criminality . . . ." (People v. Lent, supra, 15 Cal.3d at p. 486.)
We conclude further that the search and drug-test conditions do not unduly burden appellants Fourth Amendment rights. On this point, we find instructive In re Kacy S. (1998) 68 Cal.App.4th 704. In that case, the court upheld the imposition of a probation condition imposed pursuant to Welfare and Institutions Code section 729.3, requiring two minors to submit to urine testing, although neither alcohol nor drugs were implicated in the minors offenses or social histories. The court acknowledged that the collection and testing of urine constituted a search under the Fourth Amendment and, although not physically intrusive, implicated privacy interests protected by the Fourth Amendment. However, the court stated, whether a search is unreasonable is determined by balancing those interests against the governmental interest served by the search. Balancing the relevant factors, the court concluded: "The testing condition is a reasonable intrusion upon a probationers expectations of privacy. [Citation.] The governmental interest in testing is strong. The juvenile courts goals are to protect the public and rehabilitate the minor. [Citations.] Section 729.3 serves both goals. It protects the public by establishing procedures to deter or prevent use of alcohol and unlawful drugs by minors. It advances the rehabilitation of young offenders by seeking to detect alcohol or drug use as a precursor of criminal activity in order to facilitate intervention at the earliest time. [Citation.] Although urine testing constitutes an intrusion on privacy, the effect of the intrusion is outweighed by the governments legitimate interest in closely monitoring the rehabilitation of minors who are granted probation and returned to the custody of their parents." (Id. at p. 711.)
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." The People do not argue that the drug-test condition is authorized by Welfare and Institutions Code section 729.3 .
Here too, the challenged conditions serve the important dual goals of protecting the public and rehabilitating the minor. Moreover, these conditions are carefully tailored to the states interest in promoting these goals. The court did not abuse its discretion in imposing the search and drug-test conditions.
DISPOSITION
The order appealed from is affirmed.