Babak S., In re

• Decision Date: 16 September 1993
• Docket Number: No. H010161,H010161
• Citation: Babak S., In re, 22 Cal.Rptr.2d 893, 18 Cal.App.4th 1077 (Cal. App. 1993)
• Parties: In re BABAK S., a Person Coming Under the Juvenile Court Law. Pedro SILVA, as Chief Probation Officer, etc., Plaintiff and Respondent, v. BABAK S., Defendant and Appellant.
• Court: California Court of Appeals

Page 893

22 Cal.Rptr.2d 893

18 Cal.App.4th 1077

In re BABAK S., a Person Coming Under the Juvenile Court Law Pedro SILVA, as Chief Probation Officer, etc., Plaintiff and Respondent, v. BABAK S., Defendant and Appellant.

No. H010161.

Court of Appeal, Sixth District, California.

Sept. 16, 1993.

Rehearing Denied Oct. 14, 1993.

Review Denied Dec. 15, 1993.

Anthony Boskovich, San Jose, Under appointment by the Sixth District Appellate Program, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Juliet B. Haley, Deputy Atty. Gen., for plaintiff and respondent.

MIHARA, Associate Justice.

I.

Babak S., a minor, appeals from an order committing him to the California Youth Authority after the juvenile court sustained a petition filed pursuant to WELFARE AND INSTITUTIONS CODE SECTION 777¹, alleging that the minor had violated the conditions of his probation by living in the United States with his parents, and by associating with a known probationer or gang member. On appeal, the minor contends the order must be reversed because (1) the former allegation was premised upon an unconstitutional probation condition banishing him to Iran; (2) he was not under order to refrain from associating with probationers or gang members; (3) assuming he was under such order, there was insufficient evidence to sustain the allegation; (4) reconsideration of the probationer/gang allegation is prohibited by principles of double jeopardy; and (5) the juvenile court was without authority to impose a suspended CYA commitment. For reasons explained below, we find the first and last contentions to be meritorious. Accordingly, we reverse the dispositional order and remand for further proceedings.

II. Background

Babak first became a ward of the juvenile court in 1989 when he admitted the commission of four misdemeanor offenses pursuant to a negotiated agreement. ² The court admitted Babak to probation with various conditions, and ordered the minor detained at a county ranch facility.

During the next year and a half, the court sustained three supplemental petitions. (§ 777.) Two of these petitions arose after the minor escaped from the ranch; the third petition was filed as a result of the minor's failure to attend school regularly after his release from the ranch facility. At the disposition hearing on the third petition, the court ordered all previously imposed conditions of probation to remain in effect and imposed an additional condition prohibiting Babak from associating with any "known probationer, parolee, or gang member."

In July 1991, Babak was charged with the concealed possession of a dagger. (Pen.Code, § 12020, subd. (a).) The court sustained the petition and continued Babak on formal probation subject to various conditions.

Some two months later, in September 1991, a supplemental petition was filed alleging that Babak, then 16 years of age, had violated the terms of his probation by associating with a known probationer. The petition was sustained and Babak was ordered back to the ranch. Another supplemental petition followed in November 1991, this time charging the minor with the consistent violation of ranch rules. After the petition was sustained, the minor was again returned to the ranch.

On January 30, 1992, a petition alleging ranch failure was filed after Babak and another ranch detainee fought over their respective gang affiliations. In a report to the court, Babak's probation officer, Christine Frederick, recommended that a Youth Authority commitment be suspended on condition that the minor move to Iran to live with his parents or relatives and that he not return to the United States without prior court approval. This recommendation was premised upon the parents' request that Babak be permitted to live with them in Iran.

On February 18, 1992, the juvenile court sustained the petition. In accordance with the recommendation of the probation officer, the court committed the minor to the Youth Authority, said commitment to be suspended on condition that the minor (1) reside with his parents in Iran for two years, (2) report to the probation officer as directed, and (3) not change his place of residence without the prior approval of the probation officer. All previous orders which were consistent with the court's disposition were to remain in effect. Babak was ordered detained at juvenile hall until such time as he could be transported to the airport for his departure to Iran.

On July 13, 1992, Frederick received information that Babak was back in the United States. The following day, Frederick went to the minor's residence where she discovered Babak and Lonnie M. asleep in Babak's bedroom. Two days later, Frederick filed a supplemental petition alleging that Babak had violated the court's previous order by "living with his parents in the United States." The petition was subsequently amended to include an allegation that Babak had been in the company of Lonnie M., a "known probationer and gang member."

At a contested hearing on the petition, Frederick testified that on June 18, 1991, Babak was placed under a probation order forbidding his association with a probationer or gang member. The court then took judicial notice of its "own orders." Frederick went on to testify to her discovery of appellant and Lonnie, whom she described as a known probationer and gang member. Following his arrest on the underlying petition, appellant admitted that he had been back in the United States for over two weeks. When Frederick asked appellant why he hadn't contacted her following his return, appellant said "he was going to, but ... hadn't done that yet."

Carl Tademaru testified that he was currently Lonnie's probation officer, and had supervised Lonnie on probation since 1991. In July 1991, Lonnie was involved in a stabbing incident which resulted in his confinement at the ranch. After his release, he had absconded and had not reported to Tademaru for the last two or three months. Sometime after he was discovered at appellant's home, Lonnie "self surrendered."

Testifying on behalf of her son, Mrs. S. testified that Babak had gone to Iran with his father and lived there for approximately two months. Babak had stayed with his maternal grandmother, who had died sometime after his arrival. After her death, Babak had nowhere else to stay because his father was quarreling with all the other relatives. For this reason, Babak's father decided the minor should return to the United States.

According to Mrs. S., Lonnie had slept overnight on four or five occasions since Babak's return. The two had spent time together at the family home; however, Babak had not left the house since his return. Babak's father and mother were separated; the father was living in Iran.

Babak testified that he had gone to Iran with his father and had stayed there approximately two months. After his grandmother's death, he had no other relatives with whom he could stay, and his father had then decided he should return to the United States. Babak testified he "had to come back [because he] had no other choice."

Babak admitted his association and friendship with Lonnie, but testified Lonnie had told him he was no longer associated with a gang. Lonnie did not know whether he was on probation or not, but thought he was "off probation" because he was eighteen and his case had been "cleared." Babak admitted that he had not called his probation officer during the six-week period since his return from Iran.

The juvenile court sustained the petition and held that the previous disposition had not been effective. The court justified its findings as follows: "Okay. As you know ... before I can invoke [a] more restrictive disposition on [Babak] I'd have to find that ... the previous disposition has not been effective in the rehabilitation of [the minor], and I'm prepared at this time to make such a finding. [p] And I do that ... for several reasons. First of all, he was personally aware of the law, his probation order that he was to go to Iran, come back here and then go back on probation. He came. He'd been here for three, two, three months and never reported to his probation officer. He's flagrantly violated a court order by doing that, and he's been on probation enough times and he's been at the ranch enough times to know he's got to stay in contact with his probation officer. And he flagrantly violated that court order, and I think that's sufficient enough to find that his previous disposition has not been effective in his rehabilitation.

"Now, when you take in consideration all the prior commitments that he's had, he's been given every chance. He's had every opportunity to do everything that the juvenile court has to offer, and he's ... blown every one of 'em. He's really put handcuffs on me. I can't send him any other place but the California Youth Authority. And I think that's where the best place is for him."

The court then "lift[ed] the prior suspension of the California Youth Authority commitment ..." and committed the minor to that institution for a maximum term of four years and seven months, with credit for time served.

III. Discussion

A. The Banishment Condition

Section 730 of the Welfare and Institutions Code grants courts broad discretion in establishing conditions of probation in juvenile cases. The court may impose "any 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." However, "[a] condition of probation which (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 does not serve the statutory ends of probation and is invalid." (People...