Josh W., In re

• Decision Date: 19 May 1997
• Docket Number: No. A074495,A074495
• Parties: , 65 USLW 2815, 97 Cal. Daily Op. Serv. 3784, 97 Daily Journal D.A.R. 6391 In re JOSH W., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JOSH W., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 701

63 Cal.Rptr.2d 701

55 Cal.App.4th 1, 65 USLW 2815, 97 Cal. Daily Op. Serv. 3784,

97 Daily Journal D.A.R. 6391

In re JOSH W., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. JOSH W., Defendant and Appellant.

No. A074495.

Court of Appeal, First District, Division 3, California.

May 19, 1997.

Certified for Partial Publication ^*

Review Denied Aug. 27, 1997.

[55 Cal.App.4th 3] L. Richard Braucher, Richmond, under appointment by the Court of Appeal, for appellant.

Daniel E. Lungren, Attorney General; George Williamson, Chief Assistant Attorney General; Ronald A. Bass, Senior Assistant Attorney General; Ronald S. Matthias, Supervising Deputy Attorney General; David D. Salmon, Deputy Attorney General, for respondent.

PHELAN, Presiding Justice.

This is an appeal from a dispositional order, in a juvenile proceeding under Welfare and Institutions Code section 602, ¹ by which We conclude that appellant's failure to cite Lent in support of his objection to the probation condition does not preclude consideration of his claims on appeal. However, we further conclude that the condition is reasonably related to a proper rehabilitative objective. Accordingly, we affirm.

appellant Josh W. was placed on probation for one year on the condition that [55 Cal.App.4th 4] he be committed to juvenile hall for 15 weekends unless and until he reveals the identity of the other participants in the incident which gave rise to the petition. Appellant contends that this condition is invalid under People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent), and that it violates both the prohibition against retribution contained in section 202, subdivision (e), and the rehabilitative objectives of the juvenile law as set forth in section 202, subdivisions (a) and (b). Appellant thus urges us to set aside both the juvenile hall commitment and its concomitant disclosure condition. Respondent contends that appellant waived his objections to the subjest condition by failing to raise them in the trial court, and that the condition is reasonably related to the purposes set forth in the code.

FACTUAL AND PROCEDURAL BACKGROUND

On October 10, 1995, the District Attorney of Solano County filed a petition under Welfare and Institutions Code section 602 in the Solano County Juvenile Court, alleging felony violations of Penal Code section 459 (count 1 [commercial burglary] ) and Penal Code section 496 (count 2 [receiving stolen property] ), plus a misdemeanor violation of Penal Code section 484 (count 3 [petty theft] ). Counts 1 and 2 relate to an incident on September 22, 1995, in which appellant was apprehended by Vallejo police officers investigating a report of a suspicious vehicle. As the officers approached and focused a spotlight on the car, appellant and two other juveniles got out of the car and began to walk away. Suddenly, the three juveniles began to run. One of the officers stopped appellant, who again began to run. The other two juveniles got away, and appellant refused to identify them. The vehicle contained several cases of liquor, boxes of cigarettes, a cash drawer, and rolled coins which were later determined to have been stolen from a convenience store.

On February 1, 1996, appellant admitted count 2 as a misdemeanor, and the other counts were dismissed with a Harvey waiver. ² At the dispositional hearing on April 17, 1996, the juvenile court commissioner adjudged appellant to be a ward of the court and placed him on probation for one year. A condition of probation was that appellant be committed for 15 weekends to juvenile hall, unless and until he discloses the identity of coparticipants in the activity he admitted. Defense counsel objected, claiming that informing on the other juveniles would expose appellant to retribution and danger, and that appellant's father had already received threatening phone calls. The commissioner replied: "That's fine. Then they should have thought about that before he committed an offense. And if he doesn't want to reveal, that's fine, too. He can serve 15 weekends in Juvenile Hall while his buddies are out there roaming around. So that's going to be the Court's order." The commissioner added that if appellant revealed the names of his confederates, his identity would remain anonymous and would not be disseminated to any police officer.

Appellant applied to the judge of the juvenile court for a rehearing of the disposition pursuant to section 252. On April 29, 1996, the judge of the juvenile court denied the request. On May 31, 1996, appellant filed a notice of appeal from both rulings, specifying his objections to the probation condition. Also, on May 31, 1996, the juvenile court entered an order staying the commitment to juvenile hall pending determination of this appeal.

The appeal is timely filed. The order is appealable. (§ 800, subd. (a).)

DISCUSSION

I. Appellant Did Not Waive His Objections to the Probation Condition. ^**

II. The Condition Imposed Is Reasonably Related to a Proper Rehabilitative Objective.

Section 730, subdivision (b) authorizes the juvenile court 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." A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. (In re Tanya B., supra, 43 Cal.App.4th at p. 7, 50 Cal.Rptr.2d 576.) That discretion will not be disturbed in the absence of manifest abuse. (Ibid.)

In Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545, our Supreme Court held that a condition of probation which has no relationship to the crime of which the offender was convicted, relates to conduct which is not itself criminal, and requires or forbids conduct which is not reasonably related to future criminality, does not serve the statutory ends of probation and is invalid. (Id. at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.) "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." (Ibid.) There is no dispute that Lent applies to juvenile court probation orders. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084, 22 Cal.Rptr.2d 893.)

Appellant contends that the subject condition is invalid under Lent because it has no relation to the crime for which he was found responsible, and is not reasonably related to future criminality. ⁴ We disagree. There is no reason to believe the two juveniles who eluded the police were any more or less responsible than appellant was for the offenses with which he was charged, or the offense he admitted. Identification of these juveniles thus relates directly to the admitted offense, which has gone partially unsolved. A disclosure requirement also relates to the offense for which appellant was held responsible, albeit somewhat indirectly, in that it may lead to enhanced restitution to the victim of that offense.

Identification of coparticipants may also provide information that would enable the court to define rehabilitative no-contact orders. It, thus, relates to appellant's potential for future criminality which might be diminished by compliance with such orders. The requirement that appellant identify his confederates asks him to sever the bonds of loyalty to associates who may have engaged with him in criminal activity. Appellant's arguments to the contrary notwithstanding, it is quite reasonable to believe that separating a juvenile from delinquent peers will have some tendency to reduce the likelihood of future participation in criminal activity. (See In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500-1502, 281 Cal.Rptr. 6 [prohibiting minor from associating with known gang members is reasonably related to avoidance of future criminality].) Furthermore, if appellant's confederates are apprehended and afforded rehabilitation in the juvenile justice system, it may also reduce the probability that appellant and they will resume their individual or collective criminal activities upon release. Put another way, satisfaction of the challenged condition would evidence appellant's willingness to assume the duties and behavior of a responsible, law-abiding citizen.

Our conclusion on this point finds support in Roberts v. United States (1980) 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (Roberts ). In Roberts, the defendant contended that the sentencing court erred by considering his refusal to identify other members of the drug-dealing conspiracy of which he was convicted, claiming his refusal was justified Appellant correctly notes, however, the Roberts court's further holding that the sentencing court should consider and weigh, if raised, any issues related to a possible claim of self-incrimination or fear of retribution in possible mitigation of his refusal to cooperate. (Roberts, supra, 445 U.S. at pp. 559-560, 100 S.Ct. at pp. 1363-1364.) Appellant clearly did not and does not object to the subject condition on Fifth Amendment grounds. In any event, where such a claim is raised for the first time on appeal, it should be met with a large measure of skepticism, and deemed waived. ⁵ (Roberts, supra, at pp. 559-560, 100 S.Ct. at pp. 1363-1364.)

by legitimate fears of physical retaliation. Like appellant, the defendant in Roberts argued that his failure to cooperate was not relevant to the goals of sentencing. The United States Supreme Court rejected this argument, reasoning as follows: "[G]ross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship. [p] This deeply rooted social...