Kacy S., In re

• Decision Date: 14 December 1998
• Docket Number: No. C023170,C023170
• Citation: 80 Cal.Rptr.2d 432,68 Cal.App.4th 704
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 9117, 98 Daily Journal D.A.R. 12,715 In re KACY S. et al., Persons Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. KACY S. et al., Defendants and Appellants.

Page 432

80 Cal.Rptr.2d 432

68 Cal.App.4th 704, 98 Cal. Daily Op. Serv. 9117,

98 Daily Journal D.A.R. 12,715

In re KACY S. et al., Persons Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. KACY S. et al., Defendants and Appellants.

No. C023170.

Court of Appeal, Third District, California.

Dec. 14, 1998.

Review Denied March 17, 1999.

Deborah R. Schulte, Roseville, and Jolene Larimore, Carpinteria, under appointment by the Court of Appeal, for Defendants and Appellants.

Danial E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Harry Joseph Colombo, Supervising Deputy Attorney General, Shirley A. Nelson, Supervising Deputy Attorney General.

PUGLIA, Associate Justice. ^*

The minor, Daren S., admitted he was within the provisions of Welfare and Institutions Code section 602 in that he challenged a person in a public place to a fight. (Pen.Code, § 415, subd. (1).) The minor, Kacy S., the brother of Daren, admitted he was within the provisions of Welfare and Institutions Code section 602 in that, in a public place, he used offensive words which were inherently likely to provoke an immediate, violent reaction. (Pen.Code, § 415, subd. (3).) The minors were not removed from the physical custody of their parents but were placed on six months' probation on the conditions they each "submit to urine testing to determine the presence of alcohol and illegal drugs in [their] system[s] pursuant to section 729.3 of the Welfare and Institutions Code," that Daren "not associate with any persons not approved by his probation officer," and that Kacy "not associate with Jason [B.]."

The minors appeal, contending imposition of the urine testing condition was improper. Daren contends the condition requiring his probation officer's approval of his associates is overbroad and unreasonable. Other than modifying Daren's probation order to limit the application of the associational restriction only to Jason B., we shall affirm the judgment as to each minor.

After school hours on October 18, 1995, Tim Gallagher, a teacher at Quincy High School, observed an argument between Wyatt O. and Jason B. Gallagher told Daren, Kacy and Jason to leave the area. Rather than leave, Daren became involved in a physical altercation with Wyatt. When Gallagher attempted to break up the fight, Kacy stepped in front of him with arms outstretched, preventing him from intervening. Kacy was not involved in the physical altercation but continuously yelled profanities at teaching staff and students.

I

The minors contend the juvenile court abused its discretion in imposing a urine testing condition because neither their offenses nor their social histories suggest substance abuse. Moreover, they assert the condition violates their constitutional rights to privacy, protection from unreasonable searches and seizures, due process of law and equal protection. ¹ None of these claims has merit.

The authority to require urine testing as a condition of probation is conferred by Welfare and Institutions Code section 729.3 (hereafter § 729.3) which 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." ² (Italics added.) By providing that the court "may" require urine testing, section 729.3 commits the decision to order testing in a particular case to the juvenile court's discretion.

The minors contend that notwithstanding section 729.3, "the decision to impose urine testing in a case which does not involve use of drugs or alcohol, or in which the social history of the juvenile indicates no drug or alcohol use, constitutes an abuse of discretion." Our task is simply to construe, not amend, the statute. We may not, under the guise of construction, rewrite section 729.3 or, as the minors propose, ignore the plain meaning of its terms. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349, 45 Cal.Rptr.2d 279, 902 P.2d 297; San Miguel Consolidated Fire Protection Dist. v. Davis (1994) 25 Cal.App.4th 134, 157, 30 Cal.Rptr.2d 343.)

Even if, in derogation of the clear statutory language, we were to weigh the testing condition on the scale devised to evaluate the appropriateness of probation conditions imposed pursuant to subdivision (j) of Penal Code § 1203.1, the condition would have to be upheld. ³

"In [People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545], the 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; citation and internal quotations omitted; disapproved on other grounds, In re Sade C. (1996) 13 Cal.4th 952, 983, fn. 13, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

The urine testing condition is designed to detect the presence of substances whose use by minors is unlawful. (Cal. Const., art. XX, § 22 [alcohol]; Health & Saf.Code, § 11000 et seq. [drugs].) Thus, the testing "relates to conduct which is ... in itself criminal." (Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.) Moreover, in enacting section 729.3, the Legislature has found that "alcohol and drug abuse" are "precursors of serious criminality. ...." (Stats.1989, ch. 1117, § 1, subd. (a)(2); fn. 2, ante.) Thus, the testing is also "reasonably related to future criminality." (Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.) Because the testing condition relates to criminal conduct and is reasonably related to future criminality, its imposition is within the juvenile court's discretion even as measured by the Lent formulation. (Ibid.; Laylah K., supra, 229 Cal.App.3d at p. 1500, 281 Cal.Rptr. 6.)

The minors contend that, by authorizing testing where alcohol and drugs are not implicated in their offenses or social histories, section 729.3 unconstitutionally invades their privacy (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40, 26 Cal.Rptr.2d 834, 865 P.2d 633) and subjects them to unreasonable search and seizure (U.S. Const., 4th Amend; Cal. Const., art. I, § 13.)

The collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable; these intrusions are searches under the Fourth Amendment. (Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639, 660.) Whether a particular search and seizure is unreasonable "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." (Id. at p. 619, 109 S.Ct. at p. 1414, 103 L.Ed.2d at p. 661; citations and internal quotations omitted.) "On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order." (New Jersey v. T.L.O. (1985) 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720, 731-732.)

Although urine tests are not physically intrusive (Skinner, supra, 489 U.S. at p. 626, 109 S.Ct. at p. 1418, 103 L.Ed.2d at p. 665), collection of the samples under the direct observation of a monitor to ensure their integrity does implicate protected privacy interests. (Id. at p. 626, 109 S.Ct. at p. 1418, 103 L.Ed.2d at p. 666; contrast Hill, supra, 7 Cal.4th at p. 43, 26 Cal.Rptr.2d 834, 865 P.2d 633.) However, a probationer's expectations of privacy are diminished by his probation status and are subordinated to governmental activities which reasonably limit the right of privacy. (In re Tyrell J. (1994) 8 Cal.4th 68, 85, 32 Cal.Rptr.2d 33, 876 P.2d 519.)

The testing condition is a reasonable intrusion upon a probationer's expectations of privacy. (Skinner, supra, 489 U.S. at p. 628, 109 S.Ct. at p. 1419, 103 L.Ed.2d at p. 667.) The governmental interest in testing is strong. The juvenile court's goals are to protect the public and rehabilitate the minor. (Welf. & Inst.Code, § 202, subd. (a); Tyrell J., supra, 8 Cal.4th at p. 81, 32 Cal.Rptr.2d 33, 876 P.2d 519.) 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. (Stats.1989, ch. 1117, § 1, subds. (a)(2), (b); fn. 2, ante.) Although urine testing constitutes an intrusion on privacy, the effect of the intrusion is outweighed by the government's legitimate interest in closely monitoring the rehabilitation of minors who are granted probation and returned to the custody of their parents. (Skinner, supra, 489 U.S. at p. 617, 109 S.Ct. at p. 1413, 103 L.Ed.2d at pp. 659-660.)

The minors contend that, by allowing testing even where there is no previous involvement with alcohol and drugs, section 729.3 is arbitrary, capricious and thus violative of substantive due process.

As noted, section 729.3 is designed to detect conduct that is a precursor of criminal activity at the earliest possible time. (Stats.1989, ch. 1117, § 1, subds. (a)(2), (b); fn. 2, ante.) Early intervention has a "real and substantial relation to the object sought to be attained" (Nebbia v. New York (1934) 291 U.S. 502, 525, 54 S.Ct. 505, 510, 78 L.Ed. 940, 950), because "[t]he young offender who...