Todd L., In re

• Decision Date: 09 December 1980
• Docket Number: Cr. 37012
• Citation: 113 Cal.App.3d 14,169 Cal.Rptr. 625
• Parties: In re TODD L., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. TODD L., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 625

169 Cal.Rptr. 625

113 Cal.App.3d 14

In re TODD L., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. TODD L., Defendant and Appellant.

Cr. 37012.

Court of Appeal, Second District, Division 5, California.

Dec. 9, 1980.

Hearing Denied Feb. 25, 1981.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Richard A. Curtis, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

The juvenile court found that appellant committed petty theft. (Pen.Code, §§ 484, 488.) Appellant was removed from the custody of his parents for six months for suitable placement, and various conditions of probation were imposed.

On the evening of July 25, 1979, Carla Ward placed her purse on her Moped parked in front of a library in Reseda. Appellant and two other boys came riding by on bicycles, and appellant grabbed her purse. Miss Ward caught hold of the slowest boy, Jerry, and told him, "You better tell your friend to come back with my purse." He yelled out, and appellant dropped the purse in the parking lot and continued riding away. She recovered the purse and her money, although a bottle of perfume, makeup and a makeup bag were ruined.

She traced appellant through the boy she had stopped. Appellant admitted to her, to the police, and to the probation officer after adjudication, that he took the purse. Appellant indicated that when he saw the purse he thought he could get away with taking it for the money but he got scared when the victim started yelling and caught Jerry.

Since the issues on appeal relate to the disposition, we state in some detail the facts shown by the probation officer's report. Appellant was 16 years old. Besides the instant offense, he had two other very recent arrests. The first was for possession of tuinal (Health & Saf. Code, § 11377, subd. (a).) A petition had been requested but the district attorney had rejected it. As to this arrest, appellant and his friend, Jerry P., were found wandering in the middle of the Reseda Boulevard almost being struck by traffic. Appellant was standing on what appeared to be a tuinal capsule and was stuttering, apparently under the influence of a drug. The second arrest, also drug related, was for violation of Penal Code section 222. ¹ A petition had been filed but not yet adjudicated and the probation officer had no details as to that offense.

Appellant's parents separated in 1977 and appellant was living with his father and two brothers. Appellant's father could not control him in the father's home. Appellant had not been attending school or working. He came and went as he pleased and smoked marijuana. The father suspected him of committing burglaries in the neighborhood or dealing in drugs. The father no longer wanted appellant in his home and felt appellant should be placed in a structured situation.

Appellant's mother was living with a boyfriend and the boyfriend's two sons, Jerry P. and Allen P., who were the two boys riding bikes with appellant at the time of this crime. The mother related that appellant has had a "lack of conscience" ever since he was a small child and had been unwilling to accept any discipline. Her boyfriend's attempt to discipline appellant had led to numerous conflicts. She could not control appellant and was adamant he should be placed in a structured situation.

Appellant was resentful that Jerry and Allen lived with appellant's mother. Under "Minor's Statement" the probation officer related that recently appellant had gone over to his mother's house, where he was not allowed, and had beat up Jerry, "who had used up some of the money that the minor had stolen from his 19 year old brother, Marvin, in order to buy pot. The minor was walking around with a broken glass bottle, near the house when the mother called the police and he was almost arrested on assault charges. The minor stated that he picked up the glass bottle because his mother's boyfriend tried to run over him with his truck."

The probation officer recommended suitable placement with several standard conditions of probation regarding alcohol, narcotics, and psychiatric or psychological testing. The trial court agreed, and added several other conditions.

Appellant does not contend that the order of suitable placement was improper, but argues that several of the conditions of probation are unreasonable in the circumstances of this case. The conditions of which he complains are:

"16. Minor not to own or have any dangerous or deadly weapon in his possession, nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person. Includes broken bottles.

"19. Not drink any alcoholic beverages. Not be present where any person is consuming alcoholic beverages or where there is an open container of alcoholic beverage.

"21. Not use or possess narcotics, other controlled substances, related paraphernalia or poisons, and stay away from places where users congregate.

"25. Minor to submit his person and property to search and seizure at any time of the day or night by any law enforcement officer with or without a warrant and (suitable placement) staff.

"26. Cooperate with Probation Officer in any plan for psychiatric, or psychological testing, counseling or treatment."

In criminal cases involving adults, it has long been the rule that 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. (People v. Dominguez, 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290; In re Bushman, 1 Cal.3d 767, 776-777, 83 Cal.Rptr. 375, 463 P.2d 727; People v. Lent, 15 Cal.3d 481, 486 & fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545.) Appellant cites two recent cases which suggest that a condition which theoretically satisfies the third requirement by deterring future criminality may nevertheless be invalid if it does not bear a reasonable relationship to the crime of which the defendant was convicted or if it is excessively severe in light of the seriousness of the crime committed. (People v. Keller, 76 Cal.App.3d 827, 838, 143 Cal.Rptr. 184; In re Martinez, 86 Cal.App.3d 577, 581-582, 150 Cal.Rptr. 366.) In Keller, the court struck down a "search" condition imposed upon a conviction of petty theft for stealing a 49-cent ballpoint pen, where there was no evidence the theft was in any way related to use of drugs, with which the defendant had experimented several years before the theft. In Martinez, the court struck down a search condition imposed upon a conviction of battery where the defendant had thrown a beer bottle.

Appellant focuses narrowly upon the theft of the purse in this case and argues that none of the above conditions of probation is valid, contending there is no evidence the theft was drug or alcohol related, appellant did not use a deadly weapon, appellant did not conceal the purse, and...