In re D.M., 2025 Cal. App. Unpub. LEXIS 5402 (Cal. Ct. App. 2025)

The 4th District Court of Appeal in California struck a weapons probation condition and modified an association condition and offered the following language in support.

“A term of probation is invalid if 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.’ 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.” (Lent, supra, 15 Cal.3d at p. 486.)

. . . .

[A]ppellant’s pushing of the victim did not involve a weapon; therefore, the weapons condition is not related to his offense, and there is no indication that prohibiting him from possessing or acting like he is possessing weapons is reasonably related to future criminality. . . . In view of the circumstances of appellant’s offense, the court’s findings, appellant’s lack of any criminal history or use of dangerous or deadly weapons, and his social history, we conclude the weapons condition lacks any reasonable nexus to future criminality; thus, there is no reasonable basis for sustaining it. (See Brandão, supra, 210 Cal. App. 4th at p. 574 and Todd L., supra, 113 Cal.App.3d at p. 20.)

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When a gang-related probation condition has no connection to the crime of which defendant was convicted, courts must decide whether the condition is reasonably related to a risk that defendant will reoffend. (Brandão, supra, 210 Cal.App.4th at p. 574.) Gang-related probation conditions are reasonably related to preventing future criminality when there is evidence of the defendant’s affiliation with criminal street gangs. (In re Edward B. (2017) 10 Cal.App.5th 1228, 1236 (Edward B.).). Again, appellant is only challenging the portion of the condition prohibiting him from associating with gang members. It is undisputed that nothing in the record suggests that he has ties to any criminal street gangs, that any of his family members have gang ties, or that his offense was gang related. (See Brandão, supra, 210 Cal.App.4th at p. 576.) Thus, the portion of the association condition prohibiting him from associating or communicating with gang members is not tailored to his future criminality. (Id. at pp. 576-577; Edward B, supra, 10 Cal.App.5th at p. 1236.) Since appellant is only challenging that portion of the association condition, we will only strike that part of the condition. (See Brandão, supra, 210 Cal.App.4th at pp. 577-578.) Therefore, “Do not associate or communicate with your co-participant and anyone you know who is on probation, parole, or a gang member” is amended to read, “Do not associate or communicate with your co-participant and anyone you know who is on probation or parole.”