It's not that common for an opinion by the Court of Appeal to persuade me that my initial considered views on a subject are erroneous.
This one did.
The question is whether it's a legitimate probation condition for the court to tell Antonio Brandao, who has been convicted of felony possession of methamphetamine, that he's not permitted to have any contact with gang members.
Admittedly, Brandao wasn't a member of a gang, and none of his prior offenses were gang offense. But my strong sense upon beginning the opinion was the same as the trial court's. Sure, maybe he's not a member of a gang now, and maybe won't be in the future. But the dude's got a long rap sheet. I'm sure that letting him hang out with gangs in the future definitely won't help him rehabilitate. And may well hurt. Indeed, my sense in that regard is even stronger. If the guy hangs out with gang members, he's definitely going to reoffend. So a probation condition that stops him from doing what's assuredly harmful to him seems both reasonable and hence permissible.
But the Court of Appeal reversed.
As I was reading Justice Marquez's opinion, I consistently disagreed. That Brandao wasn't currently a gang member and that his current troubles didn't stem from that area wasn't dispositive for me. It seemed to me that what the trial court did was not only a "reasonable" thing, but was affirmatively good. Good for potential victims. Good for society. Good for Brandao.
Simply put, a guy with a long rap sheet and a problem with methamphetamines shouldn't be hanging out with members of a gang. How is it "unreasonable" to so conclude? As I, for one, assuredly do.
But then I got to this paragraph of the opinion. The third one from the end. And it changed my mind about the proper outcome of the case. Because it seems right to me:
"The People argue that a probation condition must be upheld if it has any possible beneficent effect, even when the condition lacks a reasonable connection to a criminal defendant's background or crimes, or the defendant's prospects as related to the defendant's background or crimes. We disagree. If the courts could forbid probationers from having contact with any person or entity that could conceivably tempt an individual to stray from the path of the straight and narrow, they could forbid probationers to watch violent television programs and movies; to play violent video games, which our Legislature has determined to have malign influences on minors (Civ. Code, §§ 1746-1746.5, held unconstitutional in Brown v. Entertainment Merchants Assn. (2011) 564 U.S. __, __ [131 S.Ct. 2729, 2732, 2742, 180 L.Ed.2d 708]); to read works ranging from comic books to classical literature that contain violent or antisocial themes (see id. at p. __ [131 S.Ct. at pp. 2736-2737]); or to eat foods to which some have ascribed crime-inducing effects (Covey, Temporary Insanity: The Strange Life and Times of the Perfect Defense (2011) 91 Boston U. L.Rev. 1597, 1601, fn. 18 [referring to the “junk-food overdose defense”]). Our guides must be People v. Lent, supra, 15 Cal.3d 481, and subdivision (j) of Penal Code section 1203.1, and we read them as stopping short of authorizing conditions to shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant‟s current or prior offenses or any factor suggesting a risk of future criminal conduct."
Yep. I guess that's right. I was wrong. It might well be good for Bandao to eat vegetables, watch PBS, and to step away from the XBox. But we're not allowed to make those judgments. Even if they're right. Including the judgment imposed by the trial court here.
There's a right to associate. There's a right to watch what you want to watch. For better or worse -- and I remained convinced that, for Bandao, it's worse -- individuals get to make bad decisions sometimes. As we sufficiently fear governmental overreaching, and value individual freedom, that we create rules that sometimes prevent us from ordering even those things which we're relatively certain would be good for other people.
Justice Marquez persuades me. Well done.
