In the Interest of M.P., a minor (The People of the State of Illinois, Plaintiff-Appellee,
v.
M.P., a minor, Defendant-Appellant).
Appellate Court of Illinois, First District, Third Division.
*1154 Rita A. Fry, Public Defender of Cook County (Lindsay Huge, Assistant Public Defender, of counsel), Chicago, for Defendant-Appellant.
Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Kenneth T. McCurry, Eileen N. O'Neill, Assistant State's Attorneys, of counsel), Chicago, for Plaintiff-Appellee.
Justice BURKE delivered the opinion of the court:
Following a bench trial, the circuit court found defendant M.P., a minor, delinquent based upon the charge of criminal trespass to a vehicle. The trial court sentenced defendant to one year probation and 100 hours of community service, and ordered, as conditions of his probation, a TASC referral, Gang Intervention Program, mandatory schooling, a 7 p.m. curfew and defendant's "removal of his tatoos" pursuant to the Juvenile Court Act (705 ILCS 405/5 (West 1992)). On appeal, defendant contends that the trial court abused its discretion in ordering that, as one of the conditions of his probation, he remove tattoos on his arms which symbolized an alliance to a street gang. For the reasons set forth below, we reverse and remand.
On February 12, 1996, defendant, who was 16 years old, was stopped by Officer McDermott of the Chicago Police Department after he allegedly committed a traffic violation while operating a motor vehicle. When Officer McDermott ran the vehicle identification number, he discovered that the vehicle had been reported stolen. McDermott arrested defendant and brought him to the 14th District police station where defendant told McDermott that he rented the car from a person named "Fresh" for $70. Defendant was charged with possession of a stolen vehicle and criminal trespass to a vehicle. After a bench trial, the trial court found defendant delinquent based on criminal trespass to a vehicle. Defendant orally objected to the condition of the tattoo removal.
Prior to defendant's sentencing hearing, defendant's probation officer presented the court with a social investigation report regarding defendant. The report revealed that defendant had been a member of the Imperial Gangsters street gang for approximately five years. Defendant was very proud of his gang, within which he was considered the "enforcer." In fact, defendant was with his gang friends when he was arrested. The probation officer specifically noted that defendant had two tattoos, a pink panther with a crown on one upper arm and a bulldog with a crown on the other upper arm, which the officer described as "gang related." The probation officer felt that, considering defendant's "heavy gang involvement," defendant "probably had some idea that renting a car for $70 was not legitimate." The report also disclosed that, as a result of his gang involvement, defendant was shot in the leg in December 1995.
The report further stated that defendant attended school past the 9th grade until he was kicked out for gang fighting. While in school, defendant was enrolled in special education and behavioral disorder classes. Defendant stated that he liked school; however, he had numerous problems with teachers and other gangs in school. The probation officer believed that defendant had a lack of enthusiasm and interest in school, but noted that defendant appeared to be "extremely talented" in pursuing his interest in drawing. The report also stated that defendant told the probation officer that he had a good relationship with his mother and her boyfriend, with whom defendant was currently living, and that he often took care of various chores in the home. However, the probation officer noted that there appeared to be heavy gang activity throughout the neighborhood where defendant then resided. Defendant's mother reported that defendant had been complying with the 7 p.m. curfew imposed on him by the trial court at the inception of this case.
At defendant's sentencing hearing, the following colloquy occurred:
*1155 "THE COURT: What's one reason why you're here?
THE RESPONDENT: For the auto theft.
THE COURT: Well, that's the case, but what brings you here?
THE RESPONDENT: (No audible response.)
THE COURT: You don't even know, do you?
THE RESPONDENT: (No audible response.)
THE COURT: It's the gangs, right?
THE RESPONDENT: Yes, sir.
THE COURT: Right. And you're rather proud to be an Imperial Gangster, right?
THE RESPONDENT: (No audible response.)
THE COURT: See, you can't even answer it because you are, and the gangs are going to get you where?
THE RESPONDENT: Nowhere.
THE COURT: Oh, yes. This is going to be an absolute, complete waste of breath because you're so enraptured with the gangs. If you think it's just, great, well, when you are staring at some judge facing a murder charge or you're facing big time, then you make sure that you thank each and every gang member or when you get drilled with a bullet right in the head because you're an Imperial Gangster, then you can thank all your gang members with your last dying breath, okay?"
On June 13, 1996, defendant filed a motion to modify the May 22, 1996, probation order, arguing that "on information and belief, the only tattoo the minor has is an `M' on his leg which stands for Miguel," and that, because the Act does not authorize removal of a minor respondent's tattoos, the trial court should amend its May 22 order to exclude tattoo removal as a condition of defendant's probation. At a hearing on defendant's motion on August 14, 1996, defendant argued that the condition of tattoo removal was an intrusive and punitive procedure not warranted under the Act for a Class A misdemeanor of criminal trespass to a vehicle. The trial court ruled that if defendant's tattoos were in fact gang related, then it had authority to order defendant to remove them, and, on the same day, the court entered an order modifying its May 22 order "in that the minor shall only have any gang related tattoos removed." This appeal followed.
Defendant contends that the trial court's August 14, 1996, modified order (order), requiring that defendant remove any gang related tattoos, was an intrusive and illegal condition of probation not prescribed by the Act. Defendant first argues that because the removal of his tattoos did not have a nexus to the offense for which he was found guilty, it was error for the court to impose this condition.
The State contends that the condition was within the permissible scope of the Act because the Act allows for several intrusive procedures as conditions for probation. The State also argues that the condition was reasonable and within the discretion of the trial court because the court found a connection between defendant's delinquency and his gang involvement, and "the court was attempting to do everything in its power to give this minor an opportunity to be something more than a lifelong gangmember and criminal."
The purpose and policy of the Act "is to secure for each minor * * * such care and guidance, * * * as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community." In proceedings under the Act, "the court may * * * gather information bearing upon the current condition and future welfare of persons subject to" the Act. 705 ILCS 405/1-2 (West 1992). Section 5-23 of the Act sets forth various alternatives that are available to the trial court as to the disposition of a minor found delinquent under the Act, including probation and conditional discharge. 705 ILCS 405/5-23(1)(a)(1) (West 1992). When determining the appropriate disposition for a minor, the trial court may choose as it sees fit, among the various alternatives provided for in the Act; however, delinquency proceedings should be considered protective rather than punitive in nature. In re J.C.,
In determining whether a trial court's imposition of a probation condition was proper, a reviewing court considers whether the probation condition (whether explicitly statutory or not) is reasonable if the trial court believes the condition would be a good idea and the record contains no indication that the court's imposition of the condition is clearly unreasonable. People v. Ferrell,
The Act provides that the court may, as a condition of probation, require that the minor "refrain from having any contact, directly or indirectly, with certain specified persons or particular types of persons, including but not limited to members of street gangs and drug dealers or users." (Emphasis added.) 705 ILCS 405/5-24(2)(s) (West 1992). This court has held that, in adult probation cases, the trial court may impose a probation condition not expressly authorized by statute as long as such a condition (1) is reasonable, and (2) some connection exists between the condition and either (a) the underlying crime or (b) the behavior or attitude of the defendant that the trial court thinks needs adjusting. Ferrell,
Defendant relies on People v. Dunn,
In Dunn, the court held that the trial court erred in imposing the probation condition that the defendant get a haircut after the defendant was found guilty of failure to signal in violation of the Illinois Vehicle Code. Dunn,
In Wells, the trial court ordered as a condition of the defendant's probation after his burglary conviction that the defendant work or actively seek employment for no less than six hours a day. In affirming the trial court, the Wells court noted that it could not determine how the condition imposed related to the circumstances of the burglary offense because the record on appeal did not contain a transcript of the hearing in which the defendant pleaded guilty. Nonetheless, the Wells court held that "since the condition may also relate to the rehabilitation of the defendant," it was clearly proper. Wells,
In the present case, the State argues, relying on Wells, that even if removing defendant's tattoos does not directly relate to defendant's offense, it "surely" relates to the rehabilitation of defendant. The State further argues that permanently marking one's body with a gang symbol can, within the language of section 5-24(2)(s), clearly be considered both a direct and indirect indication of alliance to a gang. Accordingly, the State concludes that the tattoo removal condition was properly imposed under the Act.
We find that even a liberal interpretation of section 5-24(2)(s) does not provide direct authority for the trial court to mandate such an intrusive measure as ordering tattoo removal. In construing a statute, this court must ascertain and effectuate the legislature's intent by looking first to the statutory language itself. If the language is clear, the court must give it effect and should not look to extrinsic aids for construction. Ferrell,
Because tattoo removal was not expressly provided for as a condition of probation in the Act, we next determine whether the condition was reasonable. In Ferrell, where the defendant was found guilty of aggravated battery of her child and ordered not to engage in acts which were reasonably likely to cause her to become pregnant and to submit to blood testing every two months for the purpose of pregnancy detection as conditions of her probation, the court considered whether the conditions were reasonable and sufficiently related to the underlying crime. In the present case, even though the trial court may have found that some connection existed between the condition of tattoo removal and the underlying crime because defendant was with members of his gang when he committed the crime, or that there was a connection between defendant's commission of the crime and his "gang attitude," the resulting condition must nonetheless be reasonable when taking into account the individual defendant. While the record reflects that defendant was heavily involved in and proud of his gang, it also reflects that defendant had other interests and talents, such as drawing, and that defendant had been complying with his curfew order and "getting along" with his mother. Under these circumstances, a probation condition for a delinquency charge of criminal trespass to a vehicle ordering tattoo removal for this defendant was clearly an unreasonable, impermissible and completely unrelated imposition when viewed in light of the purpose of the Act to secure "care and guidance" that *1158 will serve the "emotional, mental, and physical welfare of the minor." 705 ILCS 405/1-2 (West 1992). It is difficult to imagine how tattoo removal would relate to rehabilitation of defendant as, for example, the condition of holding a job or actively seeking employment did in Wells.
This court has, in cases not cited by either defendant or the State, considered the issue of whether a trial court exceeded the scope of its authority when imposing conditions of probation, and has determined that the conditions in those cases were unreasonable. See e.g., People v. Meyer,
On the other hand, we recognize that this court held in Stocke that presenting a speech to driver's education students on the effects of driving too fast for conditions was a reasonable probation condition for the 18-year-old defendant found guilty of that offense. Stocke,
In the present case, unlike the record on appeal in Stocke which adequately reflected that the trial court carefully considered the defendant's ability to perform the condition, the record on appeal here is entirely devoid of information regarding the exact medical procedure that defendant would have to undergo to remove his tattoos. The record contains no evidence as to the pain, if any, involved in the tattoo removal procedure and the monetary costs of such a procedure. We observe, however, that courts in other jurisdictions have had the occasion to examine the consequences of tattoo removal. See e.g., People v. Page,
Furthermore, we find that the State's argument, that imposing a condition that would comply with the direct language of section 5-24(2)(s) which would require that defendant refrain from contact with gang members may be difficult because defendant was living in an area populated heavily by gangs, is without merit. The Act contains no provision stating that its express conditions can only be imposed when it would not be "difficult" to impose such conditions. It is undoubtedly difficult to enforce the condition provided in section 5-24(2)(s) in any given situation where it is ordered. Furthermore, we are not persuaded that the facts in this case offer a uniquely "difficult" situation in which enforcement of the condition would be exceptionally difficult. We therefore hold that the *1159 condition in this case was not a reasonable condition of probation within the scope of the Act. While the trial court is afforded a great deal of discretion in issuing conditions of probation, ordering tattoo removal was not a reasonable measure of rehabilitation for defendant in the present case, and was therefore an abuse of that discretion.
The State also maintains that defendant's argument, that the order was "intrusive," is without merit because the Act allows for several intrusive procedures as conditions for probation, one of which is section 5-24(2)(u), providing that a court may order a minor to provide samples of his or her blood or urine for tests to determine the presence of an illicit drug. 705 ILCS 405/5-24(2)(u) (West 1992). A court also may order a minor found delinquent of a sexual offense to undergo medical testing which may include an analysis of bodily fluids and an examination of the minor's person. 705 ILCS 405/5-23(9) (West 1992). The State further argues that reviewing courts have also approved of several "intrusive" conditions of probation which were not specifically provided for by statute, i.e., People v. Ferrell,
We also find the State's argument, that the condition of tattoo removal in the present case was reasonable because Illinois courts have even approved of the restriction of several different constitutional protections as conditions to probation, is unpersuasive under the facts of this case. In support of its argument, the State cites to People v. Eiland,
Likewise, the State notes that our supreme court in People v. Adams,
We first note that none of the cases cited by the State in support of the above argument dealt specifically with the disposition of a minor in contravention with the Act. As held by the court in In re J.C., delinquency dispositions are to be handled as protective rather than punitive in nature. Because the cases cited by the State were analyzed under the Unified Code of Corrections or other criminal statues besides the Act, they dealt with a different standard of reasonableness than does the case at bar. See People v. J.G.,
Defendant next argues that the order is unconstitutional because it is vague, overbroad and prohibitive of his rights to engage in "symbolic speech." Specifically, defendant argues that the order is vague because it does not indicate which, if any, tattoos should be removed. Defendant argues that the trial court neither established what type of tattoos would qualify as "gang related" tattoos nor did the court ever indicate that defendant's tattoos, if there were any, had any connection to the criminal trespass to a vehicle charge for which defendant was found delinquent. In asserting his "unconstitutionality" argument, defendant relies on City of Harvard v. Gaut,
First, while defendant argued in his motion to modify the trial court's May 22, 1996, order that the only tattoo he had was an "M" on his leg, the findings of the social investigation prove otherwise. Because the probation officer stated that defendant had two specifically located, gang related tattoos, defendant's argument that the order was vague because it did not indicate which tattoos should be removed is without merit. Moreover, other than these two gang related tattoos and the alleged "M" tattoo on defendant's leg, the record contains no further evidence of other tattoos. Second, defendant's conclusory assertion that the Gaut holding "shows" that the order in this case is unconstitutional, vague and overbroad is unsupported by reasoned argument. When an appellant seeks reversal, theories which are not pursued nor advanced with citation to relevant authority are deemed waived. People v. Wendt,
Lastly, we note that in People ex rel. Gallo v. Acuna,
This court does not find substantial merit in the State's reliance on Acuna, a California case having no precedential effect on this court. The issue in this case is the reasonableness of a condition of probation, which is reviewed under a different standard than the preliminary injunction at issue in Acuna. Moreover, in light of Morales, the State's reliance on the reasoning in Acuna as supportive of the reasonableness of the condition imposed in this case is inapposite. Although the Morales court did not specifically rule on the first amendment issues raised by the defendants in that case, the language and reasoning of the holding indicates that our courts are willing to afford persons "suspected" of criminal gang activity, at the very least, the "personal liberty" of walking the streets and associating with friends.
For the reasons stated, we reverse the trial court's August 14, 1996, order and remand this cause for further proceedings consistent with this order.
Reversed and remanded.
McNAMARA and WOLFSON, JJ., concur.