Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIJ118822, Robert J. McIntyre, Judge.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
C.N. (minor) challenges as unconstitutional two of 17 probation conditions imposed by the juvenile court after it found true an allegation that he had violated Penal Code section 288, subdivision (a). We will affirm the probation conditions as modified.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Sometime in the spring of 2009, minor, then 16, took some pornographic magazines to a “sleepover” at the house of a friend. When his friend went to take a shower, minor put his penis and testicles into the mouth of his friend’s younger brother (the victim), who had fallen asleep on a lower bunk in the friend’s bedroom.
An amended Welfare and Institutions Code section 602 petition filed July 14, 2010, alleged that minor had committed a violation of Penal Code section 288, subdivision (a), commission of a lewd and lascivious act upon a child under the age of 14. Following an extended contested jurisdictional hearing on August 4, 2010, the juvenile court found the allegation true and referred minor to the probation department for a disposition recommendation. In a memorandum filed on August 18, 2010, the department recommended that he be placed on probation in the custody of his parents with terms and conditions. Two of the conditions were that he “[n]ot possess sexually explicit materials” and that he “[h]ave no contact with any male or female under the age of 14 years, unless accompanied by an informed, responsible adult approved by the Probation Officer.”
DISCUSSION
Although minor did not challenge the conditions at the time they were imposed, he does so now on the basis that they are overbroad and vague. The parties agree, as do we, that the matter is properly before us despite minor’s failure to raise his objection below. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.); In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143 (Shaun R.).)
Standard of Review
Juvenile courts generally have broad, if not limitless, discretion in fashioning reasonable conditions for the reformation and rehabilitation of minors; and these conditions may be more restrictive than those imposed on adults for similar offenses. (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82, disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130; accord, Sheena K., supra, 40 Cal.4th at p. 889.) Although we generally review their decisions for abuse of discretion, where there is a constitutional challenge based on vagueness and overbreadth, the standard is de novo. (Shaun R., supra, 188 Cal.App.4th at p. 1143.) If we find a condition unconstitutional, we have the power to modify it. (Sheena K., at p. 892; In re Justin S. (2001) 93 Cal.App.4th 811, 816.)
Vagueness and Overbreadth
Although vagueness and overbreadth are related, they are not identical. The basis of a vagueness challenge is the due process concept of fair warning. (People v. Castenada (2000) 23 Cal.4th 743, 751.) “‘Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.’” (Ibid.)
The overbreadth doctrine requires that, “A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.) However, “[a] statute may not be found constitutionally invalid on overbreadth grounds simply because it is possible to conceive of one or a few impermissible applications.” (People v. Toledo (2001) 26 Cal.4th 221, 234-235.)
The “[h]ave no contact with any male or female under the age of 14 years...” condition:
The parties agree, as do we, that the condition that minor have no contact with persons under the age of 14 is vague in that it does not include a knowledge requirement and therefore requires modification. (Sheena K., supra, 40 Cal.4th at p. 890.)
Minor, who is concerned that he should have knowledge regarding actual “contact” as well as knowledge regarding the age of the persons in the prohibited category, suggests that the modification should be, “You are not to knowingly have contact with any male or female whom you know or reasonably should know to be under the age of 14 years....” The People believe that the modification should be, “not to have contact with any person that he ‘knows or reasonably should know to be under the age of 14.’” The People rely primarily upon People v. Turner (2007) 155 Cal.App.4th 1432 (Turner). The People state that an appellate court found no need to modify the word “‘associate’” to include a knowledge requirement. They further suggest that the word “‘contact’” is analogous to the word “‘associate.’” In response, minor points out that the two words have distinct meanings: “‘associate’” involves “direct, purposeful interaction with another person and is thus necessarily done ‘knowingly, ’” while mere “‘contact’” may be unwitting. Regarding the People’s Turner argument, we cannot see that the Turner court addressed this question at all. (Turner, at pp. 1436-1437.) And while we think minor may be straining at a linguistic gnat, so to speak, we see his point and will modify the probation condition to address this concern as well as the People’s concern that minor should be required to take steps to prevent such contact. The condition will therefore be modified to read: “Have no knowing contact or association with any person he knows or reasonably should know is under the age of 14 years unless he is accompanied by an informed, responsible adult approved by the probation officer.”
The “[n]ot possess sexually explicit materials” condition:
The parties agree that this condition is unconstitutionally vague and should be modified to include a knowledge requirement that provides a precise and objective standard by which minor can determine what kinds of materials to avoid. They also agree that including a reference to California Code of Regulations, title 15, section 3006, subdivision (c)(17)(A), which defines sexually explicit materials as “material that shows the frontal nudity of either gender, including the exposed female breast(s) and/or the genitalia of either gender” will cure the problem. We agree.
DISPOSITION
Minor’s probation conditions are modified as follows:
(1) The “[h]ave no contact with any male or female under the age of 14 years unless accompanied by an informed, responsible adult, approved by the Probation Officer” is changed to: “Have no knowing contact or association with any person he knows or reasonably should know is under the age of 14 years unless he is accompanied by an informed, responsible adult approved by the probation officer.”
(2) The “[n]ot possess sexually explicit materials” condition is changed to: “Not to knowingly possess sexually explicit material as defined by the California Code of Regulations, title 15, section 3006, subdivision (c)(1)(A).”
In all other respects, the judgment is affirmed.
We concur: RICHLI J., KING J.