Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36511
ELIA, J.Minor J. G. appeals from a judgment adjudging him to be a ward of the court and the dispositional orders in a proceeding under Welfare and Institutions Code section 602. (See §§ 725, subd. (b), 800, subd. (a).) He attacks gang probation conditions as unconstitutionally vague and overbroad on their face. We modify the challenged conditions and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
A. Procedural Background
A juvenile wardship petition was filed against J. G. on November 20, 2009. The court found true that the minor had committed robbery (Pen. Code, §§ 211-212.5) as alleged in count one. Minor admitted the gang enhancement allegation attached to count one (Pen. Code, § 186.22, subd. (b)(1)(C)), admitted carrying a concealed dirk or dagger as alleged in count two (Pen. Code, § 12020, subd. (a)(4)), and admitted resisting a peace officer as alleged in count four (Pen. Code, § 148, subd. (a)), which was added by amendment. Count three, which alleged a battery of a peace officer (Pen. Code, §§ 242-243, subd. (b)), was dismissed. The court found minor was a child described by section 602. Minor was adjudged a ward of the court.
Minor was returned to parental custody and placed under supervision of the probation officer. The gang probation conditions were imposed by the court, including the following four: "30. That said minor not knowingly participate in any gang activity and/or visit any areas of gang-related activity that are known to him unless he has prior permission from his Probation Officer;" "31. That said minor not knowingly possess, display, or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures which he knows to be gang-related;" "32. That said minor not obtain any new tattoos that he knows to be... gang-related;" and "33. That said minor not knowingly post, display, or transmit any symbols or information that the minor knows to be gang-related." Minor attacks these four gang conditions as unconstitutionally vague and overbroad.
The numbering of these probation conditions reflects the numbering of the probation conditions in the Order of Probation. The same probation conditions were contained in the probation report, and were incorporated in the court's disposition order, but they were numbered 24 through 27.
Minor did not object to any of the challenged gang conditions on the ground that they were unreasonable. "Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' Ibid. (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972))." (U.S. v. Knights (2001) 534 U.S. 112, 119 [122 S.Ct. 587]; see Griffin v. Wisconsin (1987) 483 U.S. 868, 873-875 [107 S.Ct. 3164] [probationers enjoy only conditional liberty properly dependent on observance of special probation restrictions and probation supervision "is a 'special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large"].) "The juvenile court has wide discretion to select appropriate conditions and may impose ' "any reasonable condition that is 'fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.' " ' [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
B. Challenged Probation Conditions
1. Applicable Law
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' (People v. Castenada (2000) 23 Cal.4th 743, 751....) The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' (ibid.), protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' (Ibid.)" (Ibid.)
In In re Sheena K., supra, 40 Cal.4th 875, the appellant claimed that the probation condition prohibiting her from associating with "anyone disapproved of by probation" was vague and overbroad. (Id. at pp. 878, 889.) The Supreme Court agreed that the probation condition was unconstitutionally vague "in the absence of an express requirement of knowledge." (Id. at p. 891.) The court approved the appellate court's modification of the condition "to require that defendant refrain from associating with anyone whom she knew was disapproved of by her probation officer." (Id. at pp. 880, 891.) This modification "secur[ed] the constitutional validity of the probation condition." (Id. at p. 892.) The court further stated: "In the interest of forestalling future claims identical to defendant's based upon the same language, we suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone 'known to be disapproved of' by a probation officer or other person having authority over the minor." (Ibid.)
In addition, "[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. [Citation.]" (Id. at p. 890.) "Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone... than if the boundaries of the forbidden areas were clearly marked.' " (Grayned v. City of Rockford (1972) 408 U.S. 104, 109 [92 S.Ct. 2294], fn. omitted.) On the other hand, "[c]ondemned to the use of words, we can never expect mathematical certainty from our language." (Id. at p. 110, fn. omitted.)
2. Gang Activity and Areas of Gang-Related Activity
As to the probation condition banning knowing participation in gang activity and visiting known areas of gang-related activity, minor complains that the phrases "gang activity" and "areas of gang-related activity" are impermissibly vague and the term "gang" is not defined. Minor concedes that the condition contains an explicit knowledge requirement. The People do not object to defining "gang" to mean a "criminal street gang" as statutorily defined (see Pen. Code, § 186.22, subd. (f)). Minor maintains that even if the condition is modified to define the term "gang, " it would "still fail[] to provide [him] adequate notice of what specific areas he may not visit." He points out that this court in In re H.C. (2009) 175 Cal.App.4th 1067, indicated it would be preferable for the juvenile court to identify particular geographic areas to be avoided. (Id. at p. 1072.)
In In re Victor L. (2010) 182 Cal.App.4th 902, a division of the First District Court of Appeal modified a similar probation condition "to provide for the probation officer to notify Victor of the areas he must avoid." (Id. at pp. 917-918.) The court concluded that such modification "makes the condition of probation both clear enough to avoid a vagueness challenge and narrow enough to escape a claim of overbreadth." (Id. at p. 918.) In this appeal, minor argues that the geographical approach would provide clearer boundaries.
In our view, the meaning of the term "gang" may be reasonably understood in context to mean "criminal street gang" since minor admitted a gang enhancement allegation (see In re Justin S. (2001) 93 Cal.App.4th 811, 816, fn. 3; People v. Lopez (1998) 66 Cal.App.4th 615, 631-632 ["when 'gang' is considered in the context in which it is found in condition No. 15, and with regard for the purpose of the provision..., it is apparent the word was intended to apply only to associations which have for their purpose the commission of crimes"]; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116-1117 [when considered in context, language may have "constitutionally sufficient concreteness"]). Nevertheless, we modify the challenged probation conditions to expressly refer to the statutory definition of a "criminal street gang" to eliminate any due process concerns. The phrase "gang activity" may reasonably be understood in context to encompass any activity conducted for the benefit of, at the direction of, or in association with a criminal street gang. (See People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1116-1117; Pen. Code, § 186.22.)
"A contextual application of otherwise unqualified legal language may supply the clue to a law's meaning, giving facially standardless language a constitutionally sufficient concreteness. Indeed, in evaluating challenges based on claims of vagueness, the court has said '[t]he particular context is all important.' (American Communications Assn. v. Douds (1950) 339 U.S. 382, 412 [70 S.Ct. 674, 691, 94 L.Ed. 925].)" (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th 1090, 1116-1117.)
With regard to the phrase "areas of gang-related activity, " the word "related" may be understood to have its ordinary and commonly understood meaning. (See Civ. Code, § 13; see also Code Civ. Proc., § 16.) The word "related" means "connected by reasons of an established or discoverable relation" (Webster's 9th New Collegiate Dict. (1990) p. 994) or "being connected, associated" (American Heritage College Dict. (3d ed. 1997) p. 1152). Thus, the broader phrase "gang-related activity" additionally includes any activity have some relationship to a gang, such as an informal social gathering of gang members, even if the activity was not conducted for the benefit of, at the direction of, or in association with the gang.
In light of the legitimate purpose of gang conditions to prevent minor's interaction with criminal street gangs, the phrase "areas of gang-related activity" may be reasonably understood in context as referring to those very specific sites where gang-related activity commonly occurs, such as, for example, a particular apartment or street corner or commercial establishment. Given the condition's implicit purpose, the phrase "areas of gang-related activity" understood in context does not reasonably include the entire territory claimed by a gang or the places where a gang crime has merely occurred in the past.
The probation condition is not vague or overbroad when it is modified to incorporate the statutory definition of "gang" and to clarify that "areas of gang-related activity" refers to the specific locations where gang-related activity commonly occurs. The explicit knowledge requirement protects minor from being held responsible for being in a place he does not realize is an area of gang-related activity. (See In re Sheena K., supra, 40 Cal.4th at pp. 891-892.) Because the particular location of gang-related activity may change over time and areas of gang-related activity are not necessarily static geographical places, the probation department may wish to identify and keep minor updated as to specific sites that are off-limits under this condition.
3. Gang-related Paraphernalia and Signs or Gestures
Minor argues that the probation condition prohibiting him from knowingly possessing, displaying, or wearing any insignia, clothing logos, emblems, badges, or buttons or displaying any gang signs or gestures which he knows to be gang-related is constitutionally flawed because it does define the terms "gang" and "gang-related." He further asserts that the term "gang-related" should be replaced by the phrase "that are evidence of affiliation with or membership in a gang, " citing In re Vincent G. (2008) 162 Cal.App.4th 238. The People have no objection to substitution of the language proposed by minor in this case.
In In re Vincent G., supra, 162 Cal.App.4th 238, the appellate court considered a probation condition that provided in part, "You are not to possess, wear or display any clothing or insignias, emblems, badges, or buttons which are evidence of affiliation with or membership in a gang...." (Id. at p. 245.) The minor argued that the probation condition was unconstitutionally vague and overbroad because it lacked an explicit knowledge requirement. (Ibid.) The appellate court modified the challenged provision to read, "You are not to possess, wear or display any clothing or insignias, emblems, badges, or buttons that you know, or that the probation officer informs you, are evidence of affiliation with or membership in a gang." (Id. at p. 247, italics added.)
As we have already indicated above, the probation conditions will be modified to explicitly define the word "gang" to mean "criminal street gang" as statutorily defined (Pen. Code, § 186.22, subd. (f)). We do not, however, discern a constitutional requirement to limit this probation condition to only items evidencing affiliation or membership in a gang. The probationary purpose of this anti-gang condition extends to items, signs or gestures that are gang-related, that is with special significance to a gang even if not indicating gang affiliation or membership. Moreover, our job as the reviewing court is not to completely rewrite probation conditions. The requirement that the prohibited items, signs, and gestures be "gang-related" sufficiently narrowed the condition's reach to avoid constitutional concerns.
Further, in our view, minor's concerns that the meaning of symbols or signs and gestures change over time and that he may be held responsible for "passive or inadvertent conduct" are best addressed by allowing the probation officer to inform minor of what is "gang-related" and by including clear and explicit personal knowledge requirements. (See In re Sheena K., supra, 40 Cal.4th at pp. 890-892.) The condition will be modified accordingly. Of course, if minor is unsure whether a particular item or sign or gesture has, or continues to have, gang significance, minor is free to consult his probation officer as the court's probation order indicates ("you are required to" "[c]onsult with the Probation Officer without hesitation when you are in need of further advice").
4. Gang-related Tattoos
Minor challenges the condition forbidding him from obtaining "any new tattoos that he knows to be gang-related." As with the preceding probation condition, minor argues that "gang-related" is not defined and the meaning of a tattoo may change. The short answer is that "gang" means "criminal street gang" as statutorily defined (Pen. Code, § 186.22, subd. (f)), a "gang-related" tattoo is reasonably understood as any tattoo with particular gang significance, and the explicit knowledge requirement renders it sufficiently precise to avoid vagueness concerns. (See In re Sheena K., supra, 40 Cal.4th at pp. 890-892.) As already stated, minor is free to consult his probation officer and he may ask for clarification whether a particular tattoo has, or continues to have, gang significance. As modified to incorporate the statutory definition of the term "gang" and reasonably construed, the probation condition is neither vague nor overbroad.
5. Gang-related Symbols or Information
Minor asserts that the probation condition forbidding him from knowingly posting, displaying, or transmitting any symbols or information that he knows are gang-related must be stricken in its entirety as both vague and overbroad. He complains, as he has with regard to other conditions, that "gang-related" is not defined. He next asserts that the probation condition's "language is so vague that it is impossible to determine where the boundaries of the proscribed conduct lie." He states that the probation condition targets speech ordinarily protected by the First Amendment yet it applies to "all forms of interpersonal communication without limitation" and is not "restricted to any particular medium." He suggests that, as written, the restriction prevents him "from discussing his knowledge of gangs or his past gang associations with his probation officer or his parents" and prevents him from participating in counseling aimed at avoiding future gang involvement. Minor maintains that the condition is not narrowly tailored as required to avoid being constitutionally infirm.
Respondent contends that this condition should be read to "prohibit communication for the purpose of supporting or furthering gang-related aims, not for educational or reformative reasons." Citing In re Victor L., supra, 182 Cal.App.4th 902, respondent urges us to limit the condition to the mediums of mobile communication devices and the Internet. Respondent suggests the condition be modified to require minor to not "knowingly post, display, or transmit any symbols or information by use of any mobile communications device or through the Internet that the minor knows to be gang related."
In In re Victor L., supra, 182 Cal.App.4th 902, the juvenile court adjudged minor a ward of the court after he admitted a misdemeanor weapons offense (Pen. Code, § 12020, subd. (a)) and placed him on probation. (Id. at pp. 908-909.) He admitted to the arresting officer that he was a gang member. (Id. at p. 908.) One of the probation conditions challenged on appeal banned "possession of a paging device or any other portable communication equipment, including but not limited to scanners, without express permission of the Probation Officer." (Id. at p. 919.) Citing case law, the appellate court stated that "cell phones and other wireless devices" are "recognized as tools of the trade for gang members and drug dealers and their customers." (Id. at p. 921.)
The appellate court in In re Victor L. upheld that probation condition prohibiting possession of mobile communication devices: "The complete ban on portable devices serves a legitimate purpose in juvenile probation in that it is easier for parents, school officials, and the probation department to detect and supervise a youth's communications if his or her access is limited to more conventional landlines, and to intervene when the use is improper. Due to the portability of wireless devices, and their popularity with young people as a means of communication, a complete ban was reasonably regarded by the juvenile court as a more effective means of deterring improper use." (Id. at pp. 921-922.) The court further observed: "While possession is relatively easy to detect and prove, proving how the minor used the phone would be more difficult. There is no reason to believe the probation department has the resources to retrieve cell phone records and scrutinize them line-by-line to detect potentially prohibited contacts." (Id. at p. 922.) In our view, In re Victor L. is inapposite to the probation condition at issue here, which says nothing about mobile communication devices.
Further, the general aim of the gang probation conditions is to prevent minor from associating with gang members or participating in gang activities and to help minor disengage from gang culture. For these purposes, the particular method of communication is irrelevant, although cell phone calls or Internet transmission may be the more usual than other forms of communication.
We first conclude that the language of the probation condition is not so vague as to require persons of ordinary intelligence to guess at its meaning. As we have already indicated, the probation conditions will be modified to make clear that "gang" means "criminal street gang, " as statutorily defined. (Pen. Code, § 186.22, subd. (f).) In light of the commonly understood meaning of the word "related, " "gang-related" symbols means any symbol with particular significance to a gang and "gang-related information" means any information about a gang or with particular gang significance. The condition is sufficiently precise as written for minor to know what is required of him, especially since it includes an explicit knowledge requirement.
We recognize that the words "post, " "display, " "transmit, " "symbols, " "information, " and "related" are broad terms and together give expansive meaning to this probation condition. Since the probation condition infringes upon the exercise of the constitutional right to free speech, it must be closely tailored to preserve its constitutionality. (See In re Sheena K., supra, 40 Cal.4th at p. 890.) But the probation condition targets only gang-related symbols and information, which generally confines the condition to its legitimate purposes and leaves minor otherwise free to exercise his constitutional right of expression. We recognize, however, that the probation condition may disallow the transmission of gang-related symbols or information even where such acts are for purposes consistent with probation. Therefore, to avoid any constitutional concerns that the condition is facially overbroad, we will modify this probation condition to except communication for such purposes as permitted by the probation officer. As modified, the ordinance is not unconstitutionally overbroad as unduly interfering with protected speech.
The United States Constitution generally protects freedom of speech, including symbolic or expressive conduct. (See U.S. Const., Amend. 1, Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 505, 511 [89 S.Ct. 733] [wearing of an armband to express viewpoint is symbolic act generally protected by First Amendment].)
Disposition
The challenged probation conditions are modified in both the disposition and order of probation as follows:
For purposes of the probation conditions, the term "gang" refers to a criminal street gang, as that phrase is defined by Penal Code section 186.22, subdivision (f).
That said minor not knowingly participate in any gang activity and not visit any specific location where he knows, or his Probation Officer informs him, gang-related activity commonly occurs unless minor has prior permission from his Probation Officer.
That said minor not possess, display, or wear any insignia, clothing, logos, emblems, badges, or buttons that he knows, or has been informed by his Probation Officer, are gang-related and not display any signs or gestures that he knows, or has been informed by his Probation Officer, are gang-related.
That said minor not obtain any new tattoos that he knows are gang-related.
That said minor not knowingly post, display, or transmit any symbols or information that minor knows to be gang-related unless he has prior permission from his Probation Officer to do so for purposes consistent with probation.
As modified, the judgment and dispositional orders are affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.