Opinion
A151052
11-30-2017
In re O.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1500433)
16-year-old O.A. (appellant) appeals from the juvenile court's order placing him on probation for committing vandalism (Pen. Code, § 594, subd. (b)(1)). He contends: (1) the probation condition prohibiting him from knowingly associating with gang members and associates is unconstitutionally vague and overbroad and violates his constitutional rights to due process and freedom of association; and (2) the probation condition directing him to "[o]nly have 'peaceful contact' with his parents" is unconstitutionally vague. We shall modify the condition regarding peaceful contact, and affirm the order in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 2016, a juvenile wardship petition was filed alleging that appellant committed vandalism on November 21, 2015 (Pen. Code, § 594, subd. (b)(1)). According to the probation officer's report, appellant came home with a friend, in a stolen car, at about 1 p.m. that day. At about 6:40 p.m., the friend's parents arrived at the house, looking for their son. Shortly thereafter, appellant and his parents got into an argument and appellant became upset because he felt his parents were badmouthing his friend. The argument went on for about 15 minutes, during which appellant became "very angry," called his mother a "snitch," and threatened to hit her. He then went to his room and grabbed a bottle and left the home, slamming the door behind him.
A few moments later, appellant's father (Father) heard the sound of breaking glass. He went outside and saw that his car window had been broken, and saw appellant walking away. Father said that appellant was having "drugs and alcohol problems," was "completely out [of] control," and was "deeply involved with Sureno gang members." Appellant was "constantly wearing the color blue and he gets upset when his younger siblings wear the color red." He wrote the number 13 on notebooks in his room, had a lot of friends who were Sureno gang members, and did not attend school for two weeks "because the opposite gang members ha[d] threatened to kill [him]." Father said he "does not know what to do [with his son]" and feels appellant would benefit from the structure and services offered at a boys' ranch.
An El Cerrito police officer who responded to the neighborhood located appellant, arrested him, and took him to the police station. Appellant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and admitted he was upset with his parents, grabbed a bottle of whiskey he had consumed the previous day, and threw it at his father's car.
The juvenile court sustained the petition after a contested jurisdictional hearing. The court declared appellant a ward of the court and placed him on probation with 90 days of home supervision. As conditions of probation, the court ordered, among other things, that appellant "shall not knowingly associate with anyone known to the minor to be a gang member or associated with a gang, or anyone who the DPO [Deputy Probation Officer] informs the minor to be a gang member or associated with a gang." The court also ordered appellant to write a letter of apology to his parents and to "[o]nly have peaceful contact with his parents."
DISCUSSION
Gang Probation Condition
Appellant contends the probation condition prohibiting him from knowingly associating with gang members and associates is unconstitutionally vague and overbroad and violates his constitutional rights to due process and freedom of association. Assuming he did not forfeit the issue by not objecting to the condition on those grounds below, we conclude his contention fails on the merits.
A juvenile court may impose on a probationer "any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (Welf. & Inst. Code, § 730, subd. (b).) "A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile." (In re Josh W. (1997) 55 Cal.App.4th 1, 5; see also In re Antonio R. (2000) 78 Cal.App.4th 937, 941 [constitutional rights of juveniles are more circumscribed than those of adults because juveniles are deemed in need of more guidance and supervision].)
"A probation condition . . . may be challenged as unconstitutionally vague or overbroad. [Citation.] . . . A restriction is unconstitutionally vague if it is not ' "sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." ' [Citation.] A restriction failing this test does not give adequate notice—"fair warning"—of the conduct proscribed. [Citations.] A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Constitutional challenges to a probation condition are reviewed de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
We conclude the challenged condition is plainly worded and adequately detailed to inform appellant what is expected of him. The juvenile court defined the terms "gang" and "gang-related" at the time it imposed the condition, stating, " 'gang' and 'gang-related' means a criminal street gang, as defined in Penal Code Section 186.22, Subdivision F." As to the portion of the condition referring to those "associated with a gang," we note that the term "gang associate" has been defined as a person who "participated and assisted the gang in its criminal activities, although he is not a member of the gang." (People v. Hall (1998) 67 Cal.App.4th 128, 133; see also Pen. Code, § 186.22, subd. (a) [criminalizing the act of "actively participat[ing]" in a gang regardless of actual membership in the gang]; In re Cabrera (2012) 55 Cal.4th 683, 686 [status as a gang "associate" requires "at least three 'independent source items of documentation indicative of association' "].) Because the term gang "associate" is reasonably understood to be based on active participation in a gang, as opposed to tangential behavior or attenuated connections, "the scope of the condition is readily ascertainable" (In re Oswaldo R. (2017) 11 Cal.App.5th 409, 416) and provides appellant with sufficient notice of the prohibited conduct. To the extent appellant is concerned about the "risk of inadvertently violating the probation condition," we note that the condition contains an express knowledge requirement on appellant's part.
In addition, we are not persuaded by appellant's argument that the condition violates his right to freedom of association. Association with gang members or associates does not command constitutional protection under the First Amendment. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1110-1111.) " '[R]estriction of the right of association is part of the nature of the criminal process.' [Citation.] Thus, 'freedom of association may be restricted if reasonably necessary to accomplish the essential needs of the state.' [Citation.]" (People v. Peck (1996) 52 Cal.App.4th 351, 363.) The challenged condition, which limits the appellant from associating with a limited number of individuals known to him as gang members or associates, is reasonably related to his rehabilitation and prevention of future criminality, and does not violate his constitutional rights. (See, e.g., In re Byron B. (2004) 119 Cal.App.4th 1013, 1018 [upholding a probation condition prohibiting the minor from associating with any individuals "disapproved of by his probation officer"]; In re Frank V. (1991) 233 Cal.App.3d 1232, 1243 [approving a probation condition prohibiting the minor from associating with anyone disapproved of by his parents and probation officer].)
Peaceful Contact
Appellant contends that the probation condition directing him to only have peaceful contact with his parents is unconstitutionally vague. As the Attorney General (respondent) notes, however, the term "peaceful contact" has a readily apparent legal meaning and has, not uncommonly, been included in probation orders. (See Welf. & Inst. Code, § 213.5, subd. (b) [authorizing the court to issue a protective order "enjoining the child from contacting, threatening, stalking, or disturbing the peace of any person the court finds to be at risk from the conduct of the child, or with whom association would be detrimental to the child"]; In re Bushman (1970) 1 Cal.3d 767, 773 ["The terms 'disturb the peace' and 'breach of the peace,' which are substantially synonymous, have long been understood to mean disruption of public order by acts that are themselves violent or that tend to incite others to violence. Thus, one may be guilty of disturbing the peace [under Penal Code, section 415] if he engages in 'tumultuous' conduct, i.e., violent conduct that willfully and maliciously endangers public safety or order. He may also be guilty of disturbing the peace through 'offensive' conduct if by his actions he willfully and maliciously incites others to violence or engages in conduct likely to incite others to violence"], disapproved on other grounds by People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.)
People v. Seymour (2015) 239 Cal.App.4th 1418, 1426, People v. McPheeters (2013) 218 Cal.App.4th 124, 129, and In re Jacklyn F. (2003) 114 Cal.App.4th 747, 750, are examples of cases that reference "peaceful contact" probation conditions, although they do not address the constitutionality of such conditions.
Penal Code, sections 415 and 415.5 relating to the offense of "disturbing the peace" contain the following elements: (1) unlawfully fighting, (2) maliciously and willfully disturbing another person with loud or unreasonable noise, or (3) using offensive words which are inherently likely to provoke an immediate violent reaction.
At the same time, however, respondent appears amenable to modifying this condition in order to avert any possible confusion or ambiguity by "incorporating examples of prohibited conduct listed in Welfare and Institutions Code section 213.5, subdivision (b) e.g., annoying, molesting, attacking, striking, stalking, threatening, battering or harassing." We accept the proposal and hereby modify the peaceful contact condition to read that appellant must "have only peaceful contact with his parents by refraining from molesting, attacking, striking, stalking, threatening, battering, harassing, or destroying the personal property of his parents."
DISPOSITION
The juvenile court's order requiring appellant, as a condition of probation, to "[o]nly have peaceful contact with his parents" is modified to state that he shall "have only peaceful contact with his parents by refraining from molesting, attacking, striking, stalking, threatening, battering, harassing, or destroying the personal property of his parents." In all other respects, the order is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.