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In re D.O.

California Court of Appeals, First District, First Division
Jan 27, 2012
No. A130493 (Cal. Ct. App. Jan. 27, 2012)

Opinion


In re D.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.O., Defendant and Appellant. A130493 California Court of Appeals, First District, First Division January 27, 2012

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. J1001403

Banke, J.

Appellant D.O. pleaded no contest to possession of marijuana and possession of a loaded firearm in public. The juvenile court imposed numerous terms and conditions of probation, including that he have “[n]o gang associations, colors, clothing, insignias, signs, paraphernalia or activities.” He maintains this “gang” condition is not reasonably related to his crimes or future criminality and, even if permissible, is unconstitutionally vague and overbroad. We conclude D.O. has forfeited his first claim because he failed to object to imposition of the “gang” condition in the juvenile court. As for his second claim, the Attorney General concedes the “gang” condition as imposed is unconstitutionally vague and overbroad. We agree, and affirm as modified.

BACKGROUND

Given our disposition on procedural and constitutional facial grounds, we limit our discussion of the factual and procedural background accordingly. The probation report recounted the facts as follows: “[O]n September 29, 2010, at 11:46 pm, the minor was the front passenger in a vehicle that was stopped for vehicle code violations. The driver of the vehicle gave police permission to search the vehicle. The minor exited the vehicle and the officer told him that he was going to search him for weapons. The minor made a sudden movement to his waistband and the officer grabbed his arms. Upon a search of the minor, the officer located a loaded 9MM handgun in the minor’s waistband. The firearm was not registered to the minor. Police also located eleven individually wrapped baggies of marijuana in the minor’s front pants pocket. The minor was transported and booked into juvenile hall.”

The Contra Costa County District Attorney filed a petition alleging possession of a firearm (former Pen. Code, § 12101, subd. (a)(1)) and marijuana for sale. (Health & Saf. Code, § 11359.) The petition was subsequently amended to allege as counts 3 and 4, misdemeanor carrying of a loaded firearm in public (former Pen. Code, § 12031, subd. (a)(1) & (a)(2)(g)) and possession of more than 28.5 grams of marijuana. (Health & Saf. Code, § 11357, subd. (c).)

D.O. entered a plea of no contest to counts 3 and 4, and the court dismissed the remaining counts pursuant to a negotiated disposition. The court adjudged D.O. a ward of the court, committed him to a six-month program at the county juvenile rehabilitation center, and ordered “a 90-day conditional parole period.... [Probation to] calendar review within 90 days of his return home.” The court imposed numerous probation conditions, including that D.O. have “no gang associations, no known gang associations, colors, clothing, insignia, signs, paraphernalia or activities.” This timely appeal followed.

The written order is a pre-printed form with boxes to check before numerous probation terms and conditions; the “gang” condition does not include the word “known” to the defendant.

DISCUSSION

Imposition of “Gang” Condition

Welfare and Institutions Code section 730 “grants courts broad discretion in establishing conditions of probation in juvenile cases. [Citation.] ‘[T]he power of the juvenile court is even broader than that of a criminal court.’ [Citation.]” (In re Christopher M. (2005) 127 Cal.App.4th 684, 692.) “ ‘[J]uvenile [probation] conditions may be broader than those pertaining to adult offenders. This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed....’ Even conditions that infringe on constitutional rights may be valid if they are specifically tailored to fit the needs of the juvenile.” (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1142, quoting In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)

All further undesignated statutory references are to the Welfare and Institutions Code.

The juvenile court 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.” ’ ” (In re Byron B. (2004) 119 Cal.App.4th 1013, 1015, quoting § 730, subd. (b.)) “[P]robation conditions which regulate conduct ‘not itself criminal’ must be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ ” (People v. Welch (1993) 5 Cal.4th 228, 233-234 (Welch), quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).)

Superseded on another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-295.

D.O. contends there is no reasonable relationship between the “gang” condition imposed by the juvenile court and either his crimes or future criminality. He raised no such objection, however, in the juvenile court.

“[F]ailure to timely challenge a probation condition on ‘Bushman/Lent grounds in the trial court waives the claim on appeal.” (Welch, supra, 5 Cal.4th at p. 237.) “A Court of Appeal will review the reasonableness of a probation condition only if the probationer has questioned it in the trial court.” (People v. Barajas (2011) 198 Cal.App.4th 748, 753; see also In re Abdirahman S. (1997) 58 Cal.App.4th 963, 970 [forfeiture rule applies to juvenile defendants].) “[N]either party may initiate on appeal a claim that the trial court failed to make or articulate a ‘ “discretionary sentencing choice[].” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 881 (Sheena K.), quoting People v. Gonzalez (2003) 31 Cal.4th 745, 751.)

In re Bushman (1970) 1 Cal.3d 767 (Bushman), disapproved in part in Lent, supra, 15 Cal.3d at page 486, footnote 1.

“Applying the [forfeiture] rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a... probation condition that is premised upon the facts and circumstances of the individual case.” (Sheena K., supra, 40 Cal.4th at p. 885.) “A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis.” (Welch, supra, 5 Cal.4th at p. 235.)

“In contrast, an appellate claim—amounting to a ‘facial challenge’—that phrasing or language of a probation condition is unconstitutionally vague and overbroad because, for example, of the absence of a requirement of knowledge... does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law.” (Sheena K., supra, 40 Cal.4th at p. 885.)

Because D.O. made no objection to the juvenile court’s imposition of a “gang” condition, he has waived any reasonableness challenge on Lent grounds.

Overbreadth and Vagueness

As we have recited above, D.O.’s failure to object to the imposition of the “gang” condition in the juvenile court does not preclude his claim the condition, as imposed, is unconstitutionally vague and overbroad. The Attorney General concedes this point because the condition neither includes a knowledge requirement nor a definition of “gang.”

“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.” (Sheena K., supra, 40 Cal.4th at p. 890.) An “explicit knowledge requirement is necessary to render [a gang] condition constitutional.” (Id. at p. 892.)

Appellate courts have routinely modified “gang” conditions to include a knowledge requirement in order to pass constitutional muster. (See, e.g., In re Vincent G. (2008) 162 Cal.App.4th 238, 247 [probation condition modified directing the defendant “ ‘not to associate with any person whom you know, or whom the probation officer informs you, is a gang member’ ”]; In re Justin S. (2001) 93 Cal.App.4th 811, 816 [probation condition modified to forbid the minor’s association “ ‘with any person known to you to be a gang member’ ”]; People v. Lopez (1998) 66 Cal.App.4th 615, 638[probation condition modified to prohibit the defendant from associating “ ‘with any person known to defendant to be a gang member’ ”].) We will similarly modify the “gang” condition imposed in this case to render the condition constitutional.

D.O. also urges the gang condition is vague because it does not define “gang.” Acknowledging the holdings of In re Victor L. (2010) 182 Cal.App.4th 902, 914; In re H.C. (2009) 175 Cal.App.4th 1067, 1071-1072 and others, the Attorney General again concedes the point and that “[t]he gang term should be modified to include [the] following sentence: ‘A gang is a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f).’ ” We agree, and will also modify the condition to define “gang” by reference to section 186.22, subdivisions (e) and (f).

Penal Code section 186.22 provides in part: “As used in this chapter, ‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (f).)

DISPOSITION

The gang probation condition is modified to read: “The minor is prohibited from associating with any individual known by him to be a gang member, possessing or wearing any clothing, insignias, colors or paraphernalia known by him to be gang-related; and participating in any activity known by him to be gang-related. ‘Gang’ means a ‘criminal street gang’ as defined in Penal Code section 186.22, subdivisions (e) and (f).” As modified, the judgment is affirmed.

We concur: Margulies, Acting P. J. Dondero, J.


Summaries of

In re D.O.

California Court of Appeals, First District, First Division
Jan 27, 2012
No. A130493 (Cal. Ct. App. Jan. 27, 2012)
Case details for

In re D.O.

Case Details

Full title:In re D.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, First District, First Division

Date published: Jan 27, 2012

Citations

No. A130493 (Cal. Ct. App. Jan. 27, 2012)