Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36541.
RUSHING, P.J.
The juvenile court sustained a petition alleging that appellant I.C. possessed a knife on school grounds and committed a gang-related battery on another youth. On appeal appellant challenges four probation conditions as impermissibly vague, overbroad, or both. Respondent concedes that some modifications are in order. We will modify the conditions and affirm the order as so modified.
Background
The district attorney filed a petition alleging that appellant I.C. is a person within the jurisdiction of the juvenile court under Welfare and Institutions Code section 602, subdivision (a), in that he possessed a knife on school grounds in violation of Penal Code section 626.10, subdivision (a), and committed a battery in violation Penal Code sections 242 and 243, subdivision (a). It was further alleged that the battery was committed for the benefit of a criminal street gang, for purposes of the sentence enhancement set forth in Penal Code section 186.22, subdivision (d).
Appellant admitted the possession charge but contested the battery charge and gang allegations. The court found the battery charge and gang allegations true. The court then entered an order of probation containing numerous conditions including the four challenged on this appeal, which directed appellant (1) not to be on or near a school campus without approval; (2) not to use alcohol or illegal drugs and to submit to drug testing on demand; (3) not to be near a courthouse in which a gang-related case is going on; and (4) not to have contact with the victim of the battery.
Appellant’s attorney filed a timely notice of appeal.
Discussion
Condition 14
Condition 14 directs “[t]hat said minor not be on or adjacent to any school campus unless enrolled or with prior administrative approval.” Appellant contends that this condition infringes impermissibly on his rights to travel and to “loiter for innocent purposes” (City of Chicago v. Morales (1999) 527 U.S. 41, 53-54). It is defective, he asserts, in two respects: (1) it lacks a requirement of knowledge or scienter; and (2) the term “adjacent” renders it impermissibly vague.
Respondent agrees with the first objection and asserts that the condition should be modified to include a knowledge requirement. Respondent also acknowledges that restricting presence “adjacent” to a school campus may be “unconstitutionally vague.” Accordingly, respondent “do[es] not oppose modification, ” presumably to specify a distance.
We will modify condition 14 to read as follows: Do not enter or approach within 50 feet of any location you know is part of a school or school campus, unless you are enrolled there as a student or have obtained permission to be there from the school’s administration or your probation officer.
Condition 16
Condition 16 directs “[t]hat said minor not use, possess, or be under the influence of alcohol or any form of controlled or illegal substance without the legal right to do so and submit to drug and substance abuse testing as directed by the Probation Officer.”
Appellant contends that this condition is rendered infirm by the absence of a knowledge requirement. Respondent agrees.
We will modify Condition 16 to read as follows: Do not use, possess, or take into your body anything that you know is an alcoholic beverage, illegal drug, or controlled substance. Do not use, possess, or take any prescription drug except on a doctor’s orders. Submit to drug and substance abuse testing as directed by the Probation Officer.
Condition 29
Condition 29 directs “[t]hat said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves [sic] anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.”
Appellant contends that this language exhibits the vices we found fatal to a similar condition in In re E.O. (2010) 188 Cal.App.4th 1149 (E.O.). The remedy, he insists, is the one we adopted there: to strike the condition and remand to give the trial court an opportunity to reinstate a revised condition. Respondent agrees that the condition offends the principles applied in E.O., but contests the proposed remedy, contending that we should modify the condition ourselves and affirm the judgment with this and the other modifications we have directed.
The record here provides considerably more reason to impose the restriction in question than did the record in E.O. The probationer there was found to have engaged in two criminal acts. In a previous petition he was found to have painted gang-related graffiti on school property, and in the matter before the court he was found to have possessed a knife on school property. We adopted the disposition ordered in People v. Perez (2009) 176 Cal.App.4th 380, where the court remanded to permit the trial court to “ ‘impose a narrower condition if it deems necessary.’ ” (E.O., supra, 188 Cal.App.4th at p. 1157, quoting Perez, supra, at p. 386.) “As in Perez, ” we stated, “there was no evidence that appellant had ‘loitered on courthouse property, that he had threatened or would threaten witnesses, or that his presence in a courthouse would incite violence.’ ” (E.O., supra, 188 Cal.App.4th at p. 1157, quoting Perez, supra, at p. 384.)
Here, in contrast, appellant had not only carried a knife on school property but had also attacked another student while shouting epithets identifying the attack with the Norteño cluster of gangs. There was expert testimony that such identifying cries serve the purpose, among others, of notifying “potential witnesses” that “this attack was committed by the Norteño criminal street gang in the hopes of... dissuad[ing] them from... reporting the crime in the first place, and maybe down the road testifying against any members of the gang.” The expert testified more generally that such gangs commonly exercise the power they engender through fear to “dissuade witnesses from providing testimony and victims from reporting to the police or reluctance in testifying against gang members.” He opined that this would be one intended effect of the kind of battery appellant committed here. He further testified that the shirt worn by appellant on one day of trial was “a common shirt or apparel... that Norteños will wear... to help identify them to others.” That was the day on which the victim of the battery testified, and on which his companion on that occasion would have testified had he not failed, in defiance of a subpoena, to appear.
It thus appears that if appellant had not yet engaged consciously in gang-related witness intimidation, he had certainly engaged in conduct having that tendency. Given these facts we cannot reasonably doubt that if we struck the condition and remanded, the trial court would find sufficient grounds to impose a suitably tailored courthouse condition. This differs dramatically from the appellant in E.O., whose only gang-related conduct was painting graffiti. A remand here would be a waste of resources because the result is foreordained.
Accordingly we will modify condition 29 to state as follows: “You must not attend any gang-related case unless at least one of these things is true: (1) You are a party to the case; (2) You or a member of your immediate family is a victim of the activity charged in the case; (3) You are there to obey a subpoena, summons, court order, or other official order to attend; or (4) A party’s attorney has asked you to testify or to speak to the court. In all other cases, you must stay at least 50 feet away from the entrance to any courtroom where you know there is a gang-related case going on. A gang-related case is a court case that you know involves charges of gang-related activity, or other charges against a person you know or have been told by your probation officer is a member of a gang. You must not try to scare or otherwise cause anyone not to take part in a gang-related case. This includes a witness, victim, juror, or court worker. You must not try to get any witness in any court case not to testify. You must not try to get them to change their testimony.”
We have omitted the definition of a “criminal street gang” because such a definition is contained in another of the probation conditions imposed here.
Condition 32
Condition 32 directs “[t]hat said minor have no contact of any type with [B.S., the victim of the battery].” Appellant contends, first, that this language is defective for want of a knowledge requirement. To this extent respondent concedes that the condition may be properly modified to include such an element.
Appellant also finds fault, however, with the term “contact, ” which he contends is impermissibly vague and overbroad. His attorney writes: “Does ‘contact’ mean that [appellant and the victim] have a conversation? Does it mean that they are within a certain distance from each other? In the same class at school? To avoid being vague, the condition should clearly indicate what type of behavior [appellant] should avoid.”
We agree that the term “contact, ” as used in the present setting, covers a variety of behaviors. But we are not persuaded that this renders it constitutionally infirm. “Contact” means, most obviously, physical touching. It is not suggested that any constitutional interest is threatened by categorically prohibiting an assailant from touching his victim. All other pertinent meanings of “contact” would involve communication with a person. (See Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 249 [“contact” as “2... b: connection, communication c: an establishing of communication with someone...”].) One may “contact” another through a variety of media, but it is hardly necessary to catalog them all in order to adequately determine when “contact” has occurred. Merely being in a person’s vicinity is not a form of “contact, ” unless it is intended to convey a threat or other message. It thus appears that the hypothetical questions posed by appellate counsel have fairly clear answers, namely, Yes, No, and No.
It is possible that the conduct sought to be prohibited could be more sharply delineated, and since we are modifying the condition in any event we will attempt to do so. But appellant’s proposed alternative—“Do not knowingly associate with [victim’s name]”—is wholly inappropriate. To “associate” with someone is to form some kind of link with them, usually a social one. (See Merriam-Webster’s Collegiate Dict., supra, p. 70 [“associate” as “to come or be together as partners, friends, or companions”].) The court below was not concerned with the risk that appellant might attempt to befriend or socialize with the victim. It was manifestly seeking to prohibit all conduct that might constitute, lead to, or be experienced by the victim as harassment or intimidation.
We will direct that condition 32 be modified to read as follows: “Do not knowingly touch [victim]. Do not attempt to communicate with [victim]. Do not knowingly come within 50 feet of [victim] unless directed to do so by a law enforcement officer, probation officer, or school official.”
Disposition
The conditions of probation are modified as set forth above. As so modified, the order appealed from is affirmed.
WE CONCUR: PREMO, J.ELIA, J.