Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. J2044, Carol Ash, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
INTRODUCTION
Appellant Jesse L. was adjudged a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 after the court found true the allegations that he committed three felonies. He was committed to a counseling program upon specific terms and conditions. Appellant challenges the constitutional validity of a condition which prohibited him from associating with gang members, and contends that condition is vague and overbroad. We will modify the condition and otherwise affirm.
FACTS
Around 4:00 a.m. on August 12, 2007, Maria Gomez was asleep in her apartment in Los Banos when she was awakened by someone screaming and banging at her front door. She got up and saw that someone was actually moving the door handle from the outside. She heard a male voice screaming, “‘I’m going kill you, Bitch.’” Gomez was frightened and called the police.
Officer Rudy Alvara of the Los Banos Police Department had responded to the apartment complex earlier that night because a group of people had been arguing in the parking lot. He responded to Gomez’s call and assumed it involved the same situation, and found the same group in the parking lot. Officer Ulrich also responded to Gomez’s call and shared the same assumption about the disturbance. Officer Alvara assured Officer Ulrich that he contacted the subjects in the parking lot and did not need any assistance.
Officer Ulrich started to leave the apartment complex when he heard a male voice yelling, “‘I’ll kill you’” and “‘Kill me.’” Ulrich went toward the voice and found appellant standing around the corner from Gomez’s apartment and brandishing a large knife. Officer Ulrich drew his firearm and ordered appellant to drop the knife. Appellant replied, “‘Kill me or I’ll kill you.’” Ulrich repeatedly ordered appellant to drop the knife, appellant refused, and he told Ulrich to “‘[s]hoot me, kill me.’” Ulrich believed appellant was intoxicated.
Officers Alvara and Smith arrived at Officer Ulrich’s location and found appellant holding the knife in an aggressive position. They repeatedly ordered appellant to drop the knife, and appellant said, “‘Fucking shoot me and kill me.’” Appellant was extremely upset and cursing at them. Alvara used his Taser on appellant, and he dropped his knife and fell down.
Appellant was taken into custody and repeatedly said he wanted to kill himself and die. Appellant said a friend killed himself a few months earlier, and appellant wanted to do the same. Appellant also said his father had committed suicide. Appellant had the strong odor of alcohol, his speech was extremely slurred, and his eyes were bloodshot and watery. Appellant refused to identify himself or cooperate in any way. Appellant was taken to the hospital for removal of the Taser probe.
The officers inspected Gomez’s front door and found a boot print and minor damage to the door. The screen door was bent and appeared to have been kicked, damaged, and forced open.
Procedural History
On August 14, 2007, a juvenile petition was filed in the Superior Court of Merced County alleging that appellant (born 1990), committed the following felony offenses: count I, obstructing or resisting an executive officer (Pen. Code, § 69); count II, attempted burglary (§§ 664/459); count III, criminal threats (§ 422); and count IV, possession of a deadly weapon, a knife (§ 12020). It was further alleged in count V that he committed a misdemeanor violation of probation.
All further statutory citations are to the Penal Code unless otherwise indicated.
On September 11, 2007, the court conducted a contested hearing and found counts I, II, III and V to be true, and count IV not true, and adjudged appellant a ward of the court with a maximum term of confinement of six years seven months.
Probation Report
According to the probation report, appellant had been adjudged a ward of the court in October 2004 in Kern County, for felony assault with a deadly weapon. He continued to commit offenses and was placed in a group home and ran away. He was arrested on a bench warrant and placed in Stockdale Boys Home. He was in the 12th grade and had “Ds,” “Fs” and incomplete grades.
Appellant’s father was diagnosed with bipolar disorder and committed suicide in 1991. Appellant lived with his mother and her boyfriend. Appellant’s mother had a criminal history in Oregon for possession of a controlled substance, negotiating a bad check, failure to appear, and theft. His mother had been diagnosed with serious mental health issues and had been clean from drugs for six months.
Appellant admitted that he used marijuana, methamphetamine, cocaine, alcohol, and cigarettes. He starting smoking marijuana and cigarettes when he was a child. He also admitted harvesting and selling marijuana. He consumed alcohol until his arrest in this case. He was previously enrolled in substance abuse counseling but never completed any program. Appellant denied any gang involvement but admitted alcohol and substance abuse problems were issues for him.
Appellant said the incident which led to his arrest was a mistake. He was at a party, he got “really drunk,” he did not remember what happened, and he was sure that he was not trying to break into the apartment. His mother said that she “hate[d]” what he did, but he was just trying to get home and was “really, really drunk.”
Appellant had been evaluated by a mental health therapist and diagnosed with bipolar disorder, attention deficit hyperactivity disorder, conduct disorder, obsessive compulsive disorder, and anxiety. In May 2005, he placed a .45-caliber weapon to his head while under the influence of alcohol. In May 2007, he used a razor blade to cut his wrist and he took his mother’s sleep medication. He had been previously prescribed medication for these issues.
The probation report concluded that appellant needed supervision to ensure his completion of community service and various court-ordered programs, including anger management, substance abuse, and mental health counseling, as well as consequences for his uncontrollable behavior. The report acknowledged that he suffered from mental health disorders and failed to fight his drug and alcohol addictions, and recommended a commitment so he could receive the necessary counseling services and supervision.
The probation report recommended numerous terms and conditions of probation, including No. 20:
“Have no contact of any type with individuals known to you to be wards, probationers, or drug users or sellers, felons, ex-felons, or minors on Deferred Entry of Judgment ... during the period of wardship except with the Probation Officer’s permission.” (Italics added.)
The terms and conditions also included No. 41:
“Do not wear or possess any item of gang clothing known to be such by you including gang insignia, moniker, or pattern, jewelry with gang significance nor may you display any gang insignia, marker or other markings of gang significance known to be such on your person or property as may be identified by Law Enforcement or Probation Officer. You will not display any gang signs or gestures. Do not associate with any person(s) known to [sic] as being gang member(s), as previously ordered.” (Underscoring in original, italics added.)
Dispositional Hearing
On September 25, 2007, the court conducted the dispositional hearing, and placed appellant under the general supervision of probation. The court asked appellant’s attorney if she went over the probation report and recommendations with him, and she said yes. The court asked appellant if he understood everything in the report, and he said yes. The court imposed all the terms and conditions recommended in the probation report, including Nos. 20 and 41, “and since you went over those and understand them, I’m not going to read through all of them again but I’m ordering each term and condition.” The court also committed appellant to the short-term program at Bear Creek Academy.
On September 25, 2007, appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the court abused its discretion when it imposed condition No. 41 because there was no evidence that he was involved in any gang activities and the condition fails to define the meaning of “gang.” He also challenges condition No. 41 as being unconstitutionally vague and overbroad, and violating his right to free association.
Appellant did not object to the probation condition but constitutional challenges which involve pure questions of law may be raised on appeal in the absence of an objection. (In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).) We further note that appellant has raised ineffective assistance as an alternate basis to raise his discretionary challenges to the probation condition, and we will address his appellate contentions herein.
“Broadly the purpose of the juvenile court law is to provide for the protection and safety of the public as well as of the minor. [Citations.]” (In re Binh L. (1992) 5 Cal.App.4th 194, 204 (Binh L.).) “It has been suggested that cases which fix the statutory boundaries of adult probation provisions are pertinent as well to juvenile probation orders [citations], and thus that ‘[a] probation condition “will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ....’” [Citation.]’ [Citations.] Indeed, the power of the juvenile court is even broader than that of a criminal court: ‘Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation. “A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.” [Citation.] “[I]n planning the conditions of appellant’s supervision, the juvenile court must consider not only the circumstances of the crime but also the minor’s entire social history. [Citations.]” [Citation.]’ [Citations.] ‘Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation].’ [Citations.] But every juvenile probation condition must be made to fit the circumstances and the minor.” (Binh L., supra, 5 Cal.App.4th at p. 203, italics in original.)
“In view of the unique role of the juvenile court in caring for the minor’s well-being, it must consider ‘not only the circumstances of the crime but also the minor’s entire social history’ in fashioning conditions of probation. [Citation.]” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500 (Laylah K.), disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2.) In In re Todd L. (1980) 113 Cal.App.3d 14, a condition forbidding the minor to consume alcoholic beverages or to be present where another person is consuming alcohol was upheld even though the minor had not committed an alcohol-related offense, because “the court could reasonably infer that a juvenile experimenting with drug abuse might also engage in alcohol abuse.” (Id. at p. 20.)
“This court has previously held that probation conditions designed to curb dangerous associations with gangs were not unreasonable. (In re Michael D. (1989) 214 Cal.App.3d 1610, 1617.) While Michael D. had admitted gang affiliations, we see no logical or beneficial reason to require a court to wait until a minor has become entrenched with a gang, only then to apply mere prophylactic remedies. [¶] Conditions of probation requiring a probationer not to associate with anyone who possesses a criminal record have been upheld as ‘reasonably related to avoidance of future criminality.’ (People v. Robinson (1988) 199 Cal.App.3d 816, 818.) And a court may certainly order a probationer to refrain from criminal activity of any sort.” (Laylah K., supra, 229 Cal.App.3d at p. 1501.)
Appellant contends the court abused its discretion when it imposed the gang-related condition because there is no evidence that he was involved in any gang activities. While appellant denied any gang involvement, he admitted his regular and extensive abuse of controlled substances, including marijuana, methamphetamine, and cocaine, and his failure to complete any type of treatment program. He also admitted that he harvested and sold marijuana. The gang-related condition was clearly relevant to the instant case given appellant’s extensive involvement with drugs, and it was reasonably related to avoid future criminality.
Appellant next contends the condition’s use of the word “gang” is vague and uncertain in its meaning. In People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez) and In re Vincent G. (2008) 162 Cal.App.4th 238, the courts therein solved identical vagueness challenges by incorporating the definition of a criminal street gang as set forth in section 186.22, subdivisions (e) and (f), into the probation condition. (Lopez, supra, 66 Cal.App.4th at pp. 631-634; In re Vincent G., supra, 162 Cal.App.4th at pp. 246, 247-248.) In order to clarify the probation condition at issue in this case, we similarly incorporate the statutory definition of “gang” as set forth in section 186.22, subdivisions (e) and (f).
Appellant’s primary challenge is that condition No. 41 is unconstitutional because it is vague and overbroad, violates his right to free association, and violates his right to wear whatever clothing he desires. “A probation condition is constitutionally overbroad when it substantially limits a person's rights and those limitations are not closely tailored to the purpose of the condition. [Citation.]” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) “[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation ....’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) Similarly, “[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.]” (Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.]” (Ibid.)
In In re Justin S. (2001) 93 Cal.App.4th 811, the court held that a probation condition which prohibited a minor’s association with “‘any gang members,’” without a knowledge requirement, was unconstitutionally overbroad. (Id. at pp. 813, 816.) The court modified the condition to preclude the minor from associating with persons “known to the probationer to be associated with a gang.” (Id. at p. 816, italics added.)
In People v. Garcia (1993) 19 Cal.App.4th 97, the court held that a probation condition requiring the defendant to refrain from associating with users and sellers of narcotics, and felons or ex-felons, was constitutionally overbroad in failing to recognize that the defendant may, inadvertently, socialize with individuals who, unknown to him, fall within such categories. (Id. at p. 102.) The court found that impliedly inferring the knowledge requirement within the condition was incompatible with constitutional goals: “[T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.” (Ibid.) “A condition of probation that prohibits appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics, is ‘“overbroad [and therefore] is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.”’ [Citation.]” (Ibid.) The court thus modified the condition to expressly prohibit the defendant from associating with persons “he knows to be users or sellers of narcotics, felons or ex-felons.” (Id. at p. 103, italics added.)
In Lopez, the defendant’s probationary term barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing gang clothing. (Lopez, supra, 66 Cal.App.4th p. 622.) The court found the term vague and overbroad because it failed to put the defendant on proper notice as to whom he was prohibited from associating, what he could wear, and what activities he might lawfully engage in. (Id. at pp. 628-631.) The court found that implying a knowledge requirement was insufficient to overcome the constitutional infirmities: “Without at least the insertion in this aspect of the condition of a knowledge element, [the defendant] was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise Lopez of the ‘identified’ items of gang dress before he was charged with a violation.” (Id. at p. 634.) The court modified the condition accordingly:
“‘Defendant is not to be involved in or associate with any person known to defendant to be a gang member. He may not wear or possess any item of gang clothing known to be such by defendant including any gang insignia, moniker or pattern, jewelry with gang significance nor may he display any gang insignia, moniker or other markings of gang significance known to be such by defendant on his person or property as may be identified by law enforcement or the probation officer, except that he shall not be required to remove the tattoos on his body that existed at the time of sentencing. For purposes of this paragraph, the word ‘gang’ means a ‘criminal street gang’ as defined in Penal Code section 186.22, subdivisions (e) and (f).’” (Lopez, supra, 66 Cal.App.4th at p. 638, italics added.)
With these modifications, the court found the defendant’s probationary terms passed constitutional muster. (Ibid.)
In Sheena K., the California Supreme Court held a probation condition that required the defendant not to associate with anyone disapproved by her probation officer was unconstitutionally vague “in the absence of an express requirement of knowledge.” (Sheena K., supra, 40 Cal.4th at p. 891.) The court held the condition itself did not notify the defendant in advance with whom she was prohibited from associating nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) The court recognized that it had previously approved of reading an implied requirement of knowledge into a similar probation condition, but rejected doing so in the case before it:
“… 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.” (Sheena K., supra, 40 Cal.4th at p. 892, italics added.)
Sheena K. held that while the minor had failed to object to the language before the trial court, she had not forfeited the issue because it raised “a pure question of law, easily remediable on appeal by modification of the condition. [Citations.]” (Sheena K., supra, 40 Cal.4th at p. 888.) Sheena K. thus approved of the appellate court’s decision to modify the minor’s probationary conditions to include an explicit requirement of knowledge. (Id. at pp. 879, 892.)
Thus, a probationary term must explicitly require knowledge on the part of the probationer that he or she is in violation of that term in order for it to withstand constitutional scrutiny. In the instant case, condition No. 20 contains such an express requirement:
“Have no contact of any type with individuals known to you to be wards, probationers, or drug users or sellers, felons, ex-felons, or minors on Deferred Entry of Judgment ... during the period of wardship except with the Probation Officer’s permission.” (Italics added.)
Appellant contends condition No. 41 fails to contain a similar requirement, and he could be held in violation of probation if he happens to sit near gang members in a classroom or inadvertently wears clothing with gang-related colors. As we have already explained, to the extent the condition fails to define “gang,” we will modify the condition to include the statutory definition of “gang” to remedy that problem. More importantly, however, condition No. 41 plainly states that appellant shall not “wear or possess any item of gang clothing known to be such by you including gang insignia, moniker, or pattern, jewelry with gang significance nor may you display any gang insignia, marker or other markings of gang significance known to be such on your person or property as may be identified by Law Enforcement or Probation Officer.” (Italics added.) Such language clearly passes constitutional muster pursuant to Sheena K. because it expressly requires knowledge on the part of the minor, but we will add another reference to the second sentence to clarify the knowledge requirement.
The last portion of condition No. 41 has some drafting problems. It states: “You will not display any gang signs or gestures.” This sentence must be modified to include Sheena K.’s knowledge requirement, so that it states: “You will not display any signs or gestures known to you to be associated with gangs.” (Italics added.) The final sentence apparently has a typographical error: “Do not associate with any person(s) known to [sic] as being gang member(s), as previously ordered.” (Underscoring in original, italics added.) It should state: “Do not associate with any person(s) known to you as being gang members ....”
We reject appellant’s constitutional arguments and find that condition No. 41, as so modified, is valid. (See, e.g., Sheena K., supra, 40 Cal.4th at pp. 888, 892.)
DISPOSITION
Probation condition No. 41 is modified as follows:
“Do not wear or possess any item of gang clothing known to be such by you including gang insignia, moniker, or pattern, jewelry with gang significance nor may you display any gang insignia, marker or other markings of gang significance known to be such by you on your person or property as may be identified by Law Enforcement or Probation Officer. You will not display any gang signs or gestures known to you to be associated with gangs. Do not associate with any person(s) known to you as being gang member(s), as previously ordered. For the purpose of this condition, the word ‘gang’ means a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f).” (Italicized words represent modifications.)
As so modified, the judgment is affirmed.