Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV34823
ELIA, J.R. S., a minor, appeals from an order of the juvenile court, after the court found that the minor had violated his probation.
On appeal, the minor contends that two probation conditions that the juvenile court imposed are constitutionally infirm. For reasons that follow we modify one of the conditions, but as modified the probation order is affirmed.
Facts and Proceedings Below
After the minor admitted to possession of a loaded firearm in August 2008, his case was transferred from San Francisco County to Santa Clara County for disposition. On September 9, 2008, the Santa Clara County juvenile court placed the minor on deferred entry of judgment (DEJ). On January 23, 2009, the minor was declared a ward of court and placed on probation having failed DEJ.
As one of the conditions of that probation, the minor was ordered not to be outside the family home between the hours of 9 p.m. and 6 a.m. without competent adult supervision unless given permission by the probation officer so to do. In addition, the minor was ordered to enroll and participate in the Fresh Lifelines for Youth Inc., (FLY program) and not "own, use, or possess any dangerous or deadly weapons and not remain in any building, vehicle, or the presence of any person where dangerous and deadly weapons exist."
Following contested jurisdiction hearings held on August 3 and August 14, 2009, the juvenile court found that the minor violated probation (Welf. & Inst. Code, § 777) by staying out beyond his curfew, failing to attend the FLY program, and knowingly being in a vehicle with a loaded firearm. The evidence presented at the August 14 hearing established the minor's connection to the "Big Block" gang. In particular, the evidence established that on April 16, 2009, around 10:30 p.m. a marked police car stopped a red KIA Sportage traveling on Kiska Road in San Francisco. The minor was identified in court by a police officer as the person that got out of the back of the KIA and walked away very quickly from the car in the opposite direction to the police officer. After the minor was ordered to stop and he complied, a loaded.38 caliber handgun was discovered under the seat of the KIA where the minor had been sitting. After the minor was arrested, a search of his cell phone revealed photographs of the minor making gang gestures as well as images of drugs and money.
Thereafter, on August 17, 2009, the juvenile court retained the minor on probation, but committed him to the "ranch." The court imposed several conditions of probation including conditions 13 and 15 to which the minor now objects. Specifically, the minor objects to the following contained in the disposition order: "13. That said minor not possess, display or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures which he knows or which the Probation Officer informs him to be gang-related;... [¶] 15. That said minor not post, display or transmit any symbols or information that the minor knows, or which the Probation Officer has informed him to be gang-related[.]"
Discussion
The minor contends that probation condition 13 is constitutionally infirm because it is overbroad since he is affiliated with only one gang and "there is no rationale for prohibiting [him] from wearing clothing or having insignia that are from other gangs." As such, he asserts that it is an intrusion on his right to free speech and must be amended to prohibit him from wearing or using items that he knows are associated with only the Big Block gang.
As to probation condition 15, the minor claims that not only is it overbroad because it refers to any gang, not just the Big Block gang, it is also vague. He asserts that the terms "symbols or information" are not "precisely explained" and "not a model of clarity." Furthermore, "the verb transmit is a poor choice of words because it has many different meanings and because it is not in the common vernacular." The minor suggests that this condition must be amended to prohibit him from "sending or displaying items" that he knows are associated with only the Big Block gang.
Recognizing that he did not object below, the minor contends that "a challenge to a constitutionally overbroad probation condition can be made on appeal because it raises a pure question of law."
A juvenile court may "impose and require 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. [Citation.] That discretion will not be disturbed in the absence of manifest abuse. [Citation.]" (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)
In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the California Supreme Court held that a minor does not forfeit a claim that a term of her probation is unconstitutionally vague or overbroad even though he or she failed to object in the juvenile court. (Id. at p. 878.) Thus, a challenge to a "facial constitutional defect in the relevant probation condition" that is "capable of correction without reference to the particular sentencing record developed in the trial court" can be heard by an appellate court. (Id. at p. 887.)
Here, the minor's overbreadth claims regarding conditions 13 and 15 rely on the notion that his gang affiliation is limited to the Big Block gang and to no other gang. The Attorney General urges this court to find that the minor has forfeited his overbreadth challenges to these conditions because we would have to search the record to find valid reasons from prohibiting the minor from displaying/using any and all gang-related symbols.
"In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that court's discretion. [Citations.] Thus, an appellate court may review a forfeited claim-and '[w]hether or not it should do so is entrusted to its discretion.' [Citations.] [¶] The appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right. [Citations.]" (Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.)
Here, the minor is contending that probation conditions 13 and 15 infringe on his First Amendment right to freedom of expression. Accordingly, even if we were to agree with the Attorney General, we will address the minor's contentions.
We begin by measuring the constitutional protections that apply in the situation before us. A probationer is not entitled to the same degree of constitutional protection as other citizens. (People v. Lopez (1998) 66 Cal.App.4th 615, 624; People v. Peck (1996) 52 Cal.App.4th 351, 362.) In juvenile court, a condition of probation may be constitutional even if a similar condition imposed on an adult probationer would not, because of the juvenile court's broader discretion and a minor's lesser liberty interest. (See In re Tyrell J. (1994) 8 Cal.4th 68, 81-82, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 139.); In re Eric J. (1979) 25 Cal.3d 522, 530.)
Even conditions of probation that infringe on a constitutional right may be permissible if those conditions serve the purposes of rehabilitation and public safety. (People v. Peck, supra, 52 Cal.App.4th at p. 362.) Such conditions will pass constitutional muster if they are narrowly drawn to serve these important interests and specifically tailored to the individual probationer. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.)
"Prohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders. [Citations.] Because '[a]ssociation with gang members is the first step to involvement in gang activity,' such conditions have been found to be 'reasonably designed to prevent future criminal behavior.' [Citation.]" (People v. Lopez, supra, 66 Cal.App.4th at p. 624, fn. omitted.)
The minor claims that condition 13 is unconstitutionally overbroad because it is not limited to the gang with which he is affiliated. We disagree that it is unconstitutionally overbroad. Since association with gang members is the first step to involvement in gang activity condition 13 is closely tailored to its purpose. The purpose of condition 13 is to enhance the minor's reformation and rehabilitation by requiring him to avoid all gang associations. While the primary purpose of condition 13 is to end his current association with the Big Block gang, it is important to the minor's reformation and rehabilitation that he avoids associating with any gang that might lead him to engage in future criminal conduct. If the minor wore insignia or transmitted symbols associated with another gang, he might be challenged by a rival gang member of that gang and thereby be led into exactly the type of inter-gang violence that condition 13 is intended to help him avoid. It makes no sense to preclude him from wearing insignia or transmitting symbols associated with the Big Block gang, but allow him to support another gang, which could lead him down the path to future criminal conduct.
Accordingly, we conclude that condition 13 survives the minor's overbreadth challenge.
In his reply brief, for the first time, the minor contends that this court should insert a knowledge requirement into probation condition number 13. That is that he should be prohibited from knowingly possessing or wearing any color or symbol that is evidence of affiliation with or membership in a gang. However, as written, probation condition number 13 already contains a knowledge requirement-that "said minor not 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."
As to the minor's overbreadth and vagueness challenge to condition 15, to withstand a constitutional challenge based on vagueness apparent on the face of a probation condition, the 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.' " (Sheena K., supra, 40 Cal.4th at p. 890 .)
The "underlying concern" of the void for vagueness doctrine "is the core due process requirement of adequate notice." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.)
"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.) "A probation condition which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process." (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) Thus, to avoid being void for vagueness, a probation condition " 'must be sufficiently precise for the probationer to know what is required of him.' " (People v. Lopez, supra, 66 Cal.App.4th at p. 630.) The challenge to a probation condition as being facially vague is a pure question of law, easily remedied on appeal by modification of the condition. (Sheena K., supra, at p. 888.)
The minor asserts that the words "symbol," "information" and "transmit" are so vague that men of common intelligence must necessarily guess at their meaning. The minor's claim is based on the notion that the terms are not precisely explained or models of clarity.
"Two principles guide the evaluation of whether a law or, in this case a probation condition, is unconstitutionally vague. First, 'abstract legal commands must be applied in a specific context. 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.' [Citation.] Second, only reasonable specificity is required. [Citation.] Thus, a statute 'will not be held void for vagueness "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources." ' [Citation.]" (People v. Lopez, supra, 66 Cal.App.4th at p. 630.)
Generally, words should be understood to have their ordinary and commonly understood meaning. (See Civ. Code, § 13; see also Code Civ. Proc., § 16.) Here, the words of this probation condition are readily understandable and their ordinary meaning provide sufficient certainty to satisfy due process notice requirements. None of the words with which the minor takes issue are so arcane or obscure that men of common intelligence must necessarily guess at their meaning.
Moreover, the challenged condition requires that the minor know, or have been informed by his probation officer that he is transmitting prohibited symbols or information.
Nevertheless, plainly, the prohibition on "post[ing], display[ing] or transmit[ting] any [gang-related] symbols or information" targets speech that is ordinarily protected by the First Amendment. Without a doubt, condition 15 appears to target all forms of interpersonal communication. "Transmit" means "to send or convey from one person or place to another." (Merriam-Webster's Collegiate Dict. (10th ed.1993) p. 1255.) All "communication" involves the transmission of information. (Merriam-Webster's Collegiate Dict. (10th ed.1993) p. 233.) As noted, it is true that the First Amendment's protection of speech is not absolute (People v. Lopez, supra, 66 Cal.App.4th at p. 628), however, even a juvenile probation condition must be closely tailored to its purpose when it infringes on First Amendment rights. (Sheena K., supra, 40 Cal.4th at p. 890.) While the restriction of the prohibition to "gang-related" symbols or information cures any possible vagueness, the overbreadth of the prohibition remains. It would not serve the minor's reformation or rehabilitation to prohibit him from discussing his gang associations so long as those discussions were aimed at helping him to develop strategies for avoiding future gang involvement.
It is quite apparent to this court that the purpose of condition 15 was to prohibit the minor from taking and sending the types of photographs that were found on the minor's cell phone. Indisputably, the prohibition of such taking and sending of gang-related photographs is closely tailored to the minor's reformation and rehabilitation. We believe that condition 15 may be rendered constitutional by restricting it to photographs of symbols or gestures that are posted, displayed, or transmitted on or through the minor's cell phone, and we will modify condition 15 accordingly.
Disposition
The juvenile court's order is hereby modified so that condition 15 reads as follows: "That said minor not post, display or transmit on or through the minor's cell phone any photographs of symbols or gestures that the minor knows, or which the Probation Officer has informed him to be gang-related." As so modified, the order is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.