Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36914.
Bamattre-Manoukian, ACTING P. J.
The minor, S. S., appeals from a dispositional order, following the findings by the juvenile court that he made threats to commit a crime resulting in death or great bodily injury. (Pen. Code, § 422.) The court placed the minor on probation with various terms and conditions, including that he “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 that he “not be on or adjacent to any school campus unless enrolled or with prior administrative approval.”
Further unspecified statutory references are to the Penal Code.
On appeal, the minor contends that the alcohol and controlled substance condition is unconstitutionally vague, and he requests that it be modified to include a knowledge requirement. Regarding the probation condition prohibiting him from being “adjacent” to a school campus, the minor argues that the condition is vague and overbroad and infringes on his constitutional rights to loiter and travel, and he requests that the condition be stricken or modified.
For reasons that we will explain, we will reverse the dispositional order. We will order the probation condition concerning alcohol and controlled substances be modified to include a knowledge requirement. We will also direct the juvenile court to hold a new dispositional hearing solely with respect to the probation condition prohibiting the minor from being “on or adjacent to any school campus unless enrolled or with prior administrative approval.” The juvenile court shall delete the reference to being “adjacent to” a school campus and, after reconsidering the purpose and need for the condition, may impose a more specific measure of physical proximity as it deems necessary.
BACKGROUND
In March 2010, the district attorney filed a petition under Welfare and Institutions Code section 602 alleging that the minor, then age 16, made threats to commit a crime resulting in death or great bodily injury. (§ 422.)
The Jurisdictional Hearing Evidence
The female victim and the male minor had one class together in 10th grade and became friends. They “hung out” twice outside of class, including at the victim’s house with another friend, and they “texted” each other. The minor “would text a lot, ” but the victim “didn’t want to text him sometimes and he wouldn’t take no for an answer.” The minor “would repeatedly try to contact” the victim when she “asked him not to sometimes.” The victim eventually told the minor that they “couldn’t be friends anymore.” The minor was mad and referred to her in a text as a “horrible friend.”
On March 14, 2010, when the two were in the 11th grade, the victim received two text messages from the minor’s cell phone. The first message stated, “I will choke you to death the next you call me a creep [sic].” The second message stated, “Ill dissect u with a saw[.]” The first message reflected the time of 5:09 p.m., and the second message reflected the time of 6:20 p.m. Copies of the messages were admitted into evidence.
The victim was at her boyfriend’s house when she received the text messages. She was surprised and scared. She did not know the minor to be a violent person, but she was afraid because she “didn’t know what he was capable of doing.” The victim felt that the minor was “capable of carrying out these threats, ” but she “never thought he would actually do anything.” The victim believed that he could hurt her “[i]f he wanted to.” However, she was not apprehensive about him coming to her house or stalking her. She had not been afraid of him before receiving the most recent texts and did not have any reason to think that he might hurt her besides these texts.
The victim talked to school officials the next day. The victim eventually obtained a restraining order against the minor to stop him from texting or calling her.
Two days after the victim received the text messages, a San Jose police officer spoke with the victim. The police officer then went to the minor’s residence, arrested him, and advised him of his Miranda rights. The minor admitted sending threatening messages to the victim and claimed it was because the victim had “disrespected him.” The minor also told the police officer that he had mental health issues that he had been off his medication for several weeks, that “he was seeing red, ” and that “basically he was not in his right mind at that time.”
Miranda v. Arizona (1966) 384 U.S. 436.
The Court’s Findings
The juvenile court found true the allegations in the petition that the minor made threats to commit a crime resulting in death or great bodily injury. (§ 422.) On August 2, 2010, the minor was declared a ward of the court and placed on probation with various terms and conditions. Relevant here, the probation conditions included: “That 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, ” and “That said minor not be on or adjacent to any school campus unless enrolled or with prior administrative approval.”
DISCUSSION
On appeal, the minor challenges the probation conditions on the grounds that they are unconstitutionally vague and/or overbroad. The minor acknowledges that he did not raise these objections in the juvenile court, but he asserts that the objections are not forfeited because the probation conditions are “unconstitutional on their face.” The Attorney General agrees that a “ ‘facial’ challenge” to a probation condition is not forfeited by the minor’s failure to object in the juvenile court.
Our Supreme Court has determined that the forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); see also People v. Leon (2010) 181 Cal.App.4th 943, 949 (Leon).) In this case, to the extent the minor’s arguments on appeal present pure questions of law without reference to the sentencing record, we will consider the substance of those arguments.
Alcohol and Controlled Substance Condition
The minor challenges the alcohol and controlled substance condition, which states that he “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.” The minor contends that the condition is unconstitutionally vague because it fails to include a knowledge requirement and that the condition should be modified to include such a requirement.
Although the Attorney General believes “it is doubtful that the probation department would use court resources to violate [the minor’s] probation for his unknowing use of alcohol or drugs, or that such an alleged violation would be sustained, ” the Attorney General “does not object to modification of the probation condition... to include a knowledge requirement.”
“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 [constitutional] challenge on the ground of vagueness. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890; Leon, supra, 181 Cal.App.4th at p. 949.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’ [Citation.]” (Sheena K., at p. 890.)
In Sheena K., the California Supreme Court considered the constitutionality of a probation condition forbidding the juvenile offender from associating with “ ‘anyone disapproved of by probation.’ ” (Sheena K., supra, 40 Cal.4th at p. 889.) The California Supreme Court concluded that the condition was unconstitutionally vague because it did not notify the juvenile offender “in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer.” (Id. at pp. 891-892.) It further concluded that “modification to impose an explicit knowledge requirement is necessary to render the condition constitutional.” (Id. at p. 892.)
In this case, we shall modify the alcohol and controlled substance condition by including a knowledge requirement. The knowledge requirement in the condition is satisfied by inserting the word “knowingly” before the word “use, ” so that the condition states (italics showing change): “That said minor not knowingly 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.”
School Campus Condition
The minor next challenges the school campus condition, which states that he “not be on or adjacent to any school campus unless enrolled or with prior administrative approval.” The minor argues that the term “adjacent” is vague and overbroad and infringes on his constitutional rights to loiter and travel. We understand him to be requesting alternatively that the entire probation condition be stricken, that “the portion of the condition prohibiting him from being adjacent to a school campus” be stricken, or that this court “resolve the vagueness issue” caused by the use of the word “adjacent.” He also argues that the probation condition lacks a “scienter component” and requests that the condition be modified to include a knowledge requirement.
A three-justice plurality of the United States Supreme Court has stated that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” (Chicago v. Morales (1999) 527 U.S. 41, 53, fn. omitted (plur. opn. of Stevens, J.).) However, a three-justice dissent has stated that “there is no fundamental right to loiter.” (Id. at p. 113 (dis. opn. of Thomas, J.).)
The Attorney General agrees that the probation condition may be modified “to eliminate any possible confusion from the term ‘adjacent, ’ ” and suggests that a distance of 150 feet may be specified or, alternatively, that the reference to “adjacent” be omitted altogether. In this latter respect, the Attorney General proposes that the condition be modified to follow the language of a school campus condition in In re D.G. (2010) 187 Cal.App.4th 47: “ ‘Do not enter on the campus or grounds of any school unless enrolled, accompanied by a parent or guardian or responsible adult, or authorized by the permission of school authorities.’ ” (Id. at p. 57.)
In reply, the minor contends that the Attorney General’s proposed 150-foot distance restriction might resolve the vagueness issue but does not resolve the overbreadth issue. As for the Attorney General’s alternate suggestion that the probation condition be modified by removing the reference to “adjacent, ” the minor contends that the school campus condition should be stricken altogether and that remand is appropriate so that the juvenile court may reconsider the purpose and need for the condition.
We first consider the minor’s contention that the probation condition prohibiting him from being “adjacent” to a school campus is vague. As we have stated above, “[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 [constitutional] challenge on the ground of vagueness. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890; Leon, supra, 181 Cal.App.4th at p. 949.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’ [Citation.] The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citation.]’ [Citation.] A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.]” (Sheena K., at p. 890.)
The word “adjacent” conveys proximity and generally means “close to, ” “lying near, ” “next to” or “adjoining.” (See American Heritage Dict. (3d college ed. 1997) p. 16 [“Close to; lying near” and “Next to; adjoining”]; Oxford English Dict. Online (2d ed. 1989) [as of June 2, 2011] [“Lying near or close (to); adjoining; contiguous, bordering” and “Not necessarily touching, though this is by no means precluded”]; Black’s Law Dict. (9th ed. 2009) p. 46 [“Lying near or close to, but not necessarily touching”].) According to another common dictionary, however, it may also mean “not distant: nearby.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 14.)
The minor argues that he is “left to wonder what areas are off-limits to him.” For example, the minor questions whether the prohibited area is “limited to a sidewalk ‘adjoining’ a school, ” or whether it also includes “ ‘nearby’ residential properties and businesses.” The Attorney General does not dispute that the term “adjacent” may create confusion and suggests that the probation condition be modified to include a specific distance restriction.
In this case, to prevent arbitrary enforcement and to provide fair warning to the minor of locations to be avoided, we determine that the probation condition requires modification. For example, instead of prohibiting the minor from being “adjacent to any school campus, ” the juvenile court might specify that the minor stay a certain distance away from a school campus, the court might use a different measure of physical proximity, or the court might otherwise specify the geographical area that the minor must avoid.
Our determination concerning use of the word “adjacent” is limited to the probation condition at issue in this case, and we do not intend to suggest that use of that word in other contexts, including penal statutes, renders those other provisions unconstitutionally vague. (See, e.g., People v. Seale (1969) 274 Cal.App.2d 107, 115 [holding that section 4574, which prohibits bringing deadly weapons without authorization into any institution housing prisoners or “within the grounds belonging or adjacent to any such institution, ” is not vague].)
The determination of an appropriate distance that is also not overly restrictive of the minor’s right to travel (see Sheena K., supra, 40 Cal.4th at p. 890 [a probation condition imposing limitations on constitutional rights must closely tailor the limitations to the purpose of the condition]) is not a question that we may resolve as a matter of constitutional law based on the record on appeal. Accordingly, we will remand this case to allow the juvenile court an opportunity to determine how the term “adjacent” in the probation condition should be modified, or whether it should be deleted altogether.
Because we have determined that the probation condition should be modified with respect to the term “adjacent, ” we do not address the minor’s remaining contentions that the probation condition is vague because it lacks an explicit knowledge requirement and that it is overbroad because it unnecessarily infringes on his right to travel. To the extent the minor believes that the probation condition still suffers from these infirmities following modification of the condition by the juvenile court on remand, he may raise those objections in the juvenile court in the first instance.
DISPOSITION
The dispositional order of August 2, 2010, is reversed. The probation condition concerning alcohol and controlled substances shall be modified to state as follows: “That said minor not knowingly 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.” The juvenile court is directed to hold a new dispositional hearing solely with respect to the probation condition prohibiting the minor from being “on or adjacent to any school campus unless enrolled or with prior administrative approval.” The juvenile court shall delete the reference to being “adjacent to” a school campus and, after reconsidering the purpose and need for the condition, may impose a more specific measure of physical proximity as it deems necessary.
WE CONCUR: MIHARA.J., LUCERO, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
There is no dispute that the right of intrastate travel is protected by the California Constitution. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100.)