Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ114907, Robert J. McIntyre, Judge.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant T.P. (minor) was found by the juvenile court to have committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and to have personally inflicted great bodily injury (§ 12022.7, subd. (a)) on the victim of the assault. Minor challenges several conditions of her probation. We modify some of the challenged terms of minor’s probation.
All further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
The victim resided in the same apartment complex as minor. The victim’s sister had a confrontation with minor. On November 16, 2008, two or three weeks after the confrontation, the victim was returning to the complex after playing football with his sister and a few other friends. Minor argued with the victim’s sister about the prior confrontation; the victim’s sister then left the area. Minor then stabbed the victim with a large kitchen knife.
Prior to the stabbing, minor had already encountered the juvenile court. She was first declared a ward of the court in 2007; she had run away and was found loitering to commit prostitution. In early 2008, minor left home without permission and solicited prostitution. After being returned home in February 2008, minor left home and did not return until August 2008. Minor “started running away in 2005, and would be gone anywhere from a few days to weeks. She ran away approximately 3 times in 2005.”
Minor’s mother told the probation officer that “although [minor] ran away in the past; she had been remaining at home when the instant offense occurred.” Minor’s mother also reported moving to get minor away from the victim and his family, as well as to get minor in a different environment. The probation officer’s report concluded that, while minor’s mother cares for and is concerned for the wellbeing of minor, the mother “has little knowledge of the minor’s whereabouts, associates, or activities,” and appears to have “little control over [minor’s] decisions or conduct.” The report also stated, “In light of the runaway attempts, arrests in Los Angeles County, and poor school performance, [minor] was showing few signs of compliance with probation.” The report recommended that minor “be committed to a suitable licensed facility like the Youth Opportunity Program (YOP).” YOP was recommended because “the minor indicated a strong opinion against placement” and “[h]er history suggests a high probability for running away.”
The juvenile court continued minor as a ward, placed her in YOP, and imposed the terms of probation recommended in the probation officer’s report.
II. CONDITIONS LACKING KNOWLEDGE REQUIREMENT
Minor contends the following conditions should be modified to include a knowledge requirement: (1) “Not have direct or indirect contact with any nonrelative on probation or parole unless approved by Probation Officer”; (2) “Not associate with anyone who has possession of weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, and knives.” The People agree and suggest a revision. Minor agrees with the People’s proposed revision. We agree to the revision because the conditions are overbroad due to the lack of knowledge requirements.
“A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
Requiring minor to refrain from associating infringes on her constitutional right of freedom of association. (U.S. Const., 1st Amend.; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Consequently, the conditions must be narrowly tailored. The state interest for which the conditions must be narrowly tailored is minor’s rehabilitation. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.) The state’s interest in rehabilitation would not be served by punishing minor for associating with people who, unknown to her, are possessing weapons or on parole or probation. Thus, the conditions should be modified to include knowledge requirements.
III. CONDITION WITH VAGUE TERM
Minor challenges the following condition: “Not associate with individuals who are known gang members, or with persons engaged in graffiti or related activities.” Minor contends the graffiti provision would bar lawful graffiti. Minor suggests a revision to specify “unauthorized” graffiti. The People contend that “graffiti” has a reasonably understood meaning that does not elicit benign connotations, and cite the definition of graffiti in section 594, subdivision (e), for the proposition that “graffiti” is already restricted only to unauthorized markings. We agree with minor.
As discussed ante, conditions impinging on constitutional rights must be narrowly tailored. The state’s interest in minor’s rehabilitation would not be served by punishing her for associating with persons who are engaged in lawful graffiti art.
The People’s reliance on the definition in section 594 is misplaced. Subdivision (e) of section 594 states: “As used in this section, the term ‘graffiti or other inscribed material’ includes any unauthorized inscription, word, figure, mark, or design, that is written, marked, etched, scratched, drawn, or painted on real or personal property.” This not a universal definition of the word graffiti, it is a definition of “graffiti or other inscribed material,” and is a definition for use in a particular section of code. (§ 594, subd. (e).) Contrary to the People’s assertion, the term graffiti can have benign connotations. In particular, graffiti may describe a style of art that may be lawfully engaged in. (See, e.g., Vincenty v. Bloomberg (2d Cir. 2007) 476 F.3d 74, 78, 87 [mentioning “lawful works of graffiti art” while partially prohibiting enforcement of law barring certain persons from possessing spray paint and large indelible ink markers]; Esquivel, Art Seeks to do Justice to History, L.A. Times (Oct. 15, 2009) p. A12 [noting a graffiti artist painted a mural at our colleague’s new Court of Appeal building in Santa Ana].) Accordingly, the condition should be modified to bar association only with those engaged in unauthorized graffiti or related activities.
IV. RESIDENCY CONDITIONS
Minor contends the following condition is overbroad: “Advise the probation officer of any change in address or telephone number. Not move without prior consent of the probation officer.” The People contend the condition is acceptable because minor is a ward of the court and not an adult. We agree with the People.
A probation condition that grants a probation officer discretion over the choice of residence “impinges on constitutional entitlements—the right to travel and freedom of association.” (People v. Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer).)
“The juvenile court has broad discretion in formulating conditions of probation. [Citation.] ‘The 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.’ [Citation.] In planning such conditions, ‘ “the juvenile court must consider not only the circumstances of the crime but also the minor’s entire social history. [Citations.]” [Citation.]’ [Citation.] ‘A condition of probation will be considered invalid if 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.]’ [Citation.]” (In re Jason J. (1991) 233 Cal.App.3d 710, 714, [Fourth Dist., Div. Two], overruled on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237.) “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.” (In re Todd L. (1980) 113 Cal.App.3d 14, 19.) “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. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may ‘curtail a child’s exercise of the constitutional rights... [because a] parent’s own constitutionally protected “liberty” includes the right to “bring up children” [citation,] and to “direct the upbringing and education of children.” [Citation.]’ [Citations.]” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)
When a juvenile court places a ward under a probation officer’s supervision or commits the ward to a probation officer’s care, custody, and control, the “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).) Similarly, under Welfare and Institutions Code section 727, subdivision (a), when a minor is adjudged a ward of the court, “the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor[.]” Welfare and Institutions Code section 727 therefore permits the juvenile court to give a probation officer the authority to determine the most appropriate residence for a minor on supervised probation. Furthermore, if a probation officer places a minor in an approved residence, a probation condition that ensures the officer can continue to monitor where the minor resides is “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).)
Minor has a history of running away and engaging in criminal activity. Her running away precluded her compliance with her previous terms of probation. Furthermore, her instant offense sprung from her negative interactions with other residents of her apartment complex. Accordingly, the probation condition that directs minor not to move without the prior consent of the probation officer is reasonably related to minor’s future criminality, and furthers the rehabilitative goals of her wardship. Thus, the condition is not constitutionally overbroad.
V. DISPOSITION
The condition restricting minor’s contact with persons on probation or parole is modified to read: “Not have direct or indirect contact with any nonrelative whom she knows to be on probation or parole, unless approved by Probation Officer.”
The weapons association condition of minor’s probation is modified to read: “Not associate with anyone minor knows possesses weapons of any kind, including, without limitation, firearms, firearm facsimiles, nunchuks, martial arts weaponry, or knives.”
The graffiti and gang association condition of minor’s probation is modified to read: “Not associate with individuals whom she knows are gang members, or with persons whom she knows are engaged in unauthorized graffiti or related activities.”
The superior court clerk is directed to amend the minutes and the probation order to reflect these modifications.
In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., KING J.