Opinion
H036810
10-26-2011
IN RE A.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Santa Clara County Super. Ct. No. JV37428
A.B. was declared a ward of the juvenile court. (See Welf. & Inst. Code, § 602.) As a condition of probation, the juvenile court ordered A.B. "not to be on or adjacent to any school campus unless enrolled or with prior administrative approval." On appeal, A.B. contends that this order is unconstitutionally vague and overbroad on its face. We modify the order and, as modified, affirm. A. Background
A juvenile wardship petition filed against appellant A.B. alleged that he committed felony vandalism by damaging and destroying a high school's security camera (Pen. Code, § 594, subds. (a)(b)(1)). Following a contested jurisdiction hearing, the juvenile court found that he had committed misdemeanor vandalism (Pen. Code, § 594, subds. (a), (b)(2)(A)). Appellant had thrown an object at the school's security camera, breaking its glass dome. After the disposition hearing, the court declared appellant to be a ward of the court. The court returned him to parental custody under the supervision of a probation officer on specified terms, conditions, and orders, including the challenged order. B. Probation Condition Restricting Proximity to School Campuses
Appellant asserts that "[t]he use of the term 'adjacent' does not provide adequate notice of what conduct is prohibited by the probation term and is, therefore, unconstitutionally vague." He expresses a concern that he "may violate his probation through unintentional acts." He also maintains that the condition is overbroad because it unconstitutionally infringes on his fundamental right to travel. He requests that the order be stricken or modified to state "a more specific measure of physical proximity."The A.G. states that "[t]he condition may be modified . . . to eliminate any confusion from the use of the word 'adjacent.' " The A.G. suggests that the matter be remanded to the juvenile court for modification.
To the extent appellant is also arguing that the school condition was unreasonable or inappropriate based on the particular facts surrounding his act of vandalism or California's law requiring outsiders to register to enter or remain on school grounds during school hours (see Pen. Code, § 627 et seq.), these contentions were not preserved for review on appeal. (See People v. Welch (1993) 5 Cal.4th 228, 237.)
1. Facial Vagueness
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' (People v. Castenada (2000) 23 Cal.4th 743, 751 . . . .) The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' (ibid.), protections that are
'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' (Ibid.) The vagueness doctrine ' "bars enforcement of 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " [Citations.]' (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 . . . .) 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.]' (Id. at p. 1116 . . . .) In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' (Id. at pp. 1116-1117 . . . , italics in original.)" (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
"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.]" (In re Sheena K., supra, 40 Cal.4th at p. 890.) Even absent an objection below, an appellant may challenge a probation condition asserted to be unconstitutionally vague on its face. (Id. at pp. 888-889.) An appellant may raise a vagueness challenge to a probation condition that "presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition. [Citations.]" (Id. at p. 888.)
The word "adjacent" conveys proximity and generally means "close to," "lying near," "next to," or "adjoining," or (See The American Heritage College Dict. (3d ed.1997) p. 16 ["Close to; lying near" and "Next to; adjoining"]; Oxford American Dict. of Current English (1999), accessed at Oxford Reference Online <http://www.oxfordreference.com> [as of Aug. 4, 2011] ["lying near or adjoining"]; Black's Law Dict. (9th ed. 2009) p. 46 ["Lying near or close to, but not necessarily touching"].) According to another common dictionary, it can also mean "not distant: nearby." (Merriam-Webster's Collegiate Dict. (10th ed. 2001) p. 14.)
As this court has recently observed: "[T]he meanings of 'adjacent' and 'adjacent to' are clear enough as an abstract concept. They describe when two objects are relatively close to each other. The difficulty with this phrase in a probation condition is that it is a general concept that is sometimes difficult to apply. At a sufficient distance, most reasonable people would agree that items are no longer adjacent, but where to draw the line in the continuum from adjacent to distant is subject to the interpretation of every individual probation officer charged with enforcing this condition." (People v. Barajas (2011) 198 Cal.App.4th 748, 761.) The People do not identify any specific distance at which, in their view, defendant would no longer be "adjacent" to a school campus in this context.
"The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct. [Citations.]" (In re Jose C. (2009) 45 Cal.4th 534, 555.) The implicit purpose of the challenged probation condition in this case was to prevent appellant from committing future acts of vandalism to school campuses. The word "adjacent" is susceptible to differing interpretations. This ambiguity leaves the probationer without clear direction and potentially subject to selective enforcement.
Further, the challenged probation condition may implicate a protected constitutional interest in the right to travel or loiter. (Cf. Kolender v. Lawson (1983) 461 U.S. 352, 353, 358, 361 [California disorderly conduct statute, which implicated constitutional right to freedom of movement, was "unconstitutionally vague on its face because it encourage[d] arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute"].) "The degree of vagueness that the Constitution tolerates-as well as the relative importance of fair notice and fair enforcement-depends in part on the nature of the enactment. . . . The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. . . .[¶] Finally, perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights." (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982) 455 U.S. 489, 498-499 .) "Uncertain meanings inevitably lead citizens to " 'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." (Grayned v. City of Rockford (1972) 408 U.S. 104, 109 , fn. omitted.)
"The right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution. (In re White (1979) 97 Cal.App.3d 141 . . . .)" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100; see In re White (1979) 97 Cal.App.3d 141, 148 ["the right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole"]; see also City of Chicago v. Morales (1999) 527 U.S. 41, 53-54 (plur. opn. of Stevens, J.) [In addition to recognizing that freedom of movement is a part of protected liberty, a plurality of the United States Supreme Court recognized that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment"].)
--------
Accordingly, to avert the danger of arbitrary enforcement and ensure fair notice of the prohibited conduct, we will modify the school condition to require that appellant ordinarily maintain a distance of more than 50 feet from school campuses. (Cf. People v. Barajas, supra, 198 Cal.App.4th at p. 761.)
2. Overbreadth
Appellant argues that the challenged order "impermissibly compromises his freedom of travel by prohibiting him from using streets which go by all school campuses" and "[h]e, and those with whom he rides, will be forced to both memorize school district maps and make nonsensical detours around campus facilities in order to comply with the term of probation."
"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. [Citation.]" (In re Sheena K., supra, 40 Cal.4th at p. 890.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Although a probation condition may be overbroad when considered in light of all the facts, only those constitutional challenges presenting a pure question of law may be raised for the first time on appeal. (In re Sheena K., supra, 40 Cal.4th at pp. 888-889.) In In re Sheena K., supra, 40 Cal.4th 875, the Supreme Court made clear that it did not "conclude that 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." (People v. Welch, supra, 5 Cal.4th at p. 235 . . . .) . . . ' [Citation.]" (Id. at p. 889, italics added.) Constitutional challenges not presenting pure questions of law are subject to the traditional objection and forfeiture principles that encourage the parties to develop the record and allow the lower court to properly exercise its discretion. (Ibid.)
Appellant's overbreadth arguments do not present a pure question of law since they require reference to his specific factual circumstances. Consequently, the forfeiture rule applies to those contentions. (Ibid.)
DISPOSITION
The court's order is modified to require appellant "not to knowingly be on or within 50 feet of any school campus unless you are enrolled or with prior administrative approval." As modified, the judgment is affirmed.
________
ELIA, J.
WE CONCUR:
________
RUSHING, P. J.
________
PREMO, J.