Opinion
H036091
08-25-2011
In re ALFREDO A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALFREDO A., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV32588)
The minor (Alfredo A.) appeals from a juvenile court judgment following the court's sustaining the allegations of a juvenile delinquency petition. His appeal concerns certain probation conditions. We will modify the judgment to adjust his probation conditions, and so modifying the judgment, we will affirm it.
FACTS AND PROCEDURAL BACKGROUND
The minor, an adherent of the Norteño criminal street gang, is now 18 years old. The case before us concerns only his juvenile delinquencies, however. He has a record of juvenile delinquency and juvenile probation violations that he began to accumulate in 2007, at age 14. (Welf. & Inst. Code, § 602.) He began with an adjudication of vandalism and soon escalated to adjudications of robbery and assault with force likely to produce great bodily injury. (See Pen. Code, §§ 211, 245, subd. (a)(1), 594.) Probation violations arose out of these adjudications and formed the basis for additional adjudications. (See § 777.) The minor was adjudicated to be a ward of the juvenile delinquency court six times in total.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The minor had a history of active involvement with the Norteño criminal street gang. The minor told one police officer that he was a Norteño or a "northerner," which the officer testified is not necessarily the same thing. He participated in an attack on school premises on a student he believed to be a member of the Sureño criminal street gang, the Norteños' archrival. The police report of that incident related that on March 23, 2007, the minor "called the victim a 'scrap' "—we may take judicial notice (Evid. Code, §§ 452, subd. (g), 459, subd. (a)) that scrap is a term of derogation for a member of the Sureño gang—"and punched him in the face. The [victim] crouched down and covered his head while [the minor] and [another student] continued to punch the victim in the face and body. The victim heard the suspects yell 'norte.' . . . The victim was transported [to the hospital] and treated for his injuries . . . ." We may also take judicial notice of the fact that norte is an epithet that the Norteño gang is known to use.
Subsequent police documentation of the incident related that "one of the suspects yelled 'Norte,' but [the victim] could not tell me whether it was [the other student] or [the minor]."
That was not the only gang-related incident with which the minor was associated. A gang-related shooting happened outside the minor's house as a party was taking place inside. The victim, known to the authorities to be a gang member, took refuge inside the minor's house. The authorities found a notebook in the minor's bedroom that contained gang-related writing and tagging. Data files they found on the minor's cell phone pointed to gang affiliation and involvement. One, a picture, showed people in jail attire inside a courtroom. The minor's phone had the picture even though, his probation officer testified, his probation orders forbade him to be within 25 feet of any court proceeding involving gang members.
Accordingly, the juvenile court imposed certain probation conditions intended to inhibit any further involvement by the minor with the Norteño criminal street gang. The minor claims that three of them are unconstitutional.
DISCUSSION
The minor claims that the following three probation conditions are unconstitutionally vague, overbroad, and/or otherwise in violation of his constitutional rights:
1. "That said minor not knowingly participate in any gang activity and/or visit any areas of gang-related activity that are known to him unless he has prior permission from his Probation Officer."
2. "That said minor not knowingly post, display, or transmit any symbols or information that the minor knows to be gang-related."
3. "That said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves [sic]anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer."
The parties agree that two of the foregoing conditions should be modified (and the People assert that all three should be), but they do not necessarily agree on the precise wording. The minor argues that the courthouse restriction should be stricken entirely.
A reviewing court reviews a trial court's imposition of a probation condition under one of two different standards. The applicable standard depends on the condition's effect on a defendant's civil liberties. " '[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.' " (People v. Olguin (2008) 45 Cal.4th 375, 384.) All others are reviewed for abuse of discretion, i.e., "[w]e do not apply such close scrutiny in the absence of a showing that the probation condition infringes upon a constitutional right. . . . [and] absent such a showing . . . simply review[ ] such a condition for abuse of discretion, that is, for an indication that the condition is 'arbitrary or capricious' or otherwise exceeds the bounds of reason under the circumstances." (Ibid.)The court may "impose conditions to foster rehabilitation and to protect public safety." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)
"A probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' " (People v. Olguin, supra, 45 Cal.4th at p. 382.)
" 'A probation condition is subject to the "void for vagueness" doctrine . . . .' " (In re H.C. (2009) 175 Cal.App.4th 1067, 1070.) " 'The underlying concern' " of the void for vagueness doctrine " 'is the core due process requirement of adequate notice: [¶] " 'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' [Citations.]" ' " ( Ibid., quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115; accord, In re Sheena K. (2007) 40 Cal.4th 875, 890.) In sum, "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." (In re Sheena K., supra, at p. 890.)
As for overbreadth, "[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., supra, 40 Cal.4th at p. 890.)
I. Area Restriction Condition
As noted, the minor claims that the area restriction condition is unconstitutional. He proposes to modify its language as follows: "That said minor not knowingly participate in any gang activity and/or visit any areas of gang-related activity specified by his Probation Officer unless he has prior permission from his Probation Officer." (Italics omitted.) The People propose to modify it as follows: "That said minor not knowingly participate in any gang-related activity and/or visit or remain at any specific location known to him, or that the probation officer informs him to be, an area of gang-related activity unless he has prior permission from his probation officer." The minor replies that the People's proposal leaves the condition vague and overbroad. He objects to "having to guess at, and broadly avoid, all areas 'known to him' to be '[an area] of gang-related activity.' " (Italics omitted.)
This is a facial challenge and in the absence of evidence that the probation officer is going to exercise discretion in an arbitrary fashion—such as telling defendant to avoid a large part of the county because one gang-related incident occurred in that area years ago—we are not authorized to disapprove it in anticipation of what might occur. As stated, "[a] probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' " (People v. Olguin, supra, 45 Cal.4th at p. 382.) On a facial challenge to a probation condition, a reviewing court assumes that a probation officer will not apply it in an arbitrary or capricious manner. (See id. at p. 383.) In Olguin, the defendant may have speculated about the unfortunate possible results of a probation condition requiring him to inform the probation officer about any pets he possessed. (See id. at pp. 382-383.) Olguin noted that the trial court had imposed the condition not because the defendant was convicted of an animal-related crime but because a dangerous dog might interfere with probationary searches. (Id. at pp. 380- 382.) Olguin observed that the condition "encompasses the gamut of pets from puppies to guppies." (Id. at p. 383.) Nevertheless, "it is not alleged that any probation officer has taken any action restricting defendant's ability to own or keep a pet at his residence. It therefore is speculative on this record to define the scope of a probation officer's supervisory authority under the notification condition in responding to a notice concerning a pet. Defendant challenges the condition on its face, but on its face the condition simply requires notification that reasonably provides the probation officer with information designed to assist in the supervision of defendant while he is on probation. What action the officer may choose to take once he or she receives information concerning a pet—whether to be accompanied by animal control officers during any search, to request that defendant detain or relocate a pet during a search, or to petition the trial court for modification of the terms of defendant's probation—is beyond the scope of a facial attack on the notification condition itself." (Ibid.; cf. People v. Leon (2010) 181 Cal.App.4th 943, 954 [" 'entirely open-ended' " probation condition contingent ab initio on probation officer's grant of permission is constitutionally questionable if it allows officer to exercise untrammeled discretion to determine the scope of permissible activity].) Similar considerations apply here.
To be sure, the condition should be as narrowly tailored as possible. "It would be altogether preferable to name the actual geographic area that would be prohibited to the [probationer]." (In re H.C., supra, 175 Cal.App.4th at p. 1072.) Neither party offers any suggestion about how this might be accomplished, however. Moreover, the minor's own proposed language—"any areas of gang-related activity specified by his Probation Officer"—seems more potentially open-ended than does that of the People. (Italics omitted.) In theory, the probation officer could specify all of Santa Clara County under the minor's own proposed language just as well as under that proposed by the People. Olguin counsels, however, against rushing to any such stretched interpretation of the language before the probation officer has taken any possibly objectionable action on the basis of it. We will adopt the People's recommendation.
II. Purveying Symbols or Information the Minor Knows to Be Gang-Related
The minor proposes to cure the asserted constitutional infirmities of this condition—principally the overbreadth and vagueness of the clause forbidding the purveying of any information—by limiting the condition to " 'symbols or information' that the minor 'knows to promote, further, or assist a criminal street gang.' " (Italics omitted.) The minor argues that this language finds support in Penal Code section 186.22. In this, he is correct. (See id., subds. (a), (b)(1), (b)(4), (d).)
The minor is also correct that the provision is overbroad and infringes unduly on his rights under the First Amendment to the United States Constitution and its equivalent in the California Constitution. The condition's current language—"[t]hat said minor not knowingly post, display, or transmit any symbols or information that the minor knows to be gang-related"—would bar him from writing about gang life in a letter to the editor of the San Jose Mercury News or a book.
The People propose to modify the condition so that the minor "may not knowingly post, display, or transmit any symbols or information via a mobile communication device, including, but not limited to, a cell phone or pager, or through the internet[,] that he knows to be gang-related."
In his reply brief, the minor asserts that we should reject this proposal as still constitutionally infirm. He is correct that the language remains problematic. For example, under the People's proposed language, the minor could not write a letter about gang life, even one repudiating that life, to the editor of the San Jose Mercury News using an iPad mobile tablet-sized computer.
In the disposition, we will direct that the condition be modified as the minor proposes.
III. Avoiding Courthouses
As noted, the authorities produced evidence suggesting that defendant was involved with efforts to monitor, or at least was the recipient of information about, courthouse activities. Evidently, the authorities' objection was that the minor might be lending support to gang members appearing before a judge. Accordingly, the juvenile court ordered the restriction on courthouse visits that we have quoted.
The minor observes that this is the precise language that we found constitutionally wanting in In re E.O. (2010) 188 Cal.App.4th 1149. He notes that in that case we ordered the probation condition stricken entirely. (Id. at p. 1158.) Thus, he disagrees with the People's proposal that the condition be retained by modifying it to conform to pattern language suggested in In re E.O.
In In re E.O., supra, 188 Cal.App.4th 1149, we found numerous problems with the language of this probation restriction. "The prohibition on being near a building in which gang-related proceedings are known to be underway would prevent appellant not only from attending a gang-related trial but also from attending other proceedings in the same, and perhaps adjacent, buildings, or indeed from entering such a building for any reason, other than as a party or witness, without his probation officer's permission, unless he 'needs' to enter for 'a legitimate purpose.' Indeed appellant could violate the condition if a car or bus in which he is a passenger passes by such a building." (Id. at p. 1155, fn. omitted, italics omitted.) "The quoted language is too vague to effectively limit the restriction. There is no way to tell whether access is 'need[ed]' or its purpose is 'legitimate.' The allowance for 'permission' from the probation officer operates independently of the provision for 'need[ed]' access and does nothing to cure its vagueness." (Id. at p. 1155, fn. 3.) "The condition not only interferes with" (id. at p. 1155) the minor's "specific right under the state Constitution to attend and participate in court proceedings if he or a family member is a victim of a crime" (ibid.)"but would also prevent him from testifying voluntarily or addressing the court in a setting, such as a sentencing hearing, where comments from members of the public might be received." (Ibid.)
"[R]estrictions on court attendance" (In re E.O., supra, 188 Cal.App.4th at p. 1156) have been "upheld as 'aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings.' " (Ibid.) Our description of E.O.'s case contains nothing to suggest that E.O. was engaging in such conduct. (See id. at pp. 1151-1152.) Indeed, E.O. had committed no acts of physical violence against other people: he had been adjudicated to have committed vandalism and possessed a knife on school grounds, and his purposes for having the latter are unclear from the case's factual description. (Ibid.)He could have had the knife to ward off violence or show friends.
By contrast, the minor here has committed at least one instance of vicious assault against another student, an assault that the police report states he committed for gang-related reasons. The minor had a picture of a criminal court proceeding on his cell phone. We may take judicial notice (Evid. Code, §§ 452, subd. (g), 459, subd. (a)) of the fact that pictures generally are not allowed to be taken inside courtrooms in this jurisdiction and the minor already had a probation condition ordering him to stay away from courthouses if the visits were for nefarious purposes.
The minor argues on appeal that there is no evidence that he took the picture or that he "in any way improperly interfered in a proceeding involving any of the men in it" or any other court proceeding. That seems to be true—the probation officer acknowledged as much on cross-examination in the hearing in this matter.
Nevertheless, the state is not required to foreclose every conceivable innocent possibility for a circumstance of this type before taking steps to protect judicial proceedings from witness intimidation and similar interferences with judicial proceedings. We stated in In re E.O., supra, 188 Cal.App.4th 1149, that when, unlike in that case, courthouse safeguards are needed, any constitutional objections (see id. at pp. 1153-1157) may be met by the following language: "You must not attend any gang- related case unless at least one of these things is true: [¶] (1) You are a party to the case. [¶] (2) You or a member of your immediate family is a victim of the activity charged in the case. [¶] (3) You are there to obey a subpoena, summons, court order, or other official order to attend. [¶] (4) A party's attorney has asked you to testify or to speak to the court.
In all other cases, you must stay at least 50 feet away from the entrance to any courtroom where you know there is a gang-related case going on. [¶] A gang-related case is a court case that you know involves charges of gang-related activity, or other charges against a person you know or have been told by your probation officer is a member of a gang. A gang is a 'criminal street gang' as defined in section 186.22 of the Penal Code.
You must not try to scare or otherwise cause anyone not to take part in a gang-related case. This includes a witness, victim, juror, or court worker. You must not try to get any witness in any court case not to testify. You must not try to get them to change their testimony." (Id. at p. 1157, fn. 5.)
The People propose that we direct the judgment here to be modified to impose the foregoing restriction, and the minor fails to persuade us that the circumstances of his case fall outside the ambit of those in which this language may be used. As we have concluded, they fall within it. We will adopt the People's suggestion.
The People do not contest the appealability of this matter, and therefore we do not address the minor's arguments that it is appealable.
DISPOSITION
The judgment is modified as follows:
1. Replace the following probation condition:
"That said minor not knowingly participate in any gang activity and/or visit any areas of gang-related activity specified by his Probation Officer unless he has prior permission from his Probation Officer."
As follows:
"That said minor not knowingly participate in any gang-related activity and/or visit or remain at any specific location known to him, or that the probation officer informs him to be, an area of gang-related activity unless he has prior permission from his probation officer."
2. Replace the following probation condition:
"That said minor not knowingly post, display, or transmit any symbols or information that the minor knows to be gang-related."
As follows:
"That said minor not knowingly post, display, or transmit any symbols or information that he knows will promote, further, or assist a criminal street gang."
3. Replace the following probation condition:
"That said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer."
As follows:
"You must not attend any gang-related case unless at least one of these things is true: [¶] (1) You are a party to the case. [¶] (2) You or a member of your immediate family is a victim of the activity charged in the case. [¶] (3) You are there to obey a subpoena, summons, court order, or other official order to attend. [¶] (4) A party's attorney has asked you to testify or to speak to the court. [¶] In all other cases, you must stay at least 50 feet away from the entrance to any courtroom where you know there is a gang-related case going on. [¶] A gang-related case is a court case that you know involves charges of gang-related activity, or other charges against a person you know or have been told by your probation officer is a member of a gang. A gang is a 'criminal street gang' as defined in section 186.22 of the Penal Code. You must not try to scare or otherwise cause anyone not to take part in a gang-related case. This includes a witness, victim, juror, or court worker. You must not try to get any witness in any court case not to testify. You must not try to get them to change their testimony."
As so modified, the judgment is affirmed.
Duffy, J.
WE CONCUR:
Rushing, P. J.
Premo, J.