Opinion
A151237
03-15-2018
In re A.Z., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.Z., Defendant and Appellant.
ORDER MODIFYING NONPUBLISHED OPINION
[NO CHANGE IN JUDGMENT]
Before Jones, P.J., Needham, J., and Bruiniers, J.
IT IS ORDERED that the opinion filed herein on March 15, 2018, be modified as follows:
On page 6, the second sentence in the first complete paragraph is deleted and replaced with the following sentence:
A.Z. argues Brian's testimony is insufficient because Brian contradicted himself regarding his level of certainty, he recognized A.Z.'s voice based on only two words, Brian had limited familiarity with A.Z., and no corroborating evidence linked A.Z. to the robbery.The modification effects no change in the judgment. The petition for rehearing is DENIED. Date__________
/s/_________ P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. JV26403B)
The juvenile court found that A.Z. had committed second degree robbery (Pen. Code, § 211) and declared him a ward of the juvenile court (Welf. & Inst. Code, § 602). A.Z. appeals, asserting the juvenile court (1) made findings unsupported by substantial evidence; (2) violated his due process rights by continuing to preside over his jurisdictional hearing after considering his motion to exclude his confession; and (3) imposed a vague and overbroad probation condition. We affirm.
A.Z. also filed a petition for writ of habeas corpus (No. A153145). We deferred the question of whether to issue an order to show cause pending this appeal. By separate order, we deny the habeas petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2017, the Marin County District Attorney filed a wardship petition alleging A.Z., who was then 13 years old, committed second degree robbery. A.Z. denied the allegations of the petition, made an oral motion in limine to exclude incriminating statements taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and sought an Evidence Code section 402 hearing.
Undesignated statutory references are to the Evidence Code.
The People called San Rafael Police Department Officer Carlos Maldonado to testify at the section 402 hearing. Maldonado testified regarding A.Z.'s admission that he participated in the robbery. Defense counsel offered into evidence footage from Maldonado's body camera, which captured the conversation between Maldonado and A.Z. It was admitted without objection. Because the recording was "long" the prosecutor proposed the juvenile court hear the jurisdictional testimony, subject to a motion to strike, before the juvenile court ruled on the Miranda motion. Defense counsel raised no objection.
In the jurisdictional portion of the hearing, Maldonado testified that on March 9, 2017, he responded to a report of a possible robbery and spoke to the victim, Brian A. Brian told Maldonado that he had been walking home when he was robbed. Brian identified two former classmates—A.Z. and Alexander D.—as having been involved. Brian said he did not see A.Z., but told Maldonado he heard one of the robbers say, "take something," and he was certain that voice was A.Z.'s. Brian said he was sure about his identification of A.Z. Brian told Maldonado that, although he and A.Z. were not friends, he knew A.Z.'s voice from hearing him speak at school. Maldonado conducted a probation search of A.Z.'s room, where Maldonado found a pair of True Religion pants similar to the ones described by Brian as having been taken during the robbery. However, Maldonado also encountered other pairs of True Religion pants during his search.
Maldonado's testimony regarding Brian's out of court statements was received for the limited nonhearsay purpose of explaining Maldonado's subsequent conduct. We do not consider them for any other purpose on appeal. A.Z. has forfeited any argument the out of court statements were entirely inadmissible by failing to adequately raise the issue in his opening brief.
A.Z. had been previously declared a ward of the juvenile court and placed on probation.
Brian was the sole additional witness to testify at the jurisdictional hearing. Brian knew A.Z. because they had attended the same middle school in San Rafael. On March 9, 2017, Brian was walking with a friend to his younger brother's elementary school. They had decided to take a short cut, when Brian noticed four people "sneaking up" behind some bushes. Brian recognized a boy named Ronnie and another boy named Alex. Brian told his friend to run because he did not know what was about to happen.
Alex put Brian in a headlock and Brian was forced to the ground, facing a wall. Someone put his knee against Brian's ear to prevent him from moving. Brian heard A.Z. say, "Take something." Brian recognized the voice; he believed it belonged to A.Z. because Brian had previously heard A.Z. talk "around school." Brian's shoes, belt, and jeans were removed. His phone and wallet, containing $12 and a school identification, were in his jeans. The robbers then ran away with his clothing. Brian could not see who they were because they ran fast.
On cross-examination, Brian acknowledged he no longer attended the same school as A.Z., he was not friends with A.Z., and he did not visually observe A.Z. at the scene. Brian also testified A.Z.'s voice is "a little bit low[er]" than other kids. Brian said he had never talked to A.Z. directly but had heard A.Z. talk to others. Brian had most recently heard A.Z. speak in January or February 2017.
Brian also testified, on cross-examination, that he told Maldonado he was "not sure" but thought A.Z. was one of the culprits. In an attempt to clarify Brian's testimony, defense counsel rephrased the question. Defense counsel asked, "So were you sure that it was [A.Z.]?" Brian answered, "Yeah." Counsel repeated, "You were sure?" Brian confirmed, "Yeah, I was sure." Defense counsel then asked if Brian told Maldonado, " 'I'm not sure, but I think it's [A.Z.].' " Brian replied, "Yeah." The juvenile court told Brian "nobody is trying to trick you" and asked Brian to listen carefully to defense counsel's question. Defense counsel asked, "When the officer was asking you what happened, and you told him that, did you tell him 'I'm not sure, but I think it was [A.Z.'s] voice'?" Brian replied, "Yeah." Counsel asked, "So you did tell him 'I'm not sure,' correct?" Brian answered, "Yeah."
Following closing arguments, the Honorable Beverly Wood took the matter under submission, stating she would review the entirety of the body camera recording. Judge Wood announced her decision eight days later. Judge Wood concluded A.Z. had been subject to custodial interrogation without being given Miranda warnings, and excluded his statements. Judge Wood immediately thereafter sustained the petition, finding Brian "testified credibly that he recognized [A.Z.]'s voice." The court observed: "[Brian]'s statements may not have been perfectly clear, however [he] is young, was obviously nervous, and may have been intimidated by the proceedings. Giving consideration to these factors, [Brian]'s overall testimony and recollection of the events, and his demeanor, the Court finds the identification of [A.Z.] credible and therefore grounds for finding the allegations in the petition true."
At disposition, the juvenile court declared A.Z. a ward and ordered formal probation in his mother's home with various terms and conditions. A.Z. filed a timely notice of appeal.
II. DISCUSSION
A.Z. maintains the juvenile court (1) made findings unsupported by substantial evidence; (2) violated his due process rights by continuing to preside over his jurisdictional hearing after considering his motion to exclude his confession; and (3) imposed a vague and overbroad probation condition. A. Substantial Evidence
A.Z. asserts the juvenile court's jurisdiction finding is unsupported by substantial evidence. Specifically, A.Z. challenges only the court's implicit identity finding, insisting Brian's testimony that he recognized A.Z.'s voice lacked adequate foundation and corroboration.
Our review of A.Z.'s substantial evidence claim is governed by the same standard applicable to adult criminal cases. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.) When faced with a substantial evidence challenge, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) " 'This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.' " (Ryan N., at p. 1372.)
Nor is substantial evidence synonymous with any evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) However, "the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' [Citations.] Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the [fact finder]'s resolution . . . ." (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.)
The People bear the burden in their case-in-chief of proving the elements of the charged crime and the identity of defendant as the perpetrator. (People v. Williams (1988) 44 Cal.3d 883, 907, fn. 7.) With respect to identity, " 'to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.' " (People v. Mohamed (2011) 201 Cal.App.4th 515, 521, quoting People v. Lindsay (1964) 227 Cal.App.2d 482, 493.) "The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the qualification of identity and lack of positiveness in testimony are matters which go to the weight of the evidence and the credibility of the witnesses, and are for the observation and consideration, and directed solely to the attention of the jury in the first instance and then the trial court upon the motion for new trial. [Citation.] The general rule, then, is that it is not essential that a witness be free from doubt as to one's identity. He may testify that in his belief, opinion or judgment the accused is the person who perpetrated the crime, and the want of positiveness goes only to the weight of the testimony. [Citations.] Our courts have held that it is not necessary that any of the witnesses called to identify the accused should have seen his face. [Citation.] Identification based on other peculiarities may be reasonably sure. Consequently, the identity of a defendant may be established by proof of any peculiarities of size, appearance, similarity of voice, features or clothing." (Lindsay, at pp. 493-494, fn. omitted.) "[T]he law regards the sense of hearing as reliable as that of any other of the five senses. [Citation.] . . . Voice is a competent means of identification and a person may be identified by such means alone." (Connell v. Clark (1948) 88 Cal.App.2d 941, 947.)
Despite the existence of the above authority, A.Z. contends no case has affirmed a robbery conviction or true finding "on evidence of identity as weak as that presented here." A.Z. argues Brian's testimony is insufficient because he recognized A.Z.'s voice based on only two words, Brian had limited familiarity with A.Z., and no corroborating evidence linked A.Z. to the robbery. A similar argument was raised and rejected in People v. Thompson (1962) 206 Cal.App.2d 734. In that case, a police officer testified that he identified the defendant, after having a conversation with her at the house linked to a certain telephone number, as the person he had placed a bet with during a brief telephone call. (Id. at pp. 738-739.) The evidence was found sufficient to uphold a bookmaking conviction. (Id. at p. 739.) In reaching that conclusion, the court observed: "It was a question of fact, for the determination of the trial judge, as to whether it was defendant's voice that the officer heard on the telephone. There is no legal requirement that the officer's testimony, relative to recognizing a voice, be accompanied or corroborated by additional testimony that the voice referred to was an unusual one." (Id. at p. 739, italics added.)
A.Z. directs our attention to People v. Redmond (1969) 71 Cal.2d 745 (Redmond), where a judgment of conviction for burglary was reversed because our Supreme Court concluded there was insubstantial evidence of the defendant's guilt. (Id. at pp. 757, 760.) In Redmond, a man entered the living room of an elderly couple with his face entirely covered by a mask, said he knew they had $600, and demanded the money even after they denied having it. He left after striking the wife, who gave him $10 from her purse. (Id. at pp. 748-749.) The wife testified that the defendant, a television salesman, had visited her home the previous day on a sales call. She also testified the defendant resembled the robber and that "the robber was wearing the same coat as the television salesman"—a black and white tweed sports coat. (Ibid.) The wife identified the salesman from a lineup at a police station. She said she based her identification on the similarity of voice and some "expression across the eyes that . . . resembled" that of the salesman. (Id. at p. 750.) The defendant testified that the only tweed sport coat he owned was powder blue, and his parents, whom he lived with, testified that he did not have a black and white tweed sports coat. (Id. at p. 752.)
Concluding there was insubstantial evidence of identity, the Redmond court pointed out that at trial the wife "was not asked and did not state whether she recognized defendant either as her assailant or as the television salesman. On cross-examination she was not asked to identify defendant as the assailant but only as to whether she had identified him at the lineup. She said she 'wasn't sure' and 'wasn't quite sure' whether the man in the lineup was the television salesman. Although at the outset she said 'there is an expression across the eyes that I recognized, and I recognized the voice very definitely,' she subsequently stated that her identification was based upon a voice similarity and some expression in the eyes, and she finally testified that she told the officers that she was unable to identify defendant. The officer's testimony agreed . . . ." (Redmond, supra, 71 Cal.2d at p. 756.) The wife also did not testify that, at the time the crime was committed, she recognized the assailant as the television salesperson or that on some subsequent date she thought that the assailant and the salesperson might be the same person. (Id. at p. 757.) "[I]n [these] circumstances there is no basis for a conclusion that she identified defendant as her assailant or as the television salesman either at the trial or at the lineup." (Id. at p. 756.)
Contrary to A.Z.'s assertion, Brian's identification is not analogous. Here, Brian positively testified that, at the time the crime was committed, he recognized A.Z. as one of the robbers based on his voice, which he knew, from his familiarity with A.Z., to be somewhat distinctive. Any weakness in Brian's identification was for the juvenile court's evaluation. The juvenile court found Brian's identification credible, and A.Z. has not shown his identification by voice was either impossible or inherently improbable. Further, Maldonado's testimony regarding the presence of True Religion jeans matching Brian's description in A.Z.'s room, although certainly not compelling on its own, tends to corroborate Brian's identification of A.Z. The evidence is sufficient to support the jurisdictional finding. B. Same Judicial Officer Presided Over Section 402 and Jurisdiction Hearings
A.Z. also maintains the juvenile court violated due process by allowing the same judicial officer to preside over both his section 402 hearing and the jurisdictional hearing. He insists the Miranda motion should have been heard by a different judicial officer because, once Judge Wood heard his inculpatory statements to police, she "was necessarily exposed to information that [the juvenile court] was not permitted to consider" at jurisdiction.
The People contend A.Z. forfeited his argument by failing to object or otherwise seek disqualification below. Because A.Z. raises an ineffective assistance of counsel claim, we assume, without deciding, A.Z.'s claims were preserved for appeal and address his claim on the merits.
A.Z. acknowledges no authority "affirmatively prohibit[s] a single judicial officer from considering both a Miranda motion and a contested [jurisdictional] hearing in the same case." Instead, he relies on rule 5.780 of the California Rules of Court and In re Gladys R. (1970) 1 Cal.3d 855 (Gladys R.).
Gladys R., supra, 1 Cal.3d 855 held a juvenile court committed reversible error in reviewing a probation officer's social study report, including the minor's prior record, psychological reports, and statements to the probation officer before the jurisdictional hearing. (Id. at pp. 858, 860, 861; accord, In re Corey (1968) 266 Cal.App.2d 295, 296, 299.) The Gladys R. court reasoned: "The history of Welfare and Institutions Code sections 701, 702, and 706 clearly indicates that the Legislature intended to create a bifurcated juvenile court procedure in which the court would first determine whether the facts of the case would support the jurisdiction of the court in declaring a wardship and thereafter would consider the social study report at a hearing on the appropriate disposition of that ward. This procedure affords a necessary protection against the premature resolution of the jurisdictional issue on the basis of legally incompetent material in the social report." (Gladys R., at pp. 859-860, italics & fns. omitted.)
The Gladys R. and In re Corey decisions were based on the plain language of Welfare and Institutions Code former sections 701, 702, and 706 which made clear the Legislature's intention to distinguish the jurisdictional and dispositional aspects of juvenile proceedings. (Gladys R., supra, 1 Cal.3d at p. 859 & fns. 2-4; In re Corey, supra, 266 Cal.App.2d at p. 298.) "The review by the juvenile court of a probation report or social study prior to or during the jurisdictional hearing constitutes prejudicial error . . . [because] the bifurcated juvenile court procedure prescribed in [Welfare and Institutions Code] sections 701, 702, and 706 is designed to make certain that the jurisdictional order is made before the consideration of any social study or probation report containing material irrelevant to acts or circumstances which are alleged to bring the minor within the jurisdiction of the juvenile court." (In re D.J.B. (1971) 18 Cal.App.3d 782, 784-785, italics & fns. omitted.) "The decision is grounded not only upon statutory interpretation, but upon basic principles of fairness. The desirable purpose is to guard against the adjudication of guilt being affected by inappropriate considerations dealing with disposition." (People v. Allen (1973) 29 Cal.App.3d 932, 936, italics added.) This judicial rule has been codified by California Rules of Court, rule 5.780(c).
At the time Gladys R. was decided, Welfare and Institutions Code former section 701 provided: " '[T]he court shall first consider only the question whether the minor [comes within the court's jurisdiction], and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence . . . .' " (Gladys R., supra, 1 Cal.3d at p. 859, fn. 2.) Welfare and Institutions Code former section 702 provided that " '[if] the court finds that the minor is [within its jurisdiction], it shall make and enter its findings and order accordingly and shall then proceed to hear evidence on the question of the proper disposition to be made of the minor. Prior to doing so, it may continue the hearing, if necessary, to receive the social study of the probation officer . . . .' " (Gladys R., at p. 859, fn. 3.) Welfare and Institutions Code former section 706 provided: " 'After finding [the minor comes within its jurisdiction], the court shall hear evidence on the question of the proper disposition to be made of the minor. The court shall receive in evidence the social study of the minor made by the probation officer . . . .' " (Gladys R., at p. 859, fn. 4.)
California Rules of Court, rule 5.780(c) provides, "Except as otherwise provided by law, the court must not read or consider any portion of a probation report relating to the contested petition before or during a contested jurisdiction hearing." (Italics added.)
A.Z. points to no similar statutory language that suggests the Legislature believes a similar rule should extend to the situation before us—when a juvenile court both considers a motion to exclude a minor's confession and presides over the jurisdictional hearing. Of course, delaying consideration of the Miranda issue until after the jurisdictional hearing is not the result A.Z. seeks. Instead, A.Z. argues similar fairness concerns dictate judicial disqualification because "both a probation report and a Miranda hearing may contain information which could affect determination of the jurisdictional issues, but is not admissible at the jurisdictional hearing. For example, disposition reports routinely set forth the circumstances of the offense as described in the police report including witness statements and the minor's statement. . . . And, the minor's statement is likewise the evidence sought to be excluded in a Miranda motion. . . . Thus, since the judicial officer who presides over the jurisdictional hearing is prohibited from reviewing the probation report until after making jurisdictional findings, a judicial officer must likewise be prohibited from proceeding to a jurisdictional hearing after reviewing the minor's statements in the context of a Miranda motion."
Although not cited by either A.Z. or the People, People v. Acosta (1971) 18 Cal.App.3d 895 (Acosta) and In re Harold M. (1978) 78 Cal.App.3d 380 (Harold M.) reject the premise of A.Z.'s argument. Acosta involved an adult defendant tried by the court after he waived his right to jury trial. (Acosta, supra, 18 Cal.App.3d at pp. 899-900.) The trial court ordered his confession suppressed and thereafter convicted him of four counts of first degree murder. (Id. at pp. 899, 902-903.) On appeal, the defendant argued that where a case is tried without a jury, a different judge must hear the evidence underlying the motion to suppress. (Id. at p. 902.) The Acosta court parsed the language of section 405, and concluded the statutory use of the term "the court" means "it is permissible for a trial judge trying a case without a jury to conduct the voir dire hearing and determine the admissibility of a confession." (Acosta, at p. 903, italics omitted.)
Section 405, subdivision (a) provides: "When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises. The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises." (Italics added.)
Section 402 provides: "(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. [¶] (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute."
Harold M. extended Acosta to proceedings before the juvenile court. (Harold M., supra, 78 Cal.App.3d at p. 389; see In re Anthony H. (1983) 148 Cal.App.3d 1123, 1125, fn. 1.) In doing so, the Harold M. court explicitly rejected the notion that a juvenile court judge would be prejudiced in its jurisdictional findings after having heard admissibility issues. "We think . . . the judge is . . . 'able to weigh the evidence without being prejudiced . . . .' " (Harold M., at p. 389.)
"Although a defendant in a criminal proceeding . . . ' is entitled to a trial by a judge who is detached, fair and impartial' (In re Richard W. (1979) 91 Cal.App.3d 960, 967), the mere fact a judge obtains information during litigation does not automatically disqualify that judge from further proceedings. 'A trial judge hears many items during the course of a trial which are inadmissible, and [s]he is called upon to rule on the admissibility of numerous evidentiary matters. The fact that [s]he has heard these things does not mean that [s]he cannot divorce them from [her] mind.' " (People v. Scott (1997) 15 Cal.4th 1188, 1206.) " 'To justify . . . a reversal on appeal, an affirmative showing of prejudice is required.' " (In re Richard W., at p. 968.)
Nothing in the record supports A.Z.'s argument that the juvenile court, in making its jurisdictional findings, improperly considered his confession. The record before us affirmatively shows Judge Wood ruled on A.Z.'s motion to exclude his confession before sustaining the petition and that Judge Wood "exclude[d] that evidence." In sustaining the charge against A.Z., Judge Wood discussed her findings taken from the remaining evidence—i.e., Brian's identification testimony. We cannot presume the juvenile court considered the evidence it explicitly stated it had excluded. (See People v. Lang (1989) 49 Cal.3d 991, 1044; § 664.) "Appellate courts ordinarily presume that a judge is capable of weighing the admissible evidence without being prejudiced by extraneous matters." (Solomon v. Superior Court (1981) 122 Cal.App.3d 532, 537.) C. Probation Condition
One condition of A.Z.'s probation is that he is to "[n]ot be a member of, or associate with, any person [he] knows, or reasonably should know, to be a member or to be involved in the activities of a criminal street gang." Defense counsel objected to the condition at disposition, arguing "there is really no evidence [A.Z.] is involved in any gangs." A.Z. asks the court to strike the language "or to be involved in the activities of a criminal street gang," arguing it is vague and overbroad. A.Z. also insists the condition violates his constitutional right to travel. (Cal. Const., art. I, §§ 7, 24.) The People concede "there is a difference between the oral pronouncement of the probation condition and the written condition," but disagree that either is vague or overbroad.
At disposition, the juvenile court orally announced the condition as follows: "[A.Z. is] not to be a member of or associate with any person [he] know[s] or should reasonably know to have a gang affiliation or membership."
A.Z.'s overbreadth and vagueness arguments may be raised for the first time on appeal because they present pure questions of law. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 [defendant's challenge to probation condition as unconstitutionally overbroad and vague not forfeited by failing to object in juvenile court].)
Welfare and Institutions Code "[s]ection 730, subdivision (b) authorizes the juvenile court to '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.' 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." (In re Josh W. (1997) 55 Cal.App.4th 1, 5.) "Of course, the juvenile court's discretion is not boundless. Under the void for vagueness doctrine, based on the due process concept of fair warning, an order ' "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." ' [Citation.] The doctrine invalidates a condition of probation ' " 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " ' [Citation.] By failing to clearly define the prohibited conduct, a vague condition of probation allows law enforcement and the courts to apply the restriction on an ' " 'ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.' " ' [Citation.] [¶] In addition, the overbreadth doctrine requires that conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." (In re Victor L. (2010) 182 Cal.App.4th 902, 910, italics omitted.)
"[W]e review constitutional challenges to a probation condition de novo." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143; accord, People v. Mendez (2013) 221 Cal.App.4th 1167, 1172 ["[i]f the vagueness of a probation condition may be corrected 'without reference to the particular sentencing record developed in the trial court' [citation], an issue of law arises subject to de novo review on appeal"].)
"It is an essential component of due process that individuals be given fair notice of those acts which may lead to a loss of liberty." (In re Robert M. (1985) 163 Cal.App.3d 812, 816.) A probation condition is "unconstitutionally vague if it is not ' "sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." ' ([In re Sheena K., supra, 40 Cal.4th] at p. 890 . . . .) A restriction failing this test does not give adequate notice—'fair warning'—of the conduct proscribed." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "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." [Citation.]' [Citation.] . . . 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." ' " (Sheena K., at p. 890, italics omitted.) "[A] probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' " (People v. Hall (2017) 2 Cal.5th 494, 501.)
A.Z. complains the written condition is vague because it is subject to being incorrectly interpreted as directly prohibiting A.Z.'s involvement in certain activities, rather than merely prohibiting association. To support his argument, A.Z. mistakenly relies on In re Victor L. The condition under review in that case prohibited the probationer from going to " 'areas known by [him] for gang-related activity.' " (In re Victor L., supra, 182 Cal.App.4th at p. 913, italics added.) In that context, the court observed that gang "activity" might include gang members' mailing a letter or shopping for groceries for the benefit of the gang or in association with gang members, thus raising the possibility the probationer "might be guilty of violating probation simply by shopping at the same grocery store or using the same post office that other gang members patronize." (Id. at p. 915.) The court held the vaguely-worded condition "could be misapplied by law enforcement unless further specification were provided." (Ibid.) The Victor L. court's concern was the broadness of the term "activity" as it was used to define locations the minor was required to avoid. (Id. at pp. 915-917; In re Oswaldo R. (2017) 11 Cal.App.5th 409, 414 (Oswaldo R.).)
Gang membership and " 'participat[ion] in any gang activity' " were forbidden by a separate condition that was not challenged. (In re Victor L., supra, 182 Cal.App.4th at p. 915.)
A.Z. also directs our attention to Oswaldo R., supra, 11 Cal.App.5th 409, but the opinion does not support his position. In that case, Division Two of this district rejected a claim that a probation condition requiring the defendant not to " 'participate in any gang-related activity' " was facially vague in violation of due process rights because he could not ascertain in advance what activities he was required to avoid. (Id. at pp. 412, 416.) Specifically, the minor was concerned that "he might engage in what he believes to be innocent behavior, such as 'attending a particular musician's concert at a multi-purpose venue or watching an automobile sideshow on a public street,' only to learn that his probation officer viewed it as forbidden conduct." (Id. at p. 416.) The Oswaldo R. court concluded the scope of the condition was readily ascertainable " ' " 'by reference to other definable sources' " ' "—in that case, statutory definitions. (Id. at pp. 416-417, quoting Hall, supra, 2 Cal.5th at pp. 500-501.) The Oswaldo R. court concluded " 'gang-related activity,' " considered in context, "cannot reasonably be understood as applying to lawful activities that happen to take place where gang members are present." (Id. at p. 418.) Instead, it refers to "activity facilitating or involving the commission of crimes for the benefit of or in association with a criminal street gang." (Ibid.)
A.Z.'s argument is little different from that raised and rejected in Oswaldo R. A.Z. contends the Oswaldo R. court's construction of "gang-related activity" does not apply to "activities of a criminal street gang" because the word "activities" is not similarly limited. He asserts his condition could be reasonably understood to prohibit his attendance at street fairs or festivals, where associates of a criminal street gang may be present. We are unpersuaded.
The written condition is not amenable to A.Z.'s reading. It does not enjoin A.Z. from merely being at the same location as "associates" of gangs. The condition clearly prohibits A.Z. from associating with those he knows or reasonably should know are actual members of gangs or are involved in the activities of criminal street gangs. In other words, A.Z. is not prohibited from associating with a person who associates with gang members, unless he knows or should know that person is actually involved in the activities of a criminal street gang. The condition provides the reasonable degree of certainty required. (People v. Hall, supra, 2 Cal.5th at pp. 501, 503.)
A.Z.'s overbreadth concerns are a product of his unreasonable reading of the condition. Under a reasonable understanding of the condition, A.Z. is not prohibited from being in any particular area by the condition.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.