Opinion
A132030 Sonoma County Super. Ct. No. 36837J
02-02-2012
In re BRIAN P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. BRIAN P., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After being declared a ward of the juvenile court (Welf. & Inst. Code, § 602), appellant Brian P. was placed on probation subject to gang conditions. He argues that those conditions must be stricken from the probation order because the offense was not gang-related and the record does not show that he belonged to or associated with any criminal street gang. Appellant alternatively contends that one of the conditions is void for vagueness because it prevents him from being present in an area of "criminal street gang-related activity or graffiti tagging-related activity," without defining what constitutes "related activity." We affirm.
BACKGROUND
On December 26, 2010, 13-year-old appellant was skateboarding at Madrone Elementary School with several friends. He and another boy walked toward Room 9 and when they returned, appellant bragged about breaking some windows. A mother of one of the boys in the group contacted the police after her son told her what had happened, and an officer went to the school and discovered that six windows in Room 9 had been broken. Appellant acknowledged breaking some of the windows, which were replaced at a cost of $712. He and his friends had vandalized several classrooms of the same school in 2009, but the case had been handled informally in light of their ages.
Appellant admitted a delinquency petition alleging a single count of misdemeanor vandalism. (Pen. Code, § 594, subd. (a).) The case was set for a dispositional hearing, and both appellant and his father were interviewed by the probation officer. The probation report notes that appellant had a history of poor grades and behavioral problems, and that his family, which includes his parents and seven siblings, had been the subject of several referrals to the Human Services Department. Appellant's father has a lengthy criminal history and, though he denied any current involvement, two tattoos suggest affiliation with the Norteños criminal street gang: "XIV" on his left forearm and a teardrop under his right eye. During the interview with the probation officer, appellant's father failed to disclose a number of significant facts, including the family's history with Human Services, the identity of his ex-wife, and the identity of an older son from that former relationship who had also been declared a ward of the court.
The probation officer recommended that appellant be placed in his family's home under the supervision of the probation department, but in light of the father's tattoos, recommended that gang conditions be imposed as a condition of probation. Over defense objection, the juvenile court adopted the recommendation. "If he's not a gang member, it's pretty easy to abide by non-gang conditions, not wear gang clothing, get tattoos, flash gang signs, things of that nature. Particularly with the school that he's in, which is a school that has both Norteño and Sureño gang members attending, it's best that he not associate with any of these folks other than if he has to in school and with the school related activities, and not get caught up in a lot of that posturing that goes on. So I think the conditions are appropriate."
The court explained the gang conditions to appellant as follows: "[You are] not to wear, display, use or possess any article of clothing, insignia, emblem, button, badge, hat, scarf [or] bandana that you know or your probation officer informs you is evidence of or affiliation with a criminal street gang as that phrase is defined in Penal Code Section 186.22, subdivision (f). You're also not to wear, display, use or possess any other indicia that you know or the probation officer informs you is indicia to represent affiliation with or membership in a criminal street gang. That includes things like tattoos, pictures on cell phones, iPods, iTouches, things like that. That also includes any other indicia that you know or your probation officer informs you represents affiliation with or membership in a graffiti tagging crew. You're not to associate with any person that you know or your probation officer informs you is a member of a criminal street gang or a graffiti tagging crew, nor are you to hang out at any place known by you or your probation officer informs you is an area of criminal street gang related activity or graffiti tagging related activity." The conditions were memorialized in a written probation order.
DISCUSSION
I.
Appellant argues that the court's imposition of gang conditions was not permissible absent some indication that the offense was gang related or that he was associating with gang members. We disagree.
When placing a ward on probation, a juvenile 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); see In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) A court asserting jurisdiction over a minor stands in the shoes of the parents, and is allowed greater discretion in formulating the terms of probation than in adult cases. (In re Victor L. (2010) 182 Cal.App.4th 902, 909-910 (Victor L.).) Because juveniles are more in need of guidance and supervision than adults, and because their constitutional rights are more circumscribed, a probation condition that would be unconstitutional if imposed on an adult may be permissible in a juvenile case. (Ibid.)
Despite the broader discretion afforded in juvenile cases, probation conditions must still be judged by the three-part standard formulated in People v. Lent (1975) 15 Cal.3d 481, 486. (In re D.G. (2010) 187 Cal.App.4th 47, 52.) Under this standard, " 'A condition of probation will not be held invalid unless 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.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.' " (Id. at pp. 52-53.) We apply the deferential abuse-of-discretion standard when reviewing a claim that a probation condition is unreasonable under Lent. (See People v. Olguin (2008) 45 Cal.4th 375, 379; People v. Lopez (1998) 66 Cal.App.4th 615, 624.)
Here, the gang conditions were permissible because they were reasonably related to future criminality. Although appellant denied that he was a member of any gang, he had a history of vandalizing property in the company of other youths and his father believed he was a "follower and 'will do something without thinking about it.' " Appellant's father, with whom appellant would be residing, had tattoos suggesting affiliation with the Norteños, and though he denied any current involvement in that gang, it appeared that he had not been truthful when discussing other subjects with the probation officer.
In light of these circumstances, and given its knowledge that appellant's school was attended by members of the Norteños and the rival Sureños gang, the court reasonably concluded there was "no logical or beneficial reason . . . to wait until [appellant] has become entrenched with a gang, only then to apply mere prophylactic remedies." (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1501.) "Where a court entertains genuine concerns that the minor is in danger of falling under the influence of a street gang, an order directing a minor to refrain from gang association is a reasonable preventive measure in avoiding future criminality and setting the minor on a productive course. Evidence of current gang membership is not a prerequisite to imposition of conditions designed to steer minors from this destructive path." (Id. at p. 1502.)
II.
"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.]" (Sheena K., supra, 40 Cal.4th at p. 890.) The fifth gang-related probation condition imposed by the court prohibits appellant being present "at any place known by you to be or the probation officer informs you is an area of criminal street gang-related activity or graffiti tagging-related activity." Appellant claims this condition is void for vagueness.
"Tagging" is the term for marking walls and surfaces with graffiti. (In re Angel R. (2008) 163 Cal.App.4th 905, 910, fn. 6.)
According to appellant, the phrase "criminal street gang-related activity or graffiti tagging-related activity" it is not sufficiently precise to describe the geographical areas he is prohibited from visiting. He submits that the condition could conceivably include a number of public areas such as parks, libraries, swimming pools, baseball stadiums and schools when gang members are or have been present, even if no gang- or tagging-related activity is currently occurring. Appellant suggests that the condition be modified to include only those places that have been specifically designated by the probation officer as areas of gang-related or graffiti tagging-related activity.
Appellant relies primarily on Victor L., supra, 182 Cal.App.4th 902, in which another division of this court considered a challenge to a probation condition requiring the minor to stay away from areas "known by [him] for gang-related activity." (Id. at p. 913.) The court concluded that as phrased, the condition "was not sufficiently clear to put [the minor] on notice of the prohibited conduct" (id. at p. 916) and did not "provide notice of what areas he may not frequent or what types of activities he must shun" (id. at p. 914). In that court's view, "The ambiguity of the chosen language conjures up divergent possible definitions of the term 'gang-related activity,' and reasonable minds may differ as to precisely which 'areas' would come within the condition's purview." (Id. at p. 916.)
The court's solution in Victor L. was to modify the challenged probation condition so that the probation officer would have the power to delineate the prohibited areas of gang activity. As modified by the appellate court, the condition provided: " 'The Minor shall not be in any areas where gang members are know by Minor to meet or get together, or areas known by Minor for gang-related activity (or specified by his probation officer as involving gang-related activity), nor shall he participate in any gang activity." (Victor L., supra, 182 Cal.App.4th at pp. 931-932.) This language is essentially the same as the probation condition now challenged by appellant. Thus, the decision in Victor L. does not support appellant's claim that the stay-away condition in his case is unconstitutionally vague as currently written. (See also People v. Barajas (2011) 198 Cal.App.4th 748, 754-760 (Barajas); People v. Leon (2010) 181 Cal.App.4th 943, 952.)
"What the modification [in Victor L.] did was to authorize the probation officer to specify (presumably to [the minor]) what areas he should avoid. We do not understand the modification to require the probation officer to do so or to preclude proving a violation by showing that [the minor] learned the nature of an area from a reliable source other than his probation officer. The modification simply described one method by which the probationer could learn that an area was prohibited." (Barajas, supra, 198 Cal.App.4th at p. 759.)
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Nor are we persuaded by appellant's claim that he lacks any practical way of identifying the areas he must avoid. The challenged probation condition's reference to areas of "street gang-related or tagging-related activity" is reasonably understood as referring to specific sites where gang and tagging activity commonly occurs or is actually occurring. Given the apparent purpose of the condition, namely, "to prevent [appellant] from coming into close contact with gang members, even short of voluntary association or participation in their activities" (Victor L., supra, 182 Cal.App.4th at p. 915), the phrase "street gang-related or tagging-related activity" cannot be reasonably construed to include the entire territory claimed by a gang or tagging crew, places where a gang crime has merely occurred in the past, or public places where gang members or taggers happen to be present for an innocent purpose (a grocery store where a gang member happens to be purchasing food, a library where a gang member is checking out a book for school, a municipal pool where a gang member is swimming with his family, a history class attended by a gang member). "[I]n evaluating challenges based on claims of vagueness, . . . '[t]he particular context is all important.' " (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.)
Because we do not find the challenged probation condition to be unconstitutionally vague, we do not discuss the People's proposed modification.
DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
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SIMONS, Acting P. J.
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BRUINIERS, J.