Opinion
H046010
09-11-2019
In re L.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.M., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18JV000586)
L.M. appeals from an order of the juvenile court continuing a previously declared wardship. He challenges the probation condition prohibiting him from participating in "any gang activity" as unconstitutionally vague. We affirm the order.
I. Statement of the Case
On August 3, 2017, the Santa Cruz County District Attorney filed a juvenile court wardship petition (Welf. & Inst. Code, former § 602). The petition alleged that appellant committed reckless driving of a vehicle with willful disregard for the safety of others (Veh. Code, § 23105 - count 1), misdemeanor driving without a license (Veh. Code, § 12500, subd. (a) - count 2), and the infraction of driving without evidence of financial responsibility (Veh. Code, § 16028, subd. (a) - count 3). About two weeks later, appellant admitted counts 1 and 2. The juvenile court sustained the petition and transferred the case to Monterey County for disposition.
In October 2017, the juvenile court declared appellant a ward of the court, placed him on probation, and ordered home placement.
On April 25, 2018, the probation officer filed a petition to revoke probation (Welf. & Inst. Code, § 777). A day later, appellant admitted the allegations and the juvenile court sustained the petition. The juvenile court continued appellant as a ward of the court on modified terms and conditions.
On June 25, 2018, the Santa Cruz County District Attorney's Office filed a juvenile court wardship petition (Welf. & Inst. Code, former § 602), which alleged that appellant committed misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)). The following day, appellant admitted the allegations. The juvenile court sustained the petition and transferred the case to Monterey County.
On June 29, 2018, the Monterey County District Attorney's Office filed an amended petition (Welf. & Inst. Code, § 777, subd. (a)). On July 2, 2018, appellant admitted the allegations and the juvenile court sustained the petition.
On July 17, 2018, the juvenile court continued appellant as a ward of the court, ordered him to be committed to Juvenile Hall for one year, and placed him on probation for a maximum period of three years and six months.
II. Discussion
Appellant contends that the probation condition prohibiting him from knowingly participating in any gang activity violates his due process rights, because it is unconstitutionally vague.
The juvenile court imposed the following probation condition: "You shall not visit or remain in any specific locations known by you to be identified as gang gathering areas, areas where gang members or associates are congregating or areas specified by your Probation Officer as involving gang related activity, nor shall you knowingly participate in any gang activity. For the purpose of this condition, 'gang' refers to a criminal street gang as defined by Penal Code section 186.22, subdivision (f)."
" '[T]he underpinning of a vagueness challenge is the due process concept of "fair warning." [Citation.] The rule of fair warning consists of "the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders" [citation], protections that are "embodied in the due process clauses of the federal and California Constitutions." ' [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.' " ' [Citation.] '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.]' [Citation.]" (People v. Smith (2017) 8 Cal.App.5th 977, 986.)
We review the constitutionality of a probation condition de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
Citing In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.), appellant argues that the condition is not sufficiently clear to put him on notice of what activity is gang-related. He claims that the condition might have been "imposed with the intent to prohibit activity that is otherwise lawful and does not involve a gang member, gang area, or gang-related item. If that were so, then the prohibition would encompass a world of activity." Thus, he asserts that since the term "gang activity" lacks any specificity, he does not know which activities he must avoid and the challenged condition encourages arbitrary law enforcement.
Victor L. does not support appellant's position. In that case, the appellant challenged a probation condition that he "stay away from 'areas known by [him] for gang-related activity' " on the ground that it was unconstitutionally vague. (Victor L., supra, 182 Cal.App.4th at pp. 913-914.) The reviewing court acknowledged that "the word 'activity' is one of surpassing breadth" and that the condition "could be misapplied by law enforcement unless further specification were provided." (Id. at p. 915.) The court further stated that " 'gang-related activity' restriction appears to have been intentionally designed to banish juvenile gang members from a broad category of locations, not simply areas where gang members 'meet' or 'get together.' " (Ibid.) Thus, the court modified the condition to provide the appellant with notice of the areas he was required to avoid. (Id. at pp. 931-932.) In Victor L., the appellant did not challenge nor did the court consider the portion of the probation condition prohibiting him from " 'participat[ing] in any gang activity.' " (Id. at pp. 913, fn. 7, 913-919.)
In re Oswaldo R. (2017) 11 Cal.App.5th 409 (Oswaldo R.) considered the issue before us. The appellant in Oswaldo R. challenged the probation condition that he not " 'participate in any gang-related activity' " and made the same argument as does appellant in the present case. (Id. at pp. 412, 416.) The reviewing court noted that the condition was imposed with reference to Penal Code section 186.22, subdivision (f), which defined a " 'criminal street gang,' " and that other provisions of Penal Code section 186.22 further defined references to the word "gang" in the probation conditions. (Oswaldo R., at p. 417.) The court concluded: "Considered in context, it is apparent that the 'gang-related activity' referred to in the probation condition is activity facilitating or involving the commission of crimes for the benefit of or in association with a criminal street gang. The phrase cannot reasonably be understood as applying to lawful activities that happen to take place where gang members are present." (Id. at p. 418.)
Appellant argues that the holding is Oswaldo R. is "somewhat misguided." He points out that this court is not bound by the holding and requests that the probation condition be modified. Since we agree with the analysis and holding in Oswaldo R., we decline to do so.
III. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.