In re Jesse A.

Filed 12/22/09 In re Jesse A. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In July 2008, a petition was filed alleging that Jesse A., a minor (17 years old at the time of the petitions filing), came within the provisions of Welfare and Institutions Code section 602. The petition charged the minor with one count of second degree robbery and alleged that he personally used a knife in the commission of the offense. The petition also alleged that the minor committed the offense for the benefit of a criminal street gang. After a contested hearing, the court sustained the petition and found the personal-use allegation true. On the Peoples motion, it dismissed the gang allegation. The minor was declared a ward and placed on probation subject to various terms and conditions.

On appeal, the minor challenges six of the conditions, claiming that five of them are overly broad and unconstitutional and should be modified in a manner that would allow them to pass constitutional muster. The minor argues that the sixth conditionproscribing the minor from frequenting any locations of gang activity or participating in any such activityis constitutionally infirm and should be stricken.

We conclude that each of the challenged probation conditions must be modified. We will order Probation Condition Nos. 14, 17, 18, 19, 20, and 21 modified in accordance with specific language that we indicate below. We will affirm the probation order as so modified.

FACTS

At about 1:00 p.m. on June 12, 2008, Francisco V. and his two friends, Gema C. and Laura H., were walking home from Yerba Buena High School after the last day of the school year. They were going to Franciscos house to pick up some towels and clothes for swimming. About one block from the school, four or five males approached them from behind. They yelled things like scrappa and bad words at the three of them. They also referred to Norte, apparently indicating their affiliation with the Norteo criminal street gang. The males surrounded them and one said that they wanted Franciscos Nike tennis shoes. Francisco did not initially surrender his shoes. One of the malesidentified by Gema as the minorthen pulled a knife and pointed it at Franciscos stomach at a distance of eight inches or less. Francisco was afraid that he would be beaten up or hurt by the knife and gave his shoes to the minor. The males then ran away with the minor carrying the shoes.

PROCEDURAL BACKGROUND

In July 2008, the Santa Clara County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a), with the juvenile court below, alleging that the minor committed a felony, namely, second degree robbery in violation of Penal Code sections 211-212.5, subdivision (c),[1] by taking tennis shoes from the victim, Francisco V., by means of force and fear. It was further alleged that the minor used a deadly weapon in the commission of the offense ( 12022, subd. (b)(1)). The petition also contained the allegation that the minor committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1) (B)).

After a jurisdictional hearing, the court sustained the petition and found that the minor committed the offense by personally using a knife. On the Peoples motion, the court dismissed the gang allegation. The court declared the minor to be a ward of the court, found the maximum period of confinement to be six years, and granted the minor probation, subject to a number of terms and conditions. The minor filed a timely notice of appeal.

DISCUSSION

I. Probation Condition Nos. 14, 17,18, 19, 20, and 21

A. Forfeiture

The minor challenges six probation conditions generally on the grounds that they are constitutionally overly broad and vague. The probation conditions, described in more detail below, generally concern prohibitions involving alcohol and drugs (Condition No. 14); association with convicted persons and gang members (Condition No. 17); participation in gang activity and frequenting areas where gang-related activity occurs (Condition No. 18); dangerous and deadly weapons (Condition No. 19); gang insignia and paraphernalia (Condition No. 20); and gang-related tattoos (Condition No. 21).

The minor here did not object to these probation conditions. He, however, did not forfeit his constitutional challenges to them. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.) [constitutional challenge to probation condition involving pure questions of law not forfeited despite failure to assert it in trial court].) And the Attorney General does not cite any authority to the contrary to suggest that the challenges are forfeited. Accordingly, since we believe the minors constitutional challenges to the probation conditions are pure questions of law, under the authority of Sheena K., we will address the merits of each of the minors claims below.

B. Probation Condition No. 14

Probation Condition No. 14 prohibits the minor from using, possessing, or being under the influence of alcohol or drugs. The minor contends that the condition is vague because it prohibits possession of illegal substances regardless of whether the minor knows of their illegal nature. He also challenges the condition because it prohibits possession even if it occurs unknowingly. The minor suggests that this court modify the language of the condition to prohibit (1) knowing possession of alcohol or illegal substances, and (2) use, possession, or being under the influence of substances he knows to be or is told by his probation officer to be controlled or illegal substances.

The Attorney General indicates that he does not contest that the condition (and other challenged probation conditions discussed post)should be modified to include the element of the minors knowledge. In stating this position, he cites Sheena K. (Sheena K., supra, 40 Cal.4th at pp. 891-892.)

In Sheena K., our high court considered a challenge to a probation condition under which the juvenile offender was prohibited from associat[ing] with anyone disapproved of by probation. (Sheena K., supra, 40 Cal.4th at p. 878.) As the court explained generally, 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.] A probation condition that imposes limitations on a persons constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.] (Id. at p. 890.) The court concluded therefore with respect to the probation condition before it, in the absence of an express requirement of knowledge, the probation condition imposed upon [the juvenile] is unconstitutionally vague. Both as orally pronounced by the juvenile court, and as set forth in the minute order, the probation condition did not notify [the juvenile] in advance with whom she might not associate through any reference to persons whom [she] knew to be disapproved of by her probation officer. (Id. at pp. 891-892, fn. omitted.) The court concluded that the Court of Appeal had correctly found that modification to impose an explicit knowledge requirement is necessary to render the condition constitutional. (Id. at p. 892.)

We conclude that Probation Condition No. 14 is constitutionally infirm because it fails to contain an express knowledge requirement. (Sheena K., supra, 40 Cal.4th at pp. 891-892.) Such a condition of express knowledge is not one that should be left to implication. (See People v. ONeil (2008) 165 Cal.App.4th 1351, 1357.) An appellate court is empowered to modify a probation condition in order to render it constitutional. (Sheena K., at p. 892.) Accordingly, we will order that the condition be modified to read as follows (italicized language showing change): 14) That the minor not knowingly use, possess, or be under the influence of alcohol or any form of controlled or illegal substance without the legal right to do so and submit to drug and substance abuse testing as directed by the Probation Officer.[2]

C. Probation Condition No. 17

Probation Condition No. 17 prohibits the minor from associat[ing] with any known probationer, parolee, or gang member. The minor asserts that the condition is invalid because it proscribes his association with certain classes of individuals, irrespective of whether he knows of their status as probationers, parolees, or gang members. In support of his position, the minor cites our recent decision in In re H. C. (2009) 175 Cal.App.4th 1067 (H. C.). The Attorney General concedes that the condition should include a knowledge element.

In H. C., we addressed the constitutionality of an identical condition that proscribed the minors association with any known probationer, parolee, or gang member. (H. C., supra, 175 Cal.App.4th at p. 1071.) We noted (id. at pp. 1070-1071)  that in two cases, similar probation conditions had been held unconstitutional because they contained no requirement that the probationer have actual knowledge of the status of the person with whom he was prohibited from associating. (See People v. Lopez (1998) 66 Cal.App.4th 615, 629 [condition prohibiting association with gang members, irrespective of probationers knowledge of persons gang affiliation, overly broad and impermissibly vague]; People v. Garcia (1993) 19 Cal.App.4th 97, 102 [condition prohibiting association with drug users and sellers, felons, and exfelons, regardless of probationers knowledge of persons status, held invalid]; see also People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [probation condition prohibiting association with persons under 18 held vague; modified to prohibit association only where the defendant knows or reasonably should know that person is under 18].) Accordingly, we held the condition to be constitutionally infirm and ordered that it be modified to prohibit the minors association with persons known to [the minor]  to be probationers, parolees, or gang members. (H. C., at p. 1072.)

Therefore, in accordance with Sheena K., supra, 40 Cal.4th at page 892, and H. C., supra, 175 Cal.App.4th at page 1072, we will order that Probation Condition No. 17 be modified to read as follows (italicized language showing change): 17) That the minor not knowingly associate with any probationer, parolee, or member of a criminal street gang.

D. Probation Condition No. 18

Probation Condition No. 18 prohibits the minor from participat[ing] in any gang activity and from frequent[ing] any areas of gang[-]related activity. Relying on H. C., supra, 175 Cal.App.4th 1067, the minor contends that the condition is fatally vague and overbroad. He argues (1) that the term area is not defined; (2) depending on the definition of area, the condition might restrict the minor from being present at his place of work or residence; (3) the condition impermissibly restricts his right to travel; (4) the term gang-related activity is not defined; and (5) the term frequent is vague insofar as it does not give notice to the minor of how many times he must be present in the prohibited area before he will be deemed to have frequented it.

The Attorney General concedes that the condition is problematic. However, rather than striking it as urged by the minor, the Attorney General argues that the matter should be remanded to the trial court for appropriate modification of the condition.

In H. C., supra, 175 Cal.App.4th 1067, we addressed a challenge to a condition with wording identical to that found here in Condition No. 18. (See id. at p. 1072.) We observed that [f]requenting any areas of gang related activity is not so much overbroad as obscure. . . . How the District Attorney would prove that someone habitually visited an area of gang activity challenges the imagination. (Ibid.) We concluded further that the term area was uncertain because [a]n area with gang related activity might be, in some instances, an entire district or town. It would be altogether preferable to name the actual geographic area that would be prohibited to the minor and then to except from that certain kinds of travel, that is, to school or to work. At the very least the condition . . . should be revised to say that the minor not visit any area known to him to be a place of gang related activity. (Ibid.)  Based upon these deficiencies, we concluded that the probation condition could not survive as worded and required modification. (Id. at p. 1073.)

Based upon the foregoing, we will order Probation Condition No. 18 modified to read as follows (italicized language showing change): 18) That the minor not remain in specific locations where he knows that activity involving criminal street gangs occurs, including such locations as may be specifically identified by the probation department, and not participate in any activity he knows to be criminal street gang activity.

E. Probation Condition No. 19

Probation Condition No. 19 proscribes the minors ownership, possession, or use of dangerous or deadly weapons and prohibits the minor from remaining in any vehicle, building, or in the presence of any person where such a weapon exists. The minor argues that the condition is invalid because it impermissibly curtails his freedom of association in that it prevents him from contacting persons where a dangerous or deadly weapon exists, even if he is unaware of its existence. He also challenges the condition because it contains no knowledge requirement. The Attorney General concedes that the condition must be modified to include a knowledge element.

For the reasons discussed with respect to Probation Condition Nos. 14 and 17, the weapons probation condition here is invalid because it fails to include as an element that the minor have actual knowledge of the presence of the dangerous or deadly weapon. (Sheena K., supra, 40 Cal.4th at pp. 891-892.) Therefore, we will order that Probation Condition No. 19 be modified to read as follows (italicized language showing change): 19) That the minor not knowingly own, use, or possess any dangerous or deadly weapons, and not remain in any building, vehicle, or in the presence of any person where the minor knows that dangerous or deadly weapons exist.

F. Probation Condition No. 20

Probation Condition No. 20 prohibits the minor from possessing, displaying, or wearing gang insignias, logos, or paraphernalia. The minor argues that the condition is vague and overly broad because it does not give him adequate notice of what may constitute an item that . . . identifies any gang membership or affiliation. He suggests that the condition be modified to prohibit him from knowingly possessing, wearing, or displaying articles that are gang-related where they are so identified by his probation officer and that identification is communicated to the minor. The Attorney General concedes that the condition must be modified, although his suggested language to modify the condition differs from the minors in that it does not include as an element that the probation officer specifically describe the items that identify gang membership or affiliation.[3]

Prohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders. [Citations.] Because [a]ssociation with gang members is the first step to involvement in gang activity, such conditions have been found to be reasonably designed to prevent future criminal behavior. [Citation.] (People v. Lopez, supra, 66 Cal.App.4th at p. 624, fn. omitted.) We agree that the condition must include an element of actual knowledge. (Sheena K., supra, 40 Cal.4th at pp. 891-892.) We also deem it necessary and appropriate that the term gang be more fully defined. Accordingly, we will order that Probation Condition No. 20 be modified to read as follows (italicized language showing change): 20) That the minor not possess, display or wear any insignia, clothing, logos, or paraphernalia which he knows identifies any criminal street gang membership or affiliation.

G. Probation Condition No. 21

Probation Condition No. 21 prohibits the minor from obtain[ing] any gang-related tattoos. The minor contends that the condition is vague and overly broad because it does not provide notice to him as to what might constitute gang-related tattoos. He suggests that the condition be modified to require advance approval from the minors probation officer before the minor obtains any tattoos. The Attorney General concedes that the condition should be modified but disagrees with the minor on the substance of the revision, instead suggesting that the condition state that the minor should not knowingly receive any gang-related tattoos.

We agree that the condition should be modified to give the minor sufficient notice of the nature of the proscribed conduct. While the language suggested by the Attorney General is in this instance less restrictive, since the minor has stipulated that his probation officer may be vested with the discretion of determining whether the minors proposed tattoos are objectionable, we will modify Probation Condition No. 21 to provide for this more restrictive language (italicized language showing change): 21) That the minor not obtain any tattoos without first obtaining approval of his probation officer.

DISPOSITION

The order granting probation is modified to provide that: (a) Probation Condition No. 14 shall read: 14) That the minor not knowingly use, possess, or be under the influence of alcohol or any form of controlled or illegal substance without the legal right to do so and submit to drug and substance abuse testing as directed by the Probation Officer; (b) Probation Condition No. 17 shall read: 17) That the minor not knowingly associate with any probationer, parolee, or member of a criminal street gang; (c) Probation Condition No. 18 shall read: 18) That the minor not remain in specific locations where he knows that activity involving criminal street gangs occurs, including such locations as may be specifically identified by the probation department,and not participate in any activity he knows to be criminal street gang activity; (d) Probation Condition No. 19 shall read: 19) That the minor not knowingly own, use, or possess any dangerous or deadly weapons, and not remain in any building, vehicle, or in the presence of any person where the minor knows that dangerous or deadly weapons exist; (e) Probation Condition No. 20 shall read: 20) That the minor not possess, display or wear any insignia, clothing, logos, or paraphernalia which he knowsidentifies any criminal street gang membership or affiliation; and (f) Probation Condition No. 21 shall read: 21) That the minor not obtain any tattoos without first obtaining approval of his probation officer.  

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

McAdams, J.

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[1] All further statutory references are to the Penal Code unless otherwise noted.

2 We do not agree with the minor that the probation condition should also be modified to include the requirement that the minor either know the substances to be in his possession to be controlled or illegal or to have been told this fact by his probation officer. We believe that the modification to the condition that we have ordered here sufficiently includes a knowledge element to satisfy constitutional standards. (See People v. Peck (1996) 52 Cal.App.4th 351, 362-364 [upholding probation condition prohibiting use or possession of controlled substances].)

[3] The minor did not file a reply brief. We therefore do not have the benefit of his response to the Attorney Generals position with respect to Probation Condition No. 20as well as certain other challenged conditionsthat includes a concession that the condition must be modified but a disagreement at least in part with the substance of the minors suggested modifications.