In re Phillip M.

Filed 8/27/07 In re Phillip M. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Rudolph A. Diaz, Judge. Affirmed.

Holly J. Jackson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Phillip M. appeals from an order of the juvenile court imposing a condition of probation prohibiting him from participating in gang activity, including social events, after the juvenile court found that appellant came within the provisions of Welfare and Institutions Code section 602 because he committed misdemeanor vandalism. (Pen. Code, 594, subd. (a).) He contends that the juvenile court abused its discretion by imposing the probation condition because the circumstances of appellants offense and his background did not indicate he was connected with gangs. He also asserts the probation condition is vague and overbroad. We affirm.

FACTS

On March 23, 2006, during class time, a teacher at a high school in Montebello noticed appellant writing on a fence with a green felt-tipped marker in an area off limits to students. The teacher called a security guard, who apprehended appellant. Appellant wrote Bubs on the fence, which he admitted was his nickname.

DISCUSSION

The probation condition withstands constitutional challenge

1. Appellant forfeited his right to complain that the probation condition is unreasonable

Appellant contends that probation condition 15A, that he not participate in any type of gang activity, including social events, is unreasonable because there was no testimony mentioning gangs; there was no inference appellant was in a gang area or writing on the fence to facilitate some gang purpose; and there was not a single reference in the probation report to current or past gang activity by appellant.[1]

The Peoples contention that appellant forfeited his right to challenge probation condition 15A on the grounds that it is unreasonable, is well taken. An adult or juveniles failure to object in the trial court to a probation condition on the basis that it is unreasonable forfeits that claim on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 882-885.) The trial court is in the best position to review and modify a probation condition premised upon the facts and circumstances of the case, and judicial efficiency is served by applying the forfeiture concept rather than remanding for resentencing. (Id. at p. 885.)

Accordingly, appellants appeal based on the lack of reasonableness is forfeited.

2. The probation condition does not impermissibly infringe on appellantsrightto association and to travel

Appellant also contends that probation condition 15A infringes on his constitutional right to association and to travel. He claims it is vague because it does not identify with particularity any location which appellant would know to be off limits, and prohibits his association with gang members, whether or not he knows they are involved in gang activities. He also contends the probation condition is overbroad because social events involving gang activities include entire neighborhoods and parks.

A vagueness challenge is based on the due process concept of fair warning. (In re Sheena K., supra, 40 Cal.4th at p. 890.) Therefore, 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. (Ibid.) Probation conditions are overbroad if they prohibit the defendant from associating with persons other than those targeted by the restriction. (People v. Lopez (1998) 66 Cal.App.4th 615, 628-629 [probation condition must contain element of knowledge of gang membership].)

In In re Sheena K., our Supreme Court determined that a condition of probation that the juvenile not associate with anyone disapproved of by probation, was unconstitutionally vague and overbroad because it did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer. (In reSheena K., supra, 40 Cal.4th at p. 891.) Thus, the probation condition gave the probation officer the power to virtually preclude the defendants association with anyone, including grocery clerks, mail carriers, and health care providers. (Id. at p. 890.) Modification of the probation condition to require that defendant have knowledge of who was disapproved of by her probation officer, cured the infringement of the defendants constitutional rights. (Id. at p. 892.)

Here, probation condition 15A mandates that [appellant] cannot participate in any type of gang activities or tagging activities, and that includes social events. Appellant has expressed no concern with the prohibition on tagging activities, but claims that probation condition 15A lacks an element of knowledge on behalf of appellant regarding gang activities. The People urge that a knowledge component is contained in the challenged condition because appellant was ordered in probation condition 15 not to associate with anyone that you know is disapproved of by your parents or your probation officer, or anyone that you know is a tagger or a member of any tagging crew.

We find that probation condition 15A is not vague or overbroad. It prohibits appellant from participating in gang activity, similar in form to the requirement that he not engage in any delinquent behavior, probation condition 6. A reasonable reading of the condition is that appellant is required to refrain from participating in known gang activity. Unlike the impermissible probation condition in In re Sheena K., which did not specify particular persons or activities, or require knowledge on the part of the defendant of persons prohibited by the probation officer, the challenged probation condition precludes appellant from participating in a specific, known activity.

Appellants argument, raised in his reply brief, that probation condition 15 is subject to review without objection because it is in excess of jurisdiction and unauthorized, has already been rejected by our Supreme Court. (In re Sheena K., supra, 40 Cal.4th at p. 882, fn. 3 [the narrow class of cases resulting in an unauthorized sentence subject to correction by the reviewing court despite the absence of an objection, involved the trial courts omission or erroneous imposition of a particular sentence or term required by law].)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, P. J.

BOREN

We concur:

______________________, J.

ASHMANN-GERST

______________________, J.

CHAVEZ

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Analysis and review provided by La Mesa Property line attorney.

[1] Specifically, probation condition 15A restricted appellant from participating in any type of gang activities or tagging activities, and that includes social events.