In re A. G.,

















Filed 7/28/10 Opin. on rehrg.









OPINION
ON REHEARING



CERTIFIED
FOR PUBLICATION



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

In re A. G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. A. G., Defendant and Appellant.	D053991 (Super. Ct. No. J220062)

STORY CONTINUE FROM
PART I….

With exceptions not pertinent here, it is "[w]ithout a doubt [that] a juvenile in a delinquency matter is entitled
to the same constitutional guarantees of due process as those accorded an adult
criminal defendant. ( >In re Gault
(1967) 387 U.S. 1, 30-31.) This includes
constitutionally adequate notice of the charges." (In re
Jesse P. (1992) 3 Cal.App.4th 1177, 1182.)
As further observed by the Jesse
P. court, " '[t]he
"preeminent" due process principle is that one accused of a crime
must be "informed of the nature and cause of the accusation." (U.S. Const., Amend. VI.)
Due process of law requires that an accused be advised of the charges
against him so that he has a reasonable opportunity to prepare and present his
defense and not be taken by surprise by evidence offered at his trial.' [Quoting People
v. Jones (1990) 51 Cal.3d 294, 317.)"
(In re Jesse P., at p. 1182; accord, In
re Jonathan T. (2008) 166 Cal.App.4th 474, 482-484 [court sustained
petition against a juvenile that charged home invasion robbery under Pen. Code,
§ 211 but failed adequately to allege element of "acting in
concert" as Pen. Code, § 213 enhancement; held: due process precluded
court from imposing term of confinement premised on acting in concert
enhancement].)

In
this case, the amended petition alleged A. G. violated San Diego
Municipal Code section 58.0102, not that she had violated San Diego Ordinance
No. 0‑18416. Because section
58.0102 of the San Diego Municipal Code omitted an important exception to the
curfew law's proscriptions, the charging document necessarily deprived
A. G. of the required notice of the elements of the offense with which she
was charged.^[1] Because an essential component of due process
is that a penal statute must permit "[o]rdinary people of common intelligence
. . . to be able to understand what is prohibited by the statute and
what may be done without violating its provisions" ( >People v. Ellison (1998) 68 Cal.App.4th 203, 207), and A. G. was
charged with violating an statute that in fact did not permit a person of
ordinary intelligence to know what conduct could be engaged in without
violating its provisions, we conclude the discrepancy between the
ordinance and the codification, when coupled with the charge contained in the
petition, violated A. G.'s due process rights.

DISPOSITION

The true
finding that A. G. violated San Diego Municipal Code section 58.0102 is
reversed. In all other respects the
judgment is affirmed.

CERTIFIED FOR PUBLICATION









McDONALD, J.

WE CONCUR:







HUFFMAN, Acting P. J.







NARES,
J.

McDonald, J., concurring.

I take the
unusual step of writing a concurring opinion even though I have also authored
the majority opinion. I believe the
majority opinion accurately summarizes the law and properly applies that law to
the narrow issues resolved by the majority opinion, and agree the true finding
that A. G. violated San Diego Municipal Code section 58.0102 must be
reversed. However, I believe there is an
additional and significant basis for reversing the true finding that is not
addressed by the majority opinion: whether the San Diego
curfew ordinance is invalid because it violates the equal protection clauses of
the federal and state Constitutions. I
write separately to explain my view that the San Diego
curfew ordinance is invalid under the equal protection clauses of the federal
and state Constitutions because it burdens a minor's First Amendment rights to
speech and association without being narrowly tailored to serve the state
interest.

A. A. G.'s Facial Challenge

A. G.
asserts the San Diego curfew ordinance is invalid under the rationale employed
by Nunez by Nunez v. City of San Diego
(9th Cir. 1997) 114 F.3d 935 (Nunez)
in which the court invalidated San Diego's previous curfew law; she argues the
current iteration of the San Diego curfew ordinance continues to offend the
equal protection clause. The People
counter that the San Diego curfew
ordinance is valid, under the rationale of >Qutb v. Strauss (5th Cir. 1993) 11 F.3d 488 ( >Qutb), because the current
version of the San Diego curfew
ordinance contains exceptions that adequately safeguard protected conduct.

The Appropriate Standard
of Review

The equal protection clause "is essentially a
direction that all persons similarly situated should be treated alike." (City of
Cleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432, 439.) Only if the
challenged government action classifies or distinguishes between two or more
relevant groups must a court conduct an equal protection inquiry. (Brennan
v. Stewart (5th Cir. 1988) 834 F.2d 1248, 1257.) Here, the San Diego curfew ordinance indisputably distinguishes between
classes of individuals on the basis of age, and because the San Diego curfew ordinance distinguishes between two groups, I
analyze the San Diego curfew ordinance under the equal protection clause.

Curfew
ordinances of varying configurations have a long
history, both in California (see, e.g., Alves v. Justice Court
(1957) 148 Cal.App.2d 419) and in other jurisdictions around the country (see
Note, Juvenile Curfews and the Major
Confusion over Minor Rights (2005) 118 Harv. L.
Rev. 2400, 2402), and numerous courts in both the state and federal systems
have addressed constitutional issues similar to the issues implicated by the San Diego curfew ordinance. (See, e.g., State v. J.P. (Fla. 2005) 907 So.2d 1101; >Treacy v. Municipality of Anchorage (Alaska 2004) 91 P.3d 252; >Ramos v. Town of Vernon (2d Cir. 2003)
353 F.3d 171 (Ramos); >Hutchins v. District of Columbia (D.C.
Cir. 1999) 188 F.3d 531 (Hutchins); >Nunez, supra, 114 F.3d 935; Qutb >, supra, 11 F.3d 488.) The courts that have analyzed the
constitutionality of the curfew ordinance before them
have disagreed over the appropriate level of scrutiny to apply: some courts
appear to have applied the deferential "rational basis" level of
scrutiny (see, e.g., Sale ex rel. Sale v. Goldman (W.Va. 2000) 539 S.E.2d 446, 456; >People v. Walton (1945) 70 Cal.App.2d
Supp. 862, 866-867); others have applied the so-called "intermediate
scrutiny" approach (see, e.g.,
Hodgkins ex rel. Hodgkins v. Peterson (7th Cir. 2004) 355 F.3d
1048, 1057 (Hodgkins); > Ramos, supra, 353 F.3d at p. 181; >Hutchins, supra, 188 F.3d at p. 541);
and a third group of courts have applied "strict scrutiny" to the
ordinances under review. (See, e.g., >Nunez, supra, 114 F.3d at p. 946; Qutb >, supra, 11 F.3d at p. 492.)

I initially determine the
appropriate level of scrutiny for a court to employ in assessing A. G.'s equal protection challenge to the validity of the San Diego curfew ordinance.
A. G. asserts strict scrutiny is the applicable standard to test
whether the San Diego curfew ordinance violates her right to equal protection
under the federal and state Constitutions, while the People contend we must
reject A. G.'s equal protection challenge if the
classifications established by the San Diego curfew ordinance satisfy the rational basis standard of
review.

Generally,
legislation is presumed to pass constitutional muster and will be sustained
under the Equal Protection Clause if the classification drawn by the statute or
ordinance is rationally related to a legitimate state interest. ( >City of Cleburne, Tex. v. Cleburne Living
Center, supra, 473
U.S. at p. 440.) However, when the classification either disadvantages a "suspect
class" or impinges on a "fundamental right," the ordinance is
subject to strict scrutiny review. (Plyler > v. Doe (1982) 457 U.S. 202, 216-217.) Because age is not a suspect classification, statutory classifications based on
age are ordinarily subject to rational basis review. (Gregory
v. Ashcroft (1991) 501 U.S. 452, 470.)

A. G.
argues, however, that strict scrutiny should apply because the ordinance
infringes on fundamental rights protected by the Constitution: the rights of
free movement, travel, and free speech.
Certainly, there is substantial authority for the proposition that laws
burdening the "constitutional right to travel, or, more precisely, the right of free interstate migration" will
be subjected to strict scrutiny. ( >Attorney General of New York v. Soto-Lopez
(1986) 476 U.S. 898, 902, italics added.)
Although the United States Supreme Court has not explicitly held that >intrastate travel is similarly a
fundamental right protected by the federal
constitution (see >Schor v.
City of Chicago (7th
Cir. 2009) 576
F.3d 775, 780; see also Hutchins, supra, 188
F.3d at p. 537 [right to travel under federal constitution may be limited to
narrower right to "travel across borders, not mere
'locomotion' "),
some California cases have characterized the
right to intrastate travel as
"a basic human right protected
by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a
democratic society and is one of the attributes of personal liberty under
common law." (In re White (1979) 97 Cal.App.3d 141, 148; see also Tobe > v. City of Santa Ana (1995) 9 Cal.4th
1069, 1100-1101.)

Although
cases such as Tobe
and White appear to support the
conclusion that California recognizes a right to intrastate travel for adults that
would be fundamental for equal protection purposes, it is unnecessary in this
case definitively to delineate the extent to which an adult's right to
intrastate travel is a "fundamental right." Even assuming an ordinance directly
restricting movement of an adult would
impinge on that adult's fundamental rights and thereby subject any
classification to strict scrutiny (cf. City
of Chicago v. Morales (1999) 527 U.S. 41, 54), the critical question is
whether a minor has a corresponding
right that would require the same restrictive level of scrutiny. In many situations, minors do >not possess the same constitutional
rights possessed by adults; for example, minors are afforded less freedom of
choice than adults with respect to numerous rights, including marriage, labor,
voting, or access to First Amendment-protected expression of the "adult
entertainment" variety, all of which are (or likely would be deemed)
fundamental when exercised by an adult.
The inherent differences between minors and adults--the minor's
immaturity, vulnerability, and need for parental guidance--have been recognized
by the United States Supreme Court as the basis to justify treating minors
differently from adults under the Federal Constitution. (See Bellotti v. Baird
(1979) 443 U.S. 622, 634-635.) "So
'although children generally are protected by the same constitutional
guarantees . . . as are adults, the State is entitled to adjust its
legal system to account for children's vulnerability' by exercising broader
authority over their activities." ( >Hutchins, supra, 188 F.3d at p. 541,
quoting Bellotti,
supra, 443 U.S. at p. 635.)

Bellotti's rationale is persuasive to the extent a curfew
ordinance constrains a minor from freely engaging in conduct in which an adult
counterpart would be free to engage. For
example, there is little doubt that (even absent a
curfew) police could take into custody a vulnerable eight-year-old child found
alone at night on a city street for the child's own safety and well-being,
while a similar treatment of an adult would be impermissible. Even assuming police may not do the same to a
more mature minor solely under the parens patriae function, an unemancipated
minor still does not have the right to freely "come and go at
will." ( >Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 654.) Indeed, "juveniles, unlike adults, are
always in some form of custody" (Schall v. Martin
(1984) 467 U.S. 253, 265), and they lack an unfettered right to travel because
their right to free movement is limited at least by their parents' authority to
consent to or prohibit movement. (See >Ramos, supra, 353 F.3d at pp.
182-183.) As one court observed when it
elected to apply intermediate scrutiny to a curfew ordinance despite its
impacts on the juvenile's right of movement, "it would be inconsistent to
find a fundamental right here, when the [Supreme] Court has concluded that the
state may intrude upon the 'freedom' of juveniles in a variety of similar
circumstances without implicating fundamental
rights . . . ."
(Hutchins, supra, 188 F.3d at
p. 539.)

New York's highest court recently observed, "[r]ather than categorically applying strict scrutiny to a
curfew which implicates a minor's right to free movement simply because the
same right, if possessed by an adult, would be fundamental,
courts have found that intermediate scrutiny is better suited to address the
complexities of curfew ordinances . . . ." ( >Anonymous v. City of Rochester (2009) 13
N.Y.3d 35, 46-47 (Anonymous).) Selection of
this intermediate scrutiny standard acknowledges the unquestioned precepts that
minors do have rights protected by the Constitution but are concomitantly
subject to greater regulation and control by the state than are adults ( >Ramos, supra, 353 F.3d at
pp. 180-181), yet nevertheless provides a sufficiently probing scrutiny
that reconciles the competing considerations of rigorously protecting constitutional
rights while retaining adequate flexibility to accommodate legislation
carefully crafted to address the particularized situation of minors. (See Hutchins,
supra, 188 F.3d at p. 541.) As
summarized by the Fourth Circuit when it selected intermediate scrutiny to
evaluate an equal protection challenge to a curfew ordinance:

"In light of the case law, two things seem
clear. First, children do possess at
least qualified rights, so an ordinance which restricts their liberty to the
extent that this one does should be subject to more than rational basis
review. Second, because children do not
possess the same rights as adults, the ordinance should be subject to less than
the strictest level of scrutiny. See
Carey v. Population Servs. Int'l, 431 U.S. 678, 693, n. 15 (1977) (plurality
opinion) (when minors are involved the level of scrutiny 'is apparently less
rigorous than the "compelling state interest" test applied to
restrictions on the privacy rights of adults'); [citation]. We thus believe intermediate scrutiny to be
the most appropriate level of review and must determine whether the ordinance
is 'substantially related' to 'important' governmental interests." (Schleifer by Schleifer >v. City of Charlottesville
(4th Cir. 1998) 159 F.3d 843,
847 (Schleifer).)



I agree with the line of authority represented by Schleifer >, and conclude the constitutional validity of the San Diego curfew ordinance under an equal protection challenge
should be tested under the intermediate scrutiny standard.

Application
of the Test

The intermediate-scrutiny test, as first articulated in >Central Hudson Gas & Elec. Corp. v.
Public Service Commission of New York (1980) 447 U.S. 557, examines whether
the asserted governmental interest promoted by the law is substantial, whether
the law directly advances the governmental interest asserted, and whether the
law is not more extensive than is necessary to serve that interest. (Id.
at p. 566.) "The court has
clarified that the last part of the test--determining whether the regulation is
not more extensive than 'necessary'--does not require the
government to adopt the least restrictive means, but instead requires only a
'reasonable fit' between the government's purpose and the means chosen to
achieve it. [Citation.]" (Kasky v.
Nike, Inc. (2002) 27 Cal.4th 939, 952.)

The parties do not dispute the
underlying purposes served by the San Diego curfew ordinance include reducing juvenile crime and preventing juveniles from
victimization. The courts have generally recognized
those governmental interests served by curfew ordinances are at least
substantial within the meaning of the
intermediate scrutiny test (see, e.g., Hutchins,
supra, 188 F.3d at p. 542 ["there can be no serious dispute that
protecting the welfare of minors by reducing juvenile crime and victimization
is an important government interest"]) and, indeed, have even been found to be
sufficiently compelling to satisfy the most rigorous of the equal protection
tests. (See, e.g., Nunez, supra, 114 F.3d at p. 947 [concluding City's interest in reducing juvenile crime and juvenile
victimization are compelling interests]; >Qutb, supra, 11 F.3d at p. 492.)

It is the second and third interrelated
prongs of the inquiry--whether the particularized provisions of the curfew
ordinance directly and materially advance those governmental interests (Schleifer,
supra, 159 F.3d at p. 849) and whether those provisions are substantially broader
than necessary to advance those interests (see, e.g., Ward v. Rock Against Racism (1989) 491 U.S. 781, 800)--that have
provided the primary grist for the judicial mill. For those courts that have applied
intermediate scrutiny to assess curfew ordinances, some have concluded the
curfew ordinance satisfies the second prong because they concluded the statute
directly and materially advanced the governmental interests of protecting
juvenile's safety and preventing juvenile crime (see, e.g., >Schleifer,
supra, 159 F.3d at pp. 849-851; >Hutchins, supra, 188 F.3d at pp. 542-545), while other courts appear to
have reached the contrary conclusion.^[2] (See, e.g., Ramos, supra, 353 F.2d at pp. 183-187; Anonymous,
supra, 13 N.Y.3d at pp. 48-51 [concluding there
was no substantial nexus between evils to be remedied and nocturnal
restrictions on minors].)

In
evaluating whether the final two interrelated prongs of the intermediate
scrutiny analysis--whether the fit between the
government's interests and the means chosen to achieve those interests is
direct and not substantially more burdensome than necessary to achieve those
goals--the courts have generally recognized the appropriate focus should be
placed on the exemptions to determine
whether the ban on nighttime activities is substantially more burdensome than
necessary to remedy the evils at which the ban was directed. (See, e.g., >Qutb, supra, 11 F.3d at pp. 493-494; State v. J.P., supra, 907 So.2d at p. 1117 ["[t]he scope of
the exceptions to the curfew is of more significance in assessing whether an
ordinance is narrowly tailored"]; Schleifer >, supra, 159
F.3d at pp. 851-852 [upholding curfew
because its "narrow scope and comprehensive list of [exceptions]
represents the least restrictive means to advance Charlottesville's compelling
interests"].) The courts that have
invalidated curfew ordinances, under either the intermediate scrutiny
analysis or strict scrutiny analysis, have generally
done so because they concluded the exemptions/defenses within the ordinances
did not provide adequate breathing room to accommodate the minor's ability
either to exercise constitutionally protected fundamental rights (such as First
Amendment activities or interstate travel) or to engage in other activities
that carried none of the dangers the curfew law was designed to ameliorate.^[3] (See, e.g., Hodgkins,
supra, 355 F.3d at pp. 1060-1065; >Johnson v. City of Opelousas (5th Cir. 1981) 658 F.2d 1065, 1072-1074 [absence of
exemptions for benign activities fatal to curfew ordinance]; > State v. J.P.,
supra, 907 So.2d at pp. 1117-1119 [failure
to have statutory exceptions for juveniles engaged in " 'legal, wholesome
activities who have the permission of their parents' " was overly
broad]; Nunez, supra, 114 F.3d at pp.
948-951 [failure to exempt minors engaged in legitimate activities with or
without parental permission or to exempt minors who seek to exercise First
Amendment rights during curfew hours was overly broad].) Conversely, those courts that have upheld
curfew ordinances, under either level of scrutiny, have reasoned the exemptions
or defenses provided by the particular ordinance under consideration
significantly narrowed the curfew's operative effect to those nocturnal
activities that involved conduct both unprotected and likely to generate the
dangers at which the statute was targeted.
(See, e.g., Hutchins, supra,
188 F.3d at p. 545, fn. omitted [statute upheld applying intermediate scrutiny
based in part on recognition that "the eight defenses to the curfew
strengthen the relationship between the curfew and its goal of reducing
juvenile crime and victimization by narrowing the scope of the curfew [by] ensur[ing] that the ordinance does not sweep all of a minor's
activities into its ambit but instead focuses on those nocturnal activities
most likely to result in crime or victimization"]; >Qutb, supra, 11 F.3d at p. 494, fn. omitted ["[b]y including the
defenses to a violation of the ordinance, the city has enacted a narrowly drawn
ordinance that allows the city to meet its stated goals while respecting the
rights of the affected minors"]; Schleifer >, supra, 159
F.3d at pp. 851-852; Treacy v. Municipality of Anchorage, supra, 91 P.3d at pp. 267-268 [exemptions for minors engaged in
legitimate activities, including exemption for traveling to and from such
activities, sufficiently tailored to achieve objectives of the curfew].)

It
is the narrowing impact of the exemptions provided by the San Diego curfew ordinance that is pivotal to my conclusion. Under this curfew ordinance, a minor is not
subject to misdemeanor liability if in public while accompanied by the
minor's parent, guardian, or another responsible adult; in a motor vehicle
involved in interstate travel; is involved in an emergency undertaking; or is
on the sidewalk abutting the minor's residence.
(San Diego Ord. No.
0-18416, § 2; San Diego Mun. Code, § 58.0102, subds. (c)(1), (c)(3),
(c)(5), & (c)(6).) Additionally,
as long as the minor does not engage in any detour or stop, the minor is not subject to misdemeanor liability if on an
errand at the direction of the minor's parent, guardian, or other responsible
adult, or is engaged in (or going to or returning home from) an employment
activity, or is engaged in (or going to or returning home from) an official
school, religious, or other recreational activity supervised by adults and
sponsored by the City of San Diego, a civic organization, or another similar
entity that takes responsibility for the minor.
(San Diego Mun. Code, § 58.0102, subds.
(c)(2), (c)(4) & (c)(7).) These
exemptions largely track the exemptions that persuaded other courts to hold the
ordinance sufficiently narrowly tailored to avoid being substantially more burdensome than necessary to achieving the
significant government interests underlying the ordinance.^[4]

However,
because the San Diego curfew ordinance does not exempt certain other types of
conduct, I conclude the particularized provisions of
the curfew ordinance impose constraints substantially broader than necessary to
the direct and material advancement of those governmental interests. My principal concern is that, although
the ordinance nominally protects the minor's ability to "exercise[e] First
Amendment rights protected by the United States Constitution," the
protection is a hollow one because it applies only when the minor is engaged in
those activities after 10:00 p.m. with (or even without) parental permission
but it does not provide for the minor to
travel to or from those activities except when accompanied by an adult.^[5] Additionally, the curfew ordinance contains
no "going to or coming home from" exemption that would permit a minor
safely to pass from one exempt location to another, which circumscribes a
minor's ability to attend activities like an evening study group hosted in a
fellow student's home (or even a social occasion at that home) and limits the
minor to attending those events only when the minor is certain the work (or
festivities) will end with enough time to allow the minor's pre-curfew return
home. Thus, the ordinance sweeps within
its ambit entirely benign (or even laudable) conduct, and the People offer no articulation
of how circumscribing such benign conduct directly and materially furthers the
underlying governmental interests of preventing crime and victimization.

At least
three other courts, applying the same intermediate scrutiny to curfew
ordinances that I employ to the San Diego
curfew ordinance, have concluded the ordinances were invalid. (See Hodgkins,
supra, 355 F.3d 1048; Ramos, supra, 353 F.3d 171; >Anonymous, supra, 13
N.Y.3d 35.) Although the ordinances
considered by those courts contained slight variations, and the rationales of those
courts for invalidating the ordinances contain elements not germane here, they
have expressed at least some level of concern that the ordinance either imposed
restrictions that left inadequate space for the exercise of First Amendment rights (see Hodgkins, supra, 355 F.3d at
p. 1064 [only way for minor to avoid risk of arrest under curfew law while
exercising First Amendment rights was to find adult to accompany him and
"[t]o condition the exercise of First Amendment
rights on the willingness of an adult to chaperone is to curtail them"]),^[6] or that the restrictions imposed on minors
were not limited to those types of conduct that had a reasonably tight nexus to
the underlying goals of the ordinance.
(See, e.g., Ramos, supra, 353
F.3d at pp. 183-187; Anonymous, supra, 13 N.Y.3d at pp. 48-51.) The San Diego curfew ordinance suffers from
both defects: it imposes de facto restrictions on or conditions to the exercise
of First Amendment rights, and it restricts the minor's ability
to engage in activities after 10:00 p.m. in otherwise safe (and potentially
supervised) environments without any suggestion that going directly to (or
returning directly home from) those locales implicates the juvenile crime and
juvenile victimization goals of the ordinance.

I conclude
that, although a more narrowly tailored curfew ordinance is within the
legislative prerogative, the present ordinance "sweeps too broadly and
includes within its ambit" "otherwise innocent and legal conduct by
minors even when they have the permission of their parents." (State v. J.P., supra,
907 So.2d at p. 1117.) I conclude the San Diego curfew ordinance is unconstitutional, and would also
vacate the true finding on this separate ground.







McDONALD, J.









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id=ftn1>

^[1] We
need not decide in this case whether the "going and coming" exception "is descriptive of or an element of the
offense charged [which] must be negatived in the
pleading [citation], [or instead constitutes an] exception[] [which is] not a
part of the statute defining the offense and constitute a matter of defense
[which renders] the pleading . . . sufficient without any allegation
showing that the exception does not exist." (People
v. Mason (1960) 184 Cal.App.2d 317, 356.)
Instead, it is the omission from the Municipal Code of any mention of
the exception that is dispositive, because it
precluded either the prosecution from alleging its nonexistence or the defense
from interposing the exception as an affirmative defense.