Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV33650
McAdams, J.
Appellant A.V., a minor, challenges the imposition of gang-related conditions of probation in a Welfare and Institutions Code section 602 proceeding after he admitted three counts of auto theft (Veh. Code, § 10851, subd. (a)) and probation violations. The minor contends that the gang-related conditions of probation are unreasonable and unrelated to his offenses. He also argues that they infringe his constitutional rights of association, travel, and free expression and that they are vague and overbroad. He acknowledges that defense counsel did not object on these grounds below and argues that her failure to object constituted ineffective assistance of counsel. He also asserts that, even if counsel was not ineffective, this court may exercise its discretion to review the issues presented. The Attorney General argues that the minor has forfeited his contentions by failing to object below, that defense counsel was not ineffective, and that the minor has not made a persuasive argument for this court to exercise its discretion to review the gang-related probation conditions. He also contends that the probation conditions were proper.
Unless otherwise stated, all further statutory references are to the Welfare and Institutions Code.
We conclude that the minor has forfeited his claim that imposition of the gang-related conditions of probation was unreasonable, but address the issue as part of our review of the minor’s ineffective assistance of counsel claim. On review of the minor’s constitutional challenges, we modify two of the conditions, strike one condition, and affirm the order as modified.
Facts and Procedural History
1. Minor’s Family History
At the time of the instant offenses, the minor was a section 300 dependant. His parents divorced when he was eight years old. Both parents had histories of substance abuse and criminal records. Neither parent’s parental rights had been terminated.
The minor’s mother (Mother) suffers from chronic alcohol abuse. Her convictions include Vehicle Code violations, driving under the influence, and battery. The minor was declared a dependant in November 2002 (at age nine) because of Mother’s alcohol abuse and was removed from her home. Mother was diagnosed with schizophrenia in 2006. In 2007, Mother had a guardian ad litem and an educational representative was appointed for the minor because Mother could not make competent decisions. When the petition was filed, Mother lived with her mother (Grandmother). Mother had monthly visitation with the minor, but her attendance was “inconsistent.”
The minor’s father (Father) has been in and out of jail for Vehicle Code violations and drug offenses. In 2007, Father was in jail on a federal hold for drug sales and had no contact with the minor. According to Grandmother, there was a history of mutual domestic violence between Mother and Father.
After being declared a dependant, the minor was placed at Eastfield Ming Quong for one year, but did not respond to the treatment there. The “wraparound team” was not able to work with him because he ran away. He was placed at two different group homes and continued absconding. He was placed with an aunt for seven months, but she had him removed because he allegedly touched his five-year-old female cousin inappropriately. Thereafter, he was placed at the county Children’s Shelter, then moved to a group home. He had a therapist, but did not like her and refused to participate in therapy.
The minor has three siblings: a sister in foster care in San Jose, a sister who lives with an aunt in Stockton, and a brother who is an adult.
II. Subject Offenses
Count 3: Auto Theft
On June 5, 2007, when he was 13 years old, the minor stole a 1988 Toyota Camry that was parked in front of the owner’s home. The car was recovered four days later. Months later, fingerprints obtained from the car identified the minor. When arrested at the Children’s Shelter in August 2007, the minor admitted stealing the car.
Counts 1 & 2: Auto Theft and Resisting Arrest
On June 11, 2007, the minor (age 13) met J.E. (an 11-year-old boy) at their group home. The boys were bored and left the group home. The minor told J.E. that his father taught him how to “jack” Toyota Camrys. The minor used a pair of scissors to force open a locked door on a 1987 Toyota Camry that was parked in front of the owner’s home and to start the car. The boys used money they found in the car to buy food. At 11:02 p.m., a police officer observed the minor driving at 65 miles per hour in a 45 miles per hour zone. The minor could not keep the car in one lane. When the officer attempted to stop the car for speeding, it failed to yield to full lights and sirens. The minor stopped the car several blocks later and fled on foot. A second officer found the minor hiding in some bushes. The minor told the officers he stole the car because he did not have a ride home. The minor was cited and returned to his group home.
Count 4: Auto Theft and Uncharged Assault
Around 8:00 p.m. on June 18, 2007, the minor (still age 13) picked up J.P. (a 13-year-old girl) in a grey Toyota Camry. He told her the car was stolen. The car was running out of gas, so they drove around looking for another car to steal. Around 1:00 a.m. on June 19, 2007, the minor stole a white 1991 Toyota Camry that was parked in front of the owner’s home. Later, he picked up C.M. (a 12-year-old girl). The juveniles drove around for a while, then parked the car in a residential neighborhood so they could sleep. The victim reported the car stolen. The police found the minor and the girls in the parked car at 8:55 a.m. The minor told the officers he stole the car. He admitted to stealing 15 cars in the past. The minor was cited and released to his group home.
On July 9, 2007, the minor’s roommate at the group home reported that the minor had knives in their room. The counselor found a broken pair of scissors and a knife in the minor’s closet. The minor became angry and punched his roommate in the head eight times.
Minor is Placed on Informal Probation Supervision
The minor was placed on informal probation on September 6, 2007, after admitting three counts of auto theft (Veh. Code, § 10851), one count of possession of burglary tools (Pen. Code, § 466), and one count of driving without a license (Veh. Code, § 12500). The conditions of his informal probation included abiding by a curfew, attending all counseling, participating in the “Wraparound” program, and going to school. Initially, the minor did well on probation.
Count 5: Second Degree Burglary
On October 7, 2007, the minor (now age 14) and M.D. (a 14-year-old boy) entered the Sports Fanatic store. The store owner saw the boys conceal hats on their persons and move toward the exit. M.D. ran away, but the store owner was able to detain the minor. The store owner called the police. The minor told the officers he came to the store to steal a hat. The minor was cited and released to his group home.
III. Procedural History
Petition
On October 15, 2007, the district attorney filed a petition under section 602 with the juvenile court alleging three counts of auto theft, one count of resisting arrest, and one count of second degree burglary based on the incidents described above.
Initial Proceedings
On October 29, 2007, the probation department submitted a report to the court regarding the minor’s suitability for deferred entry of judgment. The report set forth the minor’s family history. The probation officer reported that the minor had previously been diagnosed with post-traumatic stress disorder as a result of physical abuse, attention deficit hyperactivity disorder, and oppositional defiant disorder. His academic performance and behavior at school were unsatisfactory. He had absconded from his group home on October 21, 2007, and was not going to school, so a warrant was issued for his arrest on October 24, 2007. In light of his history, the probation officer concluded that the minor was not suitable for deferred entry of judgment.
Neither the minor nor a parent appeared at the jurisdictional hearing on November 5, 2007. The court found that the minor was not suitable for deferred entry of judgment and issued a warrant for his arrest.
On November 13, 2007, the minor showed up at a friend’s house. The friend’s mother called the police. The minor was arrested and taken to juvenile hall.
On November 15, 2007, the probation officer reported that the minor’s social worker planned to dismiss his dependency case because his behavior was out of control and she had run out of options for him. The probation officer noted that before absconding, the minor’s attendance and performance at school were good, but he was often disruptive and defiant. The probation officer recommended detaining the minor and conducting a mental health evaluation. The court ordered the minor detained and ordered the mental health evaluation.
On November 26, 2007, the probation officer reported that the minor had been receiving services from the Department of Family and Children’s Services (DFCS) for four years but was not receptive to those services. Instead, he exhibited a pattern of defiant, uncooperative, runaway behavior. The probation officer and the social worker agreed that the minor should be declared a ward of the court. The court ordered that the minor remain in custody.
In December 2007, the probation officer prepared a detailed report reviewing the minor’s history and offenses. In addition to information noted above, the officer reported that the minor started using marijuana at age 13 and smoked marijuana once a month. The probation officer noted that Father had been released from jail, was on probation, had remarried, was working in San Jose, and was living in Modesto. Although Father was supposed to have supervised visitation, he was not an active participant in the minor’s life.
Psychological Evaluation and Placement Issues
The court-appointed psychologist, Alan Garton, met with the minor twice. The first time, the minor refused to talk to him; the second time, the minor participated in the interview but refused to do any psychological testing. The psychologist concluded that that minor was of average intellect, but his judgment and insight were poor. The minor “displayed negativistic, defiant, disobedient, and subtly hostile behaviors that [were] consistent with a diagnosis of Oppositional Defiant Disorder.” The psychologist explained that people with this diagnosis sometimes respond to highly structured programs and noted that the minor had done well in juvenile hall. He recommended the minor be made a ward of the court and be sent to the Boys’ Ranch.
In a supplemental report in February 2008, the probation officer reported that the probation department had considered a Ranch placement but concluded that the risk of escape was high, given the minor’s history. The juvenile hall psychologist, Tasia Bychkova, reported that the minor refused to participate in the programs there. The probation officer suggested that further detention in juvenile hall might help the minor see that he could benefit from its structured services. The minor’s maternal aunt (Aunt) told the probation officer that the minor was disappointed with the services he received from DFCS, did not trust the authorities, viewed them as racist, and did not think they were acting in his best interests. She suggested he might be “more willing to work with authorities from the sanctity of his home environment with maternal family members” and agreed to accept him into her home. The probation officer recommended the minor be adjudged a ward of the court, be committed to juvenile hall for 120 days, and other conditions of probation.
Court Declares Minor a Ward; Minor Admits Charges, & Initial Disposition
On February 8, 2008, the minor was declared a ward of the court. The minor admitted the three auto theft counts. The other counts were dismissed. The court ordered probation on the condition the minor spend 120 days in juvenile hall, with credit for 30 days served The court imposed other probation conditions, including that the minor “not associate with any person[] known by him... to be a probationer, parolee, or gang member.” The minor did not object to or appeal this condition of his probation.
We shall not list all of the other conditions of probation, since they are not at issue on appeal.
In April 2008, the probation officer reported that except for episodes of sporadic silliness, the minor was well-behaved in juvenile hall. She noted that he was easily influenced by older youth but behaved appropriately around children his own age. The probation officer had considered allowing the minor to live with Aunt, but Mother objected because she did not think Aunt’s home was safe or conducive to the minor’s rehabilitation because adults who lived there who had criminal records. The court ordered probation to investigate the home.
In May 2008, the probation officer reported that six adults and two minors lived in Aunt’s home, including Aunt, Grandmother, the minor’s uncle (Uncle), and the minor’s brother. Three of the adults had criminal records. Aunt had seven misdemeanor convictions, including theft, driving on a suspended license, and furnishing alcohol to a minor. Grandmother had misdemeanor and felony drug convictions and six misdemeanor Vehicle Code violations. Uncle had seven felony convictions and 18 misdemeanor convictions, including possession of controlled substances, being under the influence of drugs, vehicle theft, forgery, theft, and possession of a switchblade. Mother was in a short-term psychiatric facility. On May 6, 2008, the court ordered the minor released to Aunt. In June 2008, the probation officer reported that the minor’s progress had been satisfactory. He had not incurred any new violations and was to begin school on May 28, 2008.
Probation Violations
On December 24, 2008, the probation officer filed a notice of probation violation and submitted declarations in support of the minor’s arrest. The notice alleged four circumstances of violation: failure to attend school, failure to attend counseling, smoking marijuana and drinking alcohol, and absconding. The minor stopped going to school in August 2008 and left Aunt’s house in September 2008 to live with Mother. In October 2008 and November 2008, the probation officer instructed the minor and Mother that he needed to enroll in school immediately and to attend counseling, but he had not complied. In October 2008, the minor admitted alcohol and marijuana use. In December 2008, the probation officer was unable to contact the minor. On December 26, 2008, the court issued a warrant for the minor’s arrest.
On February 21, 2009, the minor turned himself in to the police. He was arrested and placed in juvenile hall. At the detention hearing on February 24, 2009, the probation officer told the court that Father wanted the minor to live with him. The court ordered the minor detained and ordered a psychological evaluation.
Second Psychological Evaluation
The minor was evaluated by psychologist Joseph Pazdernik, Ph.D., on February 28, 2009. The minor was reluctant to share information at first, but once he relaxed, he became “earnestly cooperative.” He completed a series of psychological tests. Dr. Pazdernik noted that the minor was of “smaller buil[d]” for his age (15 years 8 months), had no visible tattoos or special markings, and was a monolingual English speaker. The minor had had regular contact with Father since September 2008 at Father’s workplace. The minor denied gang affiliation, but admitted associating with gang-affiliated individuals. Dr. Pazdernik concluded that the minor’s low academic achievement was due to “environmental instability” and that he had a fair potential for improvement with academic exposure. He diagnosed a recurrent, mild, depressive disorder; recommended psychological counseling, behavior modification therapy, and medication; and suggested placing the minor with Father.
This is the only mention of gang involvement in this extensive record.
Admission of Probation Violations and Case Transfers
In March 2009, the probation officer reported that the minor was still not in school. The minor realized that marijuana was a problem for him and that he may be predisposed to addiction. He wanted to live with Mother, who had moved to Stockton. Mother did not think her living arrangement was stable and asked the court to release the minor to Father until she was better situated. The probation officer recommended transferring the case to Stanislaus County, where Father lived.
On March 13, 2009, the minor admitted the probation violations. The court placed the minor with Father and ordered the case transferred to Stanislaus County. Three weeks later, on April 3, 2009, the case was transferred from Stanislaus County to San Joaquin County, because the minor was living with Mother in Stockton. The case was transferred back to Santa Clara County on July 24, 2009, when Mother moved back to Santa Clara County.
Transfer-In Hearing and Imposition of Gang-Related Conditions
On September 14, 2009, the court conducted a “Transfer-In” hearing. The probation officer, who was new to the case, reported the changes in residence and the court transfers. The report did not contain any information regarding the minor’s progress or activities since March 2009. The probation officer recommended the gang conditions that are at issue on appeal.
At the transfer-in hearing, the court accepted the transfer, adopted the probation officer’s recommendations (with some changes of language), and imposed the following gang-related conditions of probation, which are at issue on appeal: (1) that the “minor not associate with any person whom he knows to be a probationer, parolee, or gang member” (hereafter the association condition); (2) “that the minor not knowingly participate in any gang activity or visit any area[s] of gang-related activity that are known to him unless he has prior permission from the probation officer” (Condition 4); (3) “ ‘that the minor not knowingly possess, display, wear any insignia, clothing, logos, emblems, badges, or buttons or display any gang signs or gestures which he knows to be gang-related’ ” (Condition 5); (4) that the “minor not obtain any new tattoos that he knows to be gang-related” (Condition 6); (5) that the “minor not post, display or transmit any symbols or information that the minor knows to be gang-related” (Condition 7); and (6) “that the minor not knowingly come within 25 feet of a courthouse when the minor knows there are criminal or juvenile proceedings occurring which involve anyone the minor knows to be gang-related or the minor knows a witness or victim of gang-related activity will be there unless [the] minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from the probation officer” (the courthouse condition). The court stated that “for the purpose of these conditions the words ‘gang’ and ‘gang-related’ activity refer to a criminal street gang as defined by Penal Code Section 186.22 subdivision E and F.”
Penal Code section 186.22, subdivision (f) states: “As used in this chapter, ‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”
Defense counsel objected to the inclusion of the phrase “or needs access to the area for a legitimate purpose” in the courthouse condition on the grounds that it does not provide the minor adequate notice and the court overruled the objection. The court issued a written order that imposed the same conditions it had imposed in February 2008 and a minute order that contained the gang conditions.
Discussion
I. General Rules Governing Probation Conditions; Standard of Review
“The California Legislature has given trial courts broad discretion to devise appropriate conditions of probation, so long as they are intended to promote the ‘reformation and rehabilitation’ of the probationer. (Pen. Code, § 1203.1, subd. (j).)” (In re Luis F. (2009) 177 Cal.App.4th 176, 188 (Luis F.).)
In cases involving juvenile offenders, section 727, subdivision (a) provides: “When a minor is adjudged a ward of the court on the ground that he or she is a person described by Section... 602, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor, including medical treatment, subject to further order of the court.” Section 730 provides in part: “(a) When a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602, the court may order any of the types of treatment referred to in Section 727... [¶] (b) When a ward described in subdivision (a) is placed under the supervision of the probation officer..., the court may make any and all reasonable orders for the conduct of the ward.... The 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.”
“Section 730 grants courts broad discretion in establishing conditions of probation in juvenile cases. [Citation.] ‘[T]he power of the juvenile court is even broader than that of a criminal court.’ ” (In re Christopher M. (2005) 127 Cal.App.4th 684, 692.) As the court explained in In re Antonio R. (2000) 78 Cal.App.4th 937, 941, “juvenile conditions may be broader than those pertaining to adult offenders. This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may ‘curtail a child’s exercise of the constitutional rights... [because a] parent’s own constitutionally protected “liberty” includes the right to “bring up children” [citation, ] and to “direct the upbringing and education of children.” ’ ” Even conditions that infringe on constitutional rights may be valid if they are specifically tailored to fit the needs of the juvenile. (Ibid.)
“In distinguishing between the permissible exercise of discretion in probationary sentencing by the juvenile court and that allowed in ‘adult’ court, [our State Supreme Court has] advised that, ‘[a]lthough the goal of both types of probation is the rehabilitation of the offender, “[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment.... [¶] In light of this difference, a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.... [¶]... [N]o choice is given to the youthful offender [to accept probation]. By contrast, an adult offender ‘has the right to refuse probation, for its conditions may appear to defendant more onerous than the sentence which might be imposed.” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)
“Of course, the juvenile court’s discretion is not boundless. Sheena K., for example, involved a challenge to conditions of juvenile probation based on vagueness and overbreadth. (Sheena K., supra, 40 Cal.4th at p. 889.) Under the void for vagueness constitutional limitation, ‘[a]n order 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.’ [Citations.] In addition, the overbreadth doctrine requires that conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. (Sheena K., supra, 40 Cal.4th at p. 890, [citations].) ‘If available alternative means exist which are less violative of the constitutional right and are narrowly drawn so as to correlate more closely with the purposes contemplated, those alternatives should be used.’ ” (In re Luis F., supra, 177 Cal.App.4th at p. 189.)
Generally, we review the court’s imposition of a probation condition for an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; accord In re Christopher M., supra, 127 Cal.App.4th at p. 692.) However, we review constitutional challenges to a probation condition de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)
2. Forfeiture
The minor challenges the gang-related probation conditions on the grounds that they are overbroad and infringe his constitutional rights of association, travel, and free expression. He also argues that they are unrelated to his offenses since there was no evidence that he was a member of a gang, gang-affiliated, or acting on behalf of a gang when he committed the offenses to support imposition of these probation conditions. Except for his objection to some of the wording of the courthouse condition, the minor did not object to any of these probation conditions in the trial court. The Attorney General argues that the minor’s “claims are forfeited by the failure to object.”
Challenges to a probation condition on the grounds that it is unreasonable or inappropriate because it does not bear a reasonable relationship to the underlying offense and future criminality and purports to regulate conduct that is noncriminal are forfeited on appeal, unless the defendant challenged the ruling in the trial court. (Sheena K., supra, 40 Cal.4th at pp. 881-882, 885, citing People v. Welch (1993) 5 Cal.4th 288, 232-235 & People v. Lent (1975) 15 Cal.3d 481, 486 & fn. 1 (Lent).) However, constitutional challenges to probation conditions that present pure questions of law that can be resolved without reference to the sentencing record developed in the trial court are not forfeited despite the failure to assert the challenge in trial court. (Sheena K., at p. 889; see also In re H.C. (2009) 175 Cal.App.4th 1067, 1070 (H.C.).)
The minor challenges both the reasonableness of the conditions at issue under the test set forth in Lent and the constitutionality of the conditions on a variety of constitutional grounds. By failing to object in the trial court, the minor has forfeited his challenge to the reasonableness of the conditions. (Sheena K., supra, 40 Cal.4th at pp. 881-882, 885; People v. Welch, supra, 5 Cal.4th at pp. 232-235.) But to the extent that his constitutional claims present pure questions of law that can be resolved without reference to the record developed in the trial court, they are not forfeited. (Sheena K., at p. 889.)
The minor contends that if his claims have been forfeited by his failure to object below, then his trial counsel was ineffective. He also asks us to exercise our discretion to review the forfeited claim. Although we decline to exercise our discretion to address the forfeited claim directly, we review the claim indirectly through the prism of the minor’s ineffective assistance of counsel claim. We therefore turn to the rules governing such claims.
3. Ineffective Assistance of Counsel
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).) “ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts.’ ” (People v. Hart (1999) 20 Cal.4th 546, 623.)
To determine whether the minor’s counsel was ineffective when she failed to object to the gang conditions of probation, we begin by reviewing the rules governing challenges to the reasonableness of a probation condition.
“Generally, ‘[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.]’ [Citation.] This test is conjunctive-all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality.” (People v. Olguin (2008) 45 Cal.4th 375, 379-380, citing Lent, supra, 15 Cal.3d at p. 486; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500 (Laylah K.) [applying Lent factors in a juvenile proceeding], disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983-984, fn. 13.) In fashioning conditions of probation, the juvenile court considers “ ‘not only the circumstances of the crime but also the minor’s entire social history.’ ” (Laylah K., at p. 1500.)
With regard to the first Lent factor (whether the probation condition has any relationship to the crimes of which the minor was convicted), there was no evidence of any relationship between the gang conditions and the minor’s criminal offenses. He was convicted of auto theft. He was not charged with doing so for the benefit of a criminal street gang and nothing in the record suggests that was the case. The minor’s probation violations consisted of failing to attend school, failing to participate in counseling, smoking marijuana, drinking alcohol, and absconding. There is no indication any of this conduct was gang-related. Although some of his family members had criminal records, there is no evidence that any of them were gang members or gang-affiliated or that their convictions were gang-related. There was no evidence that the juveniles that the minor was with when he committed the charged offenses were gang members or gang-affiliated. The only time gangs are even mentioned in this extensive record is when Dr. Pazdernik reported that the minor denied gang affiliation, but admitted associating with gang-affiliated individuals.
With regard to the second Lent factor (whether the condition relates to conduct that is not in itself criminal), the minor argues that “[t]here is nothing illegal about wearing certain articles of clothing, making gestures, obtaining tattoos, transmitting information, or going to the court house” and that “several of these forbidden activities are explicit constitutional rights.” The minor’s assertions do not address all of the activities included in the gang conditions of his probation. Condition 4 prohibits the minor from “knowingly participat[ing] in any gang activity.” This includes active participation in a criminal street gang, which is illegal under Penal Code section 186.22, subdivision (a). Condition 6 prohibits the minor from “obtain[ing] any new tattoos that he knows to be gang-related.” Although it is not illegal to obtain a tattoo, it is illegal to tattoo or offer a tattoo to a person under the age of 18. (Pen. Code, § 653.) Thus, the gang conditions include conduct that is both legal and illegal. To the extent that the gang conditions address conduct that is illegal, they are not invalid.
With regard to the third Lent factor (whether the condition requires or forbids conduct that is not reasonably related to future criminality), the minor argues that “the only conceivable connection between the forbidden conduct and future criminality is the fact that [he] has a Hispanic surname. Other than that, there is not the slightest indication in the record that any future association with gang members, visits to areas of gang-related activity, wearing of blue or red clothing, or any of the rest of it, would be any more related to [the minor’s] potential future criminality than it would be to the future criminality of a defendant convicted of an antitrust violation.” We disagree.
In light of the minor’s social history, even though the gang conditions are unrelated to the minor’s offenses and many involve conduct that is not criminal, the conditions are valid because they are reasonably related to preventing future criminality. (Olguin, supra, 45 Cal.4th at pp. 379-380.) Although not yet in a gang, several aspects of the minor’s social history indicate that he is at risk for gang involvement. The minor’s behavior was out of control and neither his parents nor DFCS had been able to control him, as evidenced by (1) the repeated incidents of auto theft and his attempted theft from the store: (2) his alcohol and marijuana use; (3) his failure to attend school for months at a time, even after the court and his probation officer told him to go to school; and (4) his repeated absconding from DFCS placements. In addition, his home environment was unstable and included repeated changes in residence. Although he had been removed from Mother’s home, he ended up living with her without any indication that the placement was approved by DFCS or the court. The social worker reported that the minor was often disruptive and defiant. Both psychologists diagnosed him with oppositional defiant disorder and one reported that he had poor insight and judgment. The probation officer reported that he was easily influenced by older youth at juvenile hall, which could include gang members. Finally, the minor told Dr. Pazdernik he associated with gang-affiliated individuals.
As the court observed in Laylah K., “[a]ssociation with gang members is the first step to involvement in gang activity.... In Penal Code section 186.21, the Legislature expressly found ‘that the State of California is in a state of crisis which has been caused by violent street gangs whose... activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected.’ ” (Laylah K., supra, 229, Cal.App.3d at p. 1501.) The court is not required “to wait until a minor has become entrenched with a gang, only then to apply mere prophylactic remedies.” (Ibid.) “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.) Moreover, probation conditions “[p]recluding the minors’ presence at known gang gathering areas and association with gang members [are] reasonably designed to direct the minor[] away from gang activity, as is the prohibition against wearing gang clothing. The restriction on court attendance is aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings.... All these conditions are reasonably designed to address the problem of gang affiliation.” (Ibid.)
Since imposition of the gang conditions was not unreasonable and the conditions were not invalid, trial counsel was not ineffective for failing to object to them. We turn next to the minor’s contentions that the gang-related conditions of probation infringe his constitutional rights.
IV. Constitutional Challenges
The minor contends that the gang conditions are invalid because they infringe upon his federal constitutional rights of association, travel, and free expression.
“Probation conditions have been upheld even though they restrict a probationer’s exercise of constitutional rights if they are narrowly drawn to serve the important interests of public safety and rehabilitation [citation] and if they are specifically tailored to the individual probationer.” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084 [probation conditions affecting the freedom of travel, association, and assembly].) The minor argues that the gang conditions at issue here affect his basic constitutional rights of freedom of travel, association, and expression. “Thus, in order to survive constitutional scrutiny, such conditions not only must be reasonably related to present or future criminality, but also must be narrowly drawn and specifically tailored to the individual probationer.” (Ibid.) A “probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)
As noted previously, “juveniles are deemed to be more in need of guidance and supervision than adults” and “a minor’s constitutional rights are more circumscribed.” (In re Antonio R., supra, 78 Cal.App.4th at p. 941.) “ ‘[A] condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court....’ ” (Sheena K., supra, 40 Cal.4th at p. 889.)
A. Right of Free Association – Association Condition
The minor argues that the association condition, which directs “that the minor not associate with any person whom he knows to be a probationer, parolee, or gang member” violates his constitutional right of association.
Courts have upheld similar conditions of probation against constitutional challenges that they were vague, overbroad, and infringed upon the probationer’s right of association. (People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez); Laylah K., supra, 229 Cal.App.3d at p. 1500.) In addition, the wording of the association condition, including the court’s express definition of the word “gang” to mean a criminal street gang as defined in Penal Code section 186.22, is substantially similar to the wording of the modification of an association condition that this court ordered in H.C., supra, 175 Cal.App.4th at p. 1072 (“ ‘You H.C. will not associate with any person known to you to be on probation, on parole or a member of a criminal street gang’ ”). For these reasons, we reject the minor’s constitutional challenge to the association condition.
A. Right to Travel – Areas of Gang-Related Activity (Condition 4)
The minor argues that Condition 4, which prohibits him from “visit[ing] any areas of gang-related activity that are known to him unless he has prior permission from the probation officer, ” infringes his constitutional right to travel.
In People v. Leon (2010) 181 Cal.App.4th 943, 952, this court addressed a challenge to a probation condition that forbade the defendant from “frequent[ing] any areas of gang-related activity” on the ground that the condition was unconstitutionally vague. We concluded that “absent a knowledge requirement, ” the condition was unconstitutionally vague because the “defendant may be criminally punished for gang involvement he is unaware of.” (Ibid.) We also agreed with the defendant’s contention that the word “frequent” rendered the condition unconstitutionally vague “because it is both obscure and has multiple meanings.” (Ibid., citing H.C., supra, 175 Cal.App.4th at p. 1072.) Accordingly, we ordered the condition modified to read: “ ‘You are not to visit or remain in any specific location which you know to be or which the probation officer informs you is an area of criminal-street-gang-related activity.’ ” (Ibid.)
In this case, the minor challenges a condition that contains language that is similar to the condition we approved in H.C. on the ground that it infringes his constitutional right to travel. The right to travel (which includes interstate, intrastate, and “intramunicipal” travel) is “elementary in a free society” and protected by the United States and California Constitutions. (In re White (1979) 97 Cal.App.3d 141, 148-149.) Although the minor characterizes his challenge as one based on the right to travel, he argues that the condition is unconstitutional because it “prohibits travel to ‘areas of gang-related activity’ without giving [the minor] any way of knowing exactly where those are.” This sounds more like the vagueness challenge that we addressed in Leon, than a challenge based on the right to travel. Since Condition 4 contains a knowledge requirement, requiring the minor to know that the prohibited area is an area where criminal-street-gang-related activity occurs, we conclude it is not impermissibly vague.
Moreover, since the minor’s social history and delinquency record support the conclusion that the minor was at risk for gang involvement, in our view the condition was sufficiently narrowly drawn to serve the important interests of public safety and his rehabilitation and specifically tailored to the minor’s situation. There was no evidence that the minor or his family lived in areas that were gang-related or that the minor went to school or worked in such an area. We therefore conclude that the Condition 4 does not infringe his constitutional right to travel.
However, we do note that the First District Court of Appeal recently addressed a condition that prohibited visiting areas of gang-related activity in In re Victor L. (2010) 182 Cal.App.4th 902. The court observed that the term “gang-related activity, ” as used in an analogous probation condition, may be problematic: “[E]ven with a knowledge requirement, the gang-related activities condition is impermissibly vague in that it does not provide notice of what areas [the minor] may not frequent or what types of activities he must shun.” (Id. at p. 914.) The court found, however, that the probation condition could be saved by the addition of language authorizing the probation officer to notify the minor of the gang-related areas he must avoid. (Id. at pp. 917-918.) The court noted that the probation officer clause “allow[ed] specification of exact limits to be made by the probation officer on an individualized basis.” (Id. at p. 918.) This delegation of authority, the court noted, was consistent with People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359 (O’Neil), which held that “ ‘[t]he court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation.’ ” (In re Victor L., at p. 919 [quoting O’Neil].)
We concur with the court’s reasoning in Victor L. As the court explained in O’Neil, “[t]here are many understandable considerations of efficiency and practicality that make it reasonable to leave to the probation department the amplification and refinement of a stay away order.” (O’Neil, supra, 165 Cal.App.4th at p. 1358.) In the instant case, the juvenile court is dictating the general policy of avoiding areas of gang activity while leaving the specification of the details to the probation officer. (Cf. Leon, supra, 181 Cal.App.4th at p. 952 [amending unconstitutionally vague condition to include knowledge requirement with “the probation officer informs” language]; In re Vincent (2008) 162 Cal.App.4th 238, 247-248 (Vincent) [same].) The probation officer’s authority to specify the restricted locations, in turn, prevents arbitrary and overbroad enforcement of the condition.
We do find, however, that additional modification of Condition 4 would improve its clarity and serve to ensure that the probation officer’s role is adequately circumscribed. In Leon, this court considered whether a similar condition was unconstitutionally vague. Finding that it was, we modified the condition to read as follows: “You are not to visit or remain in any specific location which you know to be or which the probation officer informs you is an area of criminal-street-gang-related activity.” (Leon, supra, 181 Cal.App.4th at p. 952, italics added.) This language makes it clear that passing through an area does not violate the condition; the minor must visit or remain in an area of gang-related activity. Moreover, by limiting the bar to “specific locations, ” the probation officer is precluded from designating entire towns or neighborhoods as areas of gang activity. To insure consistency with Victor L. and Leon, we will modify the language of Condition 4 to read: “The minor shall not knowingly participate in any gang activity or visit or remain in any specific location that he knows to be, or that the probation officer informs him to be, an area of gang-related activity.”
B. Right to Travel – Court Proceedings (Courthouse Condition)
The minor asserts that the courthouse condition infringes his constitutional right to travel. The courthouse condition prohibits the minor from “knowingly com[ing] within 25 feet of a courthouse when the minor knows there are criminal or juvenile proceedings occurring which involve anyone the minor knows to be gang[-]related or the minor knows a witness or victim of gang-related activity will be there unless [the] minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from the probation officer.”
Restrictions on court attendance are “aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings” and are “designed to address the problem of gang affiliation.” (Laylah K., supra, 229 Cal.App.3d at p. 1502.) “[T]he state’s ability to afford protection to witnesses whose testimony is crucial to the conduct of criminal proceedings is an absolutely essential element of the criminal justice system.” (Alvarado v. Superior Court (2000)23 Cal.4th 1121, 1149-1150 & fn. 15 [describing serious problem of witness intimidation by gang members].) Thus, a limitation on the minor’s appearance at proceedings that involve gang members is reasonably related to both his rehabilitation (limiting the minor’s gang affiliation) and to an important state interest (prevention of witness intimidation and protection of the integrity of the justice system).
However, as we observed in Leon, supra, 181 Cal.App.4th at pages 952-953, a broad ban on attendance at court proceedings may impinge upon a number of constitutional rights. Foremost in these circumstances is the public’s right of access to criminal and civil trials. (See Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 603 [acknowledging right of access to criminal trials; “this right of access is embodied in the First Amendment, and applied to the States through the Fourteenth Amendment”]; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212 [the constitutional right of access extends to civil trials].) In addition, exercise of the right of access to trials is essential to freedom of speech and to freedom of the press. (See Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 577-580.)
In Leon, this court addressed constitutional challenges to a probation condition that forbade the defendant from “appear[ing] at any court proceeding unless” he was “a party, ... a defendant in a criminal action, subpoenaed as a witness, or [attended] with permission of probation” on the grounds that the condition was unconstitutionally overbroad and vague. (Leon, supra, 181 Cal.App.4th at p. 952.) We observed that “[t]here can be a variety of legitimate reasons for being at a court proceeding, other than to intimidate or threaten a party or witness. For example, defendant may need to file a document regarding a family matter or he may, as a member of the public, wish to observe a newsworthy trial not involving a gang member or himself.” (Leon, supra, 181 Cal.App.4th at p. 953.) We concluded that “[w]hile our Supreme Court is ‘keenly aware of the serious nature and magnitude of the problem of witness intimidation’ (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1149, ...), the current probation conditions [in Leon] as modified already prevent defendant from associating with gang members and from wearing, possessing, or displaying any criminal street gang paraphernalia.” (Ibid.) The courthouse condition in Leon allowed attendance at court proceedings only if the probationer was a party, defendant, subpoenaed witness, or with the prior permission of probation. (Id. at pp. 952-954.) We found that the clause allowing for attendance with the probation officer’s permission did not rectify the impermissibly “broad sweep” of the condition. (Id. at p. 953.) We therefore limited the ban to those court proceedings “concern[ing] a member of a criminal street gang” or in which “a member of a criminal street gang is present” and modified the courthouse condition to read as follows: “ ‘You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.’ ” (Id. at p. 954.)
In People v. Perez (2009) 176 Cal.App.4th 380, the appellate court struck a probation condition that provided: “ ‘The defendant shall not attend any Court hearing or be within 500 feet of any Court in which the defendant is neither a defendant nor under subpoena. The defendant shall inform the probation officer prior to any Court appearance.’ ” (Id. at pp. 383, 386.) The court observed that the condition, as written, was neither “limited to protecting specific witnesses or parties” nor “confined to trials involving gang members”; the condition was “so broad” that it prevented activities that were unrelated to future criminality. (Id. at p. 384.) Among other things, the court noted that “[m]any courts are located in government complexes that house a variety of public agencies. These may include a county law library; a public defender’s office; a hall of administration, housing a board of supervisors, a city council, or both; a tax collector; and a health department, to name a few.” (Id. at p. 385.) Thus, a condition that bars a probationer from coming within a specified distance of a courthouse also impinges on the probationer’s access to public places and participation in civic activities.
The condition here is similar to and in some respects narrower than the modified condition we approved in Leon. Whereas the condition in Leon barred the probationer from “any court proceedings, ” the condition here only applies to “criminal or juvenile proceedings.” The condition in Leon qualifies “any court proceedings” to include only those where “a member of a criminal street gang is present” or those “concern[ing] a member of a criminal street gang.” The condition here is similar in that it qualifies the proceedings as including those that “involve anyone the minor knows to be gang[-]related or the minor knows a witness or victim of gang-related activity will be there.” The condition here also provides an additional exception that is not present in Leon, which allows the minor to be present in the courthouse when he needs “access to the area for a legitimate purpose.” This exception covers the situations discussed in Leon and Perez like attending a noteworthy trial, filing papers in the clerk’s office, or visiting other governmental agencies housed in or near the courthouse and thus inures to the minor’s benefit. In our view, the courthouse condition here is, for the most part, narrowly drawn and tailored to the goal of preventing the minor from becoming involved in a gang to serve the relevant state interest and pass constitutional muster.
However, we are concerned that the minor’s ability to engage in civic functions may be circumscribed by the requirement that he remain at least 25 feet from any courthouse. In our view, restricting access to “court proceedings, ” as opposed to the “courthouse, ” accomplishes the goal of preventing witness intimidation without infringing on the minor’s right of access. We shall therefore modify the condition by striking, in its entirety, the restriction that the minor not come within 25 feet of a courthouse.
As noted above, the court limited the courthouse condition to criminal and juvenile proceedings. Gang-related witness intimidation may also occur in civil actions arising out of gang-related activity, as well as family law matters. In other cases, we have applied similar courthouse conditions to “any court proceeding.” (See e.g., Leon, supra, 181 Cal.App.4th at pp. 952-954.) Since the condition here is even more narrowly tailored than the condition in Leon, in due deference to the trial court, we shall not modify the language referring to the type of proceedings.
In conclusion, we will order the courthouse condition modified as follows: “The minor shall not be present at any criminal or juvenile court proceedings that involve anyone the minor knows to be gang-related or when the minor knows a witness or victim of gang-related activity will be present unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from the probation officer.”
C. Right to Free Expression – Gang Paraphernalia (Condition 5)
Condition 5 states “that the minor not knowingly possess, display, wear any insignia, clothing, logos, emblems, badges, or buttons or display any gang signs or gestures which he knows to be gang-related.”
The minor contends that this condition infringes his First Amendment right of free expression and is overbroad. He argues that gang colors include red, blue, brown, purple, black, white and khaki, that it is nearly impossible not to wear gang colors, and that the condition should be narrowed to address a particular gang of concern.
Citing In re Alcala (1990) 222 Cal.App.3d 345, 362, the Attorney General responds that only “clothing choices which are in effect political speech are protected by the First Amendment.” He also asserts that the requirement that the minor know the item at issue is gang-related precludes a probation violation, and that the minor can consult with his probation officer if he has any doubts about what is prohibited.
The United States Constitution protects the individual’s freedom of speech and association and certain symbolic and expressive conduct. (U.S. Const., 1st & 14th Amends.; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 772 [recognizing liberty interest in personal dress and appearance].) Thus, any condition that limits these rights must be closely tailored to achieve a compelling state purpose; in this case, reform and rehabilitation of the minor. (People v. Jungers (2005) 127 Cal.App.4th 698, 704; Luis F., supra, 177 Cal.App.4th at p. 189.)
We note that symbols as commonplace and universal as certain letters of the alphabet or numbers bear a relationship to criminal street gangs. Items as seemingly innocuous as a red shirt or a blue shirt or the numbers 13 or 14, in the right context, may be viewed as “gang-related.” Nonetheless, we reject the minor’s contention that Condition 5 should be narrowed to address a particular gang of concern. In our view, Condition 5 is closely tailored to its purpose of enhancing the minor’s reformation and rehabilitation by requiring him to avoid all gang associations. Consequently, it was not required to be limited to one gang, one gang color, or one set of insignia.
We also agree with the Attorney General’s contention that the knowledge requirement aids in tailoring Condition 5 to the state’s purpose. (See, e.g., Leon, supra, 181 Cal.App.4th at p. 951 [adding knowledge requirement, including probation officer language, to gang paraphernalia condition to avoid unconstitutional vagueness]; Lopez, supra, 66 Cal.App.4th at p. 629 [adding knowledge requirement to condition prohibiting display of gang indicia].)
For these reasons, we reject the minor’s contentions that Condition 5 infringes his right of free expression and is overbroad. Consequently, we shall neither strike nor modify Condition 5.
D. Right to Free Expression – Transmission of Gang Symbols (Condition 7)
Condition 7 provides that the “minor not post, display or transmit any symbols or information that the minor knows to be gang-related.” The minor does not makes any specific arguments regarding this condition, other than to state that it violates his right of free expression and is overbroad. The Attorney General does not address this condition.
Condition 7 plainly targets speech that is ordinarily protected by the First Amendment as it covers all forms of interpersonal communication, including Internet and cell phone usage. “Transmit, ” for example, means simply “to send or convey from one person or place to another.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 1255.) In examining the condition, we note that there is no requirement that the transmission be between gang members or that the subject be criminal activity. The minor could violate the condition in any number of innocuous ways-e.g., waving to an acquaintance or relative who is a gang member, or informing a friend of rumored gang action. The record does not contain any evidence regarding the minor’s Internet, social media, or cell phone usage and the parties have not proposed, or provided support for, a fact-based modification of this condition. In short, the condition infringes on the minor’s freedom of speech and is not carefully tailored to the state’s purpose of reformation and rehabilitation. We therefore conclude that the condition is overbroad. Moreover, in our view, the other gang conditions of probation imposed by the juvenile court are sufficient to address the danger that this minor might fall under the influence of a criminal street gang. We will therefore strike Condition 7.
Disposition
We modify Condition 4 to read as follows: “The minor shall not knowingly participate in any gang activity or visit or remain in any specific location that he knows to be, or that the probation officer informs him to be, an area of gang-related activity.”
We modify the courthouse condition to read as follows: “The minor shall not be present at any criminal or juvenile court proceedings that involve anyone the minor knows to be gang-related or when the minor knows a witness or victim of gang-related activity will be present unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from the probation officer.”
Condition 7 is stricken.
As so modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J. Mihara, J.