Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. JJD061645 Hugo J. Loza, Judge.
Tim Warriner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Detjen, J.
Following a contested jurisdiction hearing, the juvenile court found true allegations that appellant, J.O., a minor, committed felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and misdemeanor battery (Pen. Code, § 242)). Following the subsequent disposition hearing, the court readjudged appellant a ward of the court; ordered him committed to the Tulare County Youth Correctional Center Unit for a period of 214 to 365 days; and placed appellant under the supervision of the probation officer, with various terms and conditions, including that appellant (1) “Not be a member of, or associate with, any person the [minor] knows, or should reasonably know, to be a member or to be involved in the activities of a criminal street gang”; (2) “Not wear or display items or emblems reasonably known to be associated with or symbolic of gang membership”; and (3) “Not acquire any new tattoos or gang-related piercings and have any existing tattoos or piercings photographed as directed by the probation officer.” We refer to these conditions of probation as, respectively, the gang membership/association condition, the gang emblem condition and the gang tattoo/piercing condition.
On appeal, appellant contends each of the probation conditions set forth above is unconstitutionally vague. The People concede that appellant is correct as to the gang emblem and gang tattoo/piercing conditions. We will order those conditions modified, and otherwise affirm.
DISCUSSION
Gang Membership/Association Condition
Appellant contends the gang membership/association condition is unconstitutionally vague because it prohibits him from associating with any person he “should reasonably know” to be a gang member or involved in gang activity, and therefore does not require that appellant have actual knowledge of the gang connections of such persons. We disagree.
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “The vagueness doctrine bars enforcement of ‘“a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.]” (Ibid.) “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.)
Appellant bases his challenge to the gang membership/association condition chiefly on Sheena K. and People v. Leon (2010) 181 Cal.App.4th 943 (Leon). In Sheena K., our Supreme Court invalidated a condition of probation “forbidding [the probationer’s] association with ‘anyone disapproved of by probation’....” (Sheena K., supra, 40 Cal.4th at p. 889.) The court held: “[I]n the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague.... [T]he probation condition 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.” (Id. at pp. 891-892, italics added, footnote omitted.)
In Leon, an adult probationer challenged the following condition of probation: “‘No association with gang members’....” (Leon, supra, 181 Cal.App.4th at p. 949.) He argued that the condition, in order to avoid being unconstitutionally vague, “should be modified to read, ‘No association with any person whom you know, or whom the probation officer informs you, is a gang member.’” (Ibid.) The Attorney General “[had] no objection” to such a modification. The court held: “[T]he condition is constitutionally defective because it lacks an explicit knowledge requirement. Absent that qualification, the condition renders defendant vulnerable to criminal punishment for ‘associating with persons not known to him to be gang members.’” (Id. at p. 950, italics added.)
Thus, Sheena K. and Leon invalidated probation conditions based on the absence of, respectively, “an express requirement of knowledge” (Sheena K., supra, 40 Cal.4th at p. 891) and “an explicit knowledge requirement” (Leon, supra, 181 Cal.App.4th at p. 951). Despite this sweeping language, however, we are not persuaded that either case stands for the proposition that, as appellant suggests, a probation condition, in order to pass constitutional muster, requires “actual knowledge” regarding what conduct is prohibited. In neither Sheena K. nor Leon was the challenged condition one that, like those at issue in the instant case, could be violated where the probationer engages in some conduct he or she “should reasonably, ” rather than actually, knows to be prohibited. And “[c]ases are not authority for propositions they do not consider.” (People v. Martinez (2000) 22 Cal.4th 106, 118.)
In our view, the gang membership/association condition provides fair warning of the prohibited conduct. In People v. Turner (2007) 155 Cal.App.4th 1432 (Turner), the court, relying on Sheena K., held unconstitutionally vague a probation condition that directed the defendant “‘[n]ot associate with persons under the age of 18 unless accompanied by an unrelated responsible adult....’” (Turner, supra, at p. 1435.). The court stated: “A person may reasonably not know whether he or she is associating with someone under the age of 18. Fair notice, as described in Sheena K., is not possible unless the probation condition is modified to require that defendant must either know or reasonably should know that persons are under 18 before he is prohibited from associating with them.” (Id. at p. 1436, italics added.) The court modified the condition accordingly. (Ibid.) Like the modified version of the probation condition in Turner, the gang membership/association condition, because it prohibits appellant from associating with “any person [he] knows, or should reasonably know” to have gang connections, provides the requisite fair notice and is therefore not unconstitutionally vague. It therefore requires no modification.
The Gang Emblem Condition
As indicated above, the gang emblem condition directs that appellant “[n]ot wear or display items or emblems reasonably known to be associated with or symbolic of gang membership.” (Italics added.) Appellant again argues that notwithstanding the “reasonably known” language, the absence of an “explicit knowledge requirement” renders this condition unconstitutionally vague. For the reasons discussed above, we disagree.
The People, however, assert this condition is defective, but for a different reason, viz, the following: this condition “does not specify who must have knowledge of the prohibited items or emblem’s status and it does not require that appellant himself be possessed of knowledge.” (Italics added.) We agree. (In re H.C. (2009) 175 Cal.App.4th 1067, 1071-1072 [probation condition prohibiting minor from associating with any “‘known probationer, parolee, or gang member’” did not “satisfy the requirement that the minor be ‘possessed of knowledge’” and therefore did not “meet the core due process requirement of adequate notice”].) We will modify this condition to provide that appellant not wear or display items or emblems that he knows or reasonably should know are associated with, or symbolic of, gang membership. (Turner, supra, 155 Cal.App.4th at p. 1436 [when conditions of probation can be modified to correct their constitutional infirmities, courts are empowered to do so].)
Gang Tattoo/Piercing Condition
As indicated above, the gang tattoo/piercing condition directs that appellant “[n]ot acquire any new tattoos or gang-related piercings and have any existing tattoos or piercings photographed as directed by the probation officer.” Appellant again argues that the absence of an “actual knowledge requirement” renders the condition void for vagueness. The People concede this point. We agree. (Sheena K., supra, 40 Cal.4th at p. 891.)
Appellant argues that the gang tattoo/piercing condition must be modified to provide that appellant not acquire any new tattoos or piercings he knows are gang related. We disagree. For the reasons discussed above, we will follow Turner, and order the condition be modified to provide that appellant not acquire any tattoos or piercings he knows or reasonably should know are gang related.
DISPOSITION
The gang emblem condition is modified to provide that appellant shall not wear or display items or emblems he knows or reasonably should know are associated with, or symbolic of, gang membership. The gang tattoo/piercing condition is modified to provide that appellant shall not acquire any tattoos or piercings he knows or reasonably should know are gang related. As modified, the judgment is affirmed.