Opinion
F075031
01-24-2018
In re ALBERTO F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ALBERTO F., Defendant and Appellant.
Robert G. McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CEJ600791-1)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Michael G. Idiart, Judge. Robert G. McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
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The court adjudged appellant Alberto F. a ward of the court (Welf. & Inst. Code, § 602) after appellant admitted allegations charging him with misdemeanor vehicle theft (Veh. Code, § 10851, subd. (a); count 1) and felony evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 2). On appeal, appellant challenges two of his conditions of probation. We find partial merit to appellant's contentions, modify the judgment accordingly, and affirm as modified.
FACTS
On or about November 2, 2016, appellant ran away from home. On November 5, 2016, at approximately 2:01 a.m., appellant led Fresno County Sheriff's deputies on a chase in a car he had stolen. The chase ended after appellant struck a median. During a search of appellant, deputies found four vehicle keys in his front left pants pocket that appeared to have been filed down.
On November 8, 2016, the Fresno County District Attorney filed a juvenile wardship petition that charged appellant with felony vehicle theft, felony evading a peace officer, and possession of burglary tools (Pen. Code, § 466; count 3), a misdemeanor.
On November 17, 2016, the prosecutor reduced the auto theft charge to a misdemeanor and dismissed the possession of burglary tools charge in exchange for appellant admitting the auto theft and evading a peace officer charges.
Appellant's probation report indicates appellant was 16 years old when he committed the underlying offenses. Appellant reported that he had friends who were in a Bulldog gang, but denied he was gang member. According to appellant, he associated with some gang members only because he knew them from school. Additionally, the report noted that when he was booked into juvenile hall, appellant admitted being a Bulldog gang member.
However, a memo prepared for a November 9, 2016, detention hearing states that when appellant was booked, he admitted only that he associated with Bulldog gang members.
On December 5, 2016, at appellant's disposition hearing, defense counsel objected to any gang terms as conditions of probation, arguing that there was no nexus between appellant's offenses and "any participation or relation with any criminal street gang." Thereafter, the court set appellant's maximum term of confinement at three years four months and committed him to juvenile hall for 15 days, followed by a commitment to the GPS monitoring program for up to 45 days. The court also placed appellant on probation until January 5, 2018, on certain terms and conditions, including probation condition Nos. 92 and 94.
The parties refer to the probation conditions by the number that appears next to them in the minute order for appellant's disposition. For purposes of simplicity, we will use the parties' names for these conditions and refer to them as probation condition Nos. 92 and 94.
Probation condition No. 92 provided: Appellant was "[n]ot to associate with any person known to the minor to be a gang member. For purposes of this paragraph, and for any condition of probation in which the word 'gang' appears, that word means 'a criminal street gang' as described in Penal Code § 186.22, subdivisions (e) and (f). Not to wear, possess or display any item known to the minor to be gang related such as gang insignia, moniker, jewelry or other markings."
Probation condition No. 94, in pertinent part, provided: "The minor shall not obtain any piercings with gang significance or not in compliance with [Penal] Code Section 652(a)."
Penal Code section 652, subdivision (a) provides: "It shall be an infraction for any person to perform or offer to perform body piercing upon a person under the age of 18 years, unless the body piercing is performed in the presence of, or as directed by a notarized writing by, the person's parent or guardian."
DISCUSSION
Probation Condition No. 92
Appellant contends probation condition No. 92, which prohibits him from associating with any known gang members or displaying items known to him to be gang related, is invalid because it does not bear any relationship to his offenses, does not relate to conduct that is criminal, and was not reasonably related to future criminality. Thus, according to appellant, the court abused its discretion when it imposed condition No. 92 and it should be stricken. We disagree.
"Trial courts have broad discretion to set conditions of probation in order to 'foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.' [Citations.] If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is 'not entitled to the same degree of constitutional protection as other citizens.' [Citation.]
"However, the trial court's discretion in setting the conditions of probation is not unbounded. A term of probation is invalid if 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.] Conversely, '...a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]
"... Prohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders. [Citations.] Because '[a]ssociation with gang members is the first step to involvement in gang activity,' such conditions have been found to be 'reasonably designed to prevent future criminal behavior.' [Citation.] Whether the minor was currently connected with a gang has not been critical. Thus, probation terms have been approved which bar minors from being present at gang gathering areas, associating with gang members, and wearing gang clothing." (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)
During a probation department interview, appellant denied he was a gang member and claimed he only associated with some Bulldog gang members whom he knew from school. The report, however, stated that when he was booked into juvenile hall, appellant admitted he was member of the Bulldog gang. In contrast, his detention report indicated that when he was booked, appellant admitted only that he affiliated with members of the Bulldog gang. Thus, although the evidence was inconclusive whether appellant was a Bulldog gang member, it was undisputed that he associated with members of that gang. Further, his association with gang members supported the imposition of gang conditions because, as noted earlier, association is the first step in gang membership and gang conditions have been found to be reasonably related to preventing future criminality when a minor associates with gang members.
In In re Edward B. (2017) 10 Cal.App.5th 1228, 1236 (Edward B.), the court found there was no evidence the juvenile was or had been a gang member or that his current friends were affiliated with gangs. Consequently, it struck a probation condition similar to the one at issue here that prohibited the appellant from knowingly associating with known gang members. (Ibid.) Appellant relies on Edward B. to contend that the condition of probation prohibiting him from associating with known gang members should be stricken. In doing so, he attempts to downplay the significance of his association with gang members by arguing that due to the presence of Bulldog gang members at appellant's high school, appellant was compelled to associate with them there, but he did not associate with them outside a school setting. Appellant, however, does not cite any evidentiary support for his assertion that he associated with Bulldog gang members at school only out of compulsion and that he did not associate with them outside of a school setting. Further, Edward B. is easily distinguishable because in that case there was no evidence that the juvenile associated with gang members whereas, here, appellant admitted that he did. Thus, we conclude that probation condition No. 92 prohibiting him from associating with gang members was valid and that the court did not abuse its discretion when it ordered him to comply with this condition. Probation Condition No. 94
Appellant contends the term "gang significance" in probation condition No. 94 is inherently broad and amorphous in scope because it could refer to a piercing that promotes a specific gang or identifies the person with the piercing as a gang member, and it could also include body art that denounces gang activity, or identifies the individual as being opposed to gang membership. More importantly, according to appellant, condition No. 94 is vague because he could violate the condition by obtaining a body piercing without any knowledge of its gang significance. Therefore, appellant argues that because condition No. 94 does not provide him with adequate notice of what piercing would violate his probation, the condition is unconstitutionally vague. We find partial merit to this contention.
Respondent contends that appellant forfeited a claim that probation condition No. 94 is vague as applied to him. We understand appellant's contention to challenge this condition only as being vague on its face. Since this presents a pure question of law, appellant did not forfeit this contention by his failure to object to condition No. 94 in the juvenile court on the ground that it was facially vague. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) --------
"In a variety of contexts, beginning with People v. Garcia (1993) 19 Cal.App.4th 97 (Garcia), California appellate courts have found probation conditions to be unconstitutionally vague or overbroad when they do not require the probationer to have knowledge of the prohibited conduct or circumstances. In Garcia, a probation condition prohibiting association with ' "any felons, ex-felons, users or sellers of narcotics" ' [citation] was found to impinge on the probationer's 'constitutional right of freedom of association' and accordingly had to be narrowly drawn [citation]. [This court] rejected the contention that it was implicit that the condition would only be violated if the probationer knew of the other person's status, stating 'the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.' [Citation.]
"In People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez), [this court] applied [our] reasoning from Garcia to a condition stating in part that ' "[t]he defendant is not to be involved in any gang activities or associate
with any gang members" ' [citation] and concluded that the association prohibition 'suffers from constitutionally fatal over breadth because it prohibits Lopez from associating with persons not known to him to be gang members' [citation]. [This] court ordered the language modified to provide that ' "Defendant is not to be involved in or associate with any person known to defendant to be a gang member." ' " (People v. Kim (2011) 193 Cal.App.4th 836, 843-844, fn. omitted (Kim).)
As explained in Kim, "In [these] situations, an express knowledge requirement is reasonable and necessary. The affiliations and past history of another person may not be readily apparent without some personal familiarity. Similarly, despite the presence of gang graffiti, sites of gang-related activity may not be obvious to all. And it takes some experience or training to identify what colors, symbols, hand signs, slogans, and clothing are emblematic of various criminal street gangs." (Kim, supra, 193 Cal.App.4th at p. 845.) Thus, in order to eliminate the constitutional vagueness of probation condition No. 94, we will add a knowledge requirement. (Cf. In re Sheena K., supra, 40 Cal.4th at pp. 889, 891-892 [court added knowledge requirement to probation condition that required appellant to not associate with "anyone disapproved of by her probation officer"].)
However, since the purpose of a probationary order is to ensure the minor's reformation and rehabilitation, a gang piercing that denounces gang activity or identifies a minor as being opposed to gangs obviously would be consistent with this goal. Thus, we find it unnecessary to modify probation condition No. 94 to specify that it prohibits only piercings that promote gangs or identify appellant as a gang member.
DISPOSITION
The relevant portion of probation condition No. 94 is modified to read as follows: "The minor shall not obtain any piercings known to him to have gang significance or to not be in compliance with Penal Code Section 652(a)." As modified, the judgment is affirmed.