Opinion
F074951
03-21-2018
In re C.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.M., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJD067475)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
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C.M. was found in contempt of an anti-gang injunction. Specifically, he was determined to have violated the injunction's "Do Not Associate with Gang Members" provision. This provision prohibits gang members subject to the injunction from associating with each other within a designated "Safety Zone." C.M. argues the injunction's prohibition on association is facially unconstitutional, requiring dismissal of his contempt adjudication. We reject this contention and affirm the judgment.
PERTINENT PROCEDURAL HISTORY
On May 10, 2016, the Tulare County District Attorney filed a juvenile petition under the criminal contempt statute, alleging that C.M. had violated a gang injunction to which he was subject. (Pen. Code, § 166, subd. (a)(9).) The injunction at issue was previously entered by the Tulare County Superior Court and served on C.M. At a jurisdictional hearing on November 17, 2016, the juvenile court found the petition's allegations to be true. At a disposition hearing on December 20, 2016, the court placed C.M. on probation.
Subsequent statutory references are to the Penal Code unless otherwise specified.
C.M. was already on probation for other reasons, so the court, in effect, extended his ongoing probation.
During juvenile court proceedings, C.M. sought to raise a demurrer challenging the facial constitutionality of the "Do Not Associate with Gang Members" provision. It does not appear that the trial court actually ruled on the ostensible demurrer. Counsel subsequently challenged the facial constitutionality of the provision at the jurisdictional hearing, when the trial court denied the claim.
APPLICABLE FACTS
The Gang Injunction
Prior to the events giving rise to the instant case, on January 10, 2013, in a separate civil proceeding, the Tulare County Superior Court issued an Order for Final Judgment and Permanent Injunction (gang injunction or injunction) against "the Norteños" criminal street gang and its active members. The injunction enjoins certain activities of the Norteños criminal street gang and its active members in a "Safety Zone" encompassing the adjacent towns of Orosi and Cutler, as well as intervening areas. C.M., a minor at the time of the civil proceeding in which the injunction was issued, was not served in or a party to that proceeding.
The injunction includes 13 prohibitions or directives: (1) do not associate with gang members; (2) no witness intimidation; (3) stay away from guns or illegal weapons; (4) stay away from drugs; (5) no drug sales activities; (6) do not act as a lookout; (7) stay away from alcohol; (8) no trespassing; (9) no graffiti or graffiti tools; (10) do not force any person to join the Norteños criminal street gangs; (11) do not prevent any person from leaving the Norteños criminal street gangs; (12) nighttime curfew; and (13) obey all laws.
In 2015, Tulare County Sheriff's Deputy Victor Bonilla determined that C.M., a minor, was a member of the North Side Orosi subset of the Norteños street gang and served him with the injunction.
Incident Underlying the Instant Juvenile Petition
On May 6, 2016, Tulare County Sheriff's Deputy Javier Montoya was dispatched to assist another deputy in serving a "Promise to Appear" warrant in Orosi. The warrant was not for C.M.; nor does the record disclose any connection between C.M. and the person named in the warrant. C.M. and another minor, J.T., were standing near the residence where the deputies were serving the warrant. Montoya approached the minors, asked them their names, and patted them down for weapons. Montoya requested a records check through dispatch; dispatch informed him that both minors had been served with the gang injunction. Montoya arrested C.M. and transported him to juvenile hall, for violating the "Do Not Associate with Gang Members" provision of the injunction. The instant petition was filed in due course.
J.T., the minor with C.M., was served with the injunction because Deputy Victor Bonilla had determined that, like C.M., he was a member of the North Side Orosi subset of the Norteños gang.
DISCUSSION
Facial Constitutionality of the "Do Not Associate" Provision of the Gang Injunction
The practice of using injunctions based on public nuisance law to abate gang activity in cities and municipalities has gained traction in recent decades. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna); In re Englebrecht (1998) 67 Cal.App.4th 486 (Englebrecht I); People v. Englebrecht (2001) 88 Cal.App.4th 1236 (Englebrecht II); People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506; People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31 (Colonia Chiques); People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866; People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1; People v. Sanchez (2017) 18 Cal.App.5th 727.) C.M. was charged with criminal contempt under section 166, subdivision (a)(9), for violating a gang injunction applicable to the towns of Orosi and Cutler.
Section 166, subdivision (a)(9) makes it a misdemeanor to engage in "[w]illful disobedience of the terms of an injunction that restrains the activities of a criminal street gang or any of its members, lawfully issued by a court." (Italics added.) However, "[s]ettled California law establishes that there can be no contempt of a void injunctive order, and that assertedly unconstitutional injunctive orders are subject to challenge when contempt is charged, and on review of any contempt judgment." (People v. Gonzalez (1996) 12 Cal.4th 804, 808, 816, 823 (Gonzalez); In re Berry (1968) 68 Cal.2d 137, 147 [violation of an unconstitutional order "cannot produce a valid judgment of contempt"]; In re Misener (1985) 38 Cal.3d 543, 558 ["An order of contempt cannot stand if the underlying order is invalid."].)
On appeal, C.M. renews his challenge to the "Do Not Associate with Gang Members" provision of the gang injunction. C.M. argues this provision is facially unconstitutional under the First Amendment to the federal Constitution because it unduly burdens the right to freedom of association. Specifically, he contends that to the extent the provision impinges on "intimate family relationships," and encompasses, in terms of its "geographic scope," the entire towns of Orosi and Cutler, it burdens his right to free association "more than necessary" to abate the underlying, gang-related public nuisance. Since this is an issue of pure law, we exercise our independent review. (See Acuna, supra, 14 Cal.4th at pp. 1136-1137.) We reject C.M.'s contention.
The injunction's "Do Not Associate with Gang Members" provision states:
"DO NOT ASSOCIATE WITH GANG MEMBERS: do not stand, sit, walk, drive, gather, or appear anywhere in public view or any place accessible to the public, with any known member of the NORTEÑOS Criminal Street Gang who is known to you [to] be a NORTEÑO Criminal Street Gang member. This prohibition of association shall not apply to the following situations: (a) when all individuals are inside a licensed school, attending class or on school business. This subsection shall not apply when a parent/legal guardian is driving their children to school, or (b) when all individuals are in a place of worship; or (c) when all individuals are in a classroom attending a licensed gang or drug intervention program, or court ordered programs; or (d) when all individuals are attending a formal funeral service at any cemetery, funeral parlor, or similar business entity; or (e) when all individuals are at a government licensed voting/polling place; or (f) when engaged in lawful employment, which lawful employment can be proven by tax records (including but not limited to a valid W-2); or (g) when with his/her father, mother, siblings, legal guardian, or legal spouse; provided however that this prohibition against associating shall apply to all claims of travel to or from any of these locations listed in (a) through (f)."
We review the constitutionality of a gang injunction that restricts association by considering whether the restriction burdens the constitutional right to free association more than necessary to serve a significant governmental interest. (See Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, 765; Acuna, supra, 14 Cal.4th at pp. 1115, 1120-1122 [an injunction may not impose a greater burden on the constitutional right of free association than necessary to serve a significant governmental interest]; Englebrecht II, supra, 88 Cal.App.4th at p. 1262 [same].) In conducting this inquiry, we bear in mind that because C.M. challenges the "Do Not Associate with Gang Members" provision on its face, his claim "requires, and indeed permits, no factual determination." (Gonzalez, supra, 12 Cal.4th at p. 824.)
The First Amendment protects a limited right of free association. For example, it protects the right to free association for purposes of political and religious expression. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 619, 622 (Roberts); Acuna, supra, 14 Cal.4th at p. 1110 [First Amendment protects association that is "'instrumental' to forms of religious and political expression and activity"].) The First Amendment also protects, as relevant here, the freedom of "intimate" association, i.e., the right to freely "enter into and maintain certain intimate human relationships." (Roberts, supra, at p. 617; Acuna, supra, 14 Cal.4th at p. 1110 [First Amendment protects the freedom of "intimate" association].) The "Do Not Associate with Gang Members" provision at issue here prohibits a gang member covered by the injunction from associating with other covered gang members in public view or a public place, subject to certain exceptions. C.M. argues the provision unconstitutionally burdens the freedom of intimate association because an enjoined gang member's family members and relatives may also be gang members subject to the injunction.
We are not persuaded by C.M.'s constitutional contention. Several cases have upheld the constitutionality of similar, and, in fact, more restrictive, no-association provisions in other gang injunctions. In Acuna, our Supreme Court upheld a provision that restricted association with other gang members on grounds that "[f]reedom of association, in the sense protected by the First Amendment, 'does not extend to joining with others for the purpose of depriving third parties of their lawful rights.'" (Acuna, supra, 14 Cal.4th at p. 1112; see People v. Lopez (1998) 66 Cal.App.4th 615, 627-628 ["The right to associate ... 'may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.'") Englebrecht II also upheld a no-association provision in a gang injunction, noting:
"Collective activity by gang members is at the core of the nuisance the injunction justifiably attempts to abate. While it may be that many gang members are also related by family, and while the injunction's associational restrictions may affect, in the target area, contact between those family members, those facts are not determinative. The injunction places no restrictions on contact between any individuals outside the target area. In the target area[,] the injunction merely requires gang members not to associate in public. While the injunction may place some burden on family contact in the target area, it by no means has, in our view, a fundamental impact on general family association. [¶] Any attempt to limit the familial associational impact of the injunction would make it a less effective device for dealing with the collective nature of gang activity. Englebrecht makes much of the point that gang and familial ties often overlap and gang membership is often multigenerational. While such observation shows the possible unintended effect of gang association restrictions on families, it also indicates that any change in the injunction to allow greater association of family related gang members would tend to limit the effectiveness of the association provisions. Such a limitation on the injunction would in general also make it more difficult to enforce. [¶] We conclude the injunction as issued has a limited impact on familial relationships. We also conclude any liberalization of the injunction to try to allow greater familial contact in the target area would limit the effectiveness of the injunction. The injunction as issued does not impermissibly burden Englbrecht's associational rights." (Englebrecht II, supra, 88 Cal.App.4th at p. 1263.)We agree with the basic rationale explicated in Englebrecht II. Other cases, including Colonia Chiques, supra, 156 Cal.App.4th at p. 37, People ex rel. Reisig v. Acuna, supra, 182 Cal.App.4th at p. 869, and Englebrecht I, supra, 67 Cal.App.4th at p. 496 ["familial nexus is not carte blanche for creating a public nuisance"], have also, for the same reasons, upheld no-association provisions similar to the one at issue here.
C.M. contends the holdings of the prior cases do not apply here because the geographic scope of the instant injunction is unique, in that it encompasses the entire towns of Orosi and Cutler. C.M. is correct that none of the previous cases to consider the issue involved a situation where the relevant restriction on association applied to entire towns, as it does here. Rather, in prior cases, the injunction at issue applied to target zones ranging from a four-block area (Acuna) to a 6.6 square-mile area (Colonia Chiques), within larger communities. (See Acuna, supra, 14 Cal.4th at p. 1100 [gang injunction applied to four-block area in Rocksprings neighborhood of San Jose]; Colonia Chiques, supra, 156 Cal.App.4th at p. 37 [injunction applied to 6.6-square-mile safety zone in Oxnard]; People ex rel. Reisig v. Acuna, supra, 182 Cal.App.4th at p. 869 [injunction area was 2.98 square miles in City of West Sacramento]; Englebrecht II, supra, 88 Cal.App.4th at p. 1242 [injunction applied to one-square-mile target zone in City of Oceanside].)
On the other hand, although the restrictions in prior cases as well as in this case, burden only association in "public view" and/or a public place, the restrictions on association upheld in prior cases were far more restrictive, in substantive terms, than the provision at issue here. The "Do Not Associate with Gang Members" provision in the instant injunction contains a critical exception for an enjoined gang member's association "with his/her father, mother, siblings, legal guardian, or legal spouse." Similarly, the prohibition on association does not apply when the enjoined person is "inside a licensed school, attending class or on school business," "driving [his/her] children to school," "in a place of worship," "in a classroom attending a licensed gang or drug intervention program," "attending a formal funeral service," "at a government licensed voting/polling place," "attending a licensed gang or drug intervention program, or court ordered program," or "engaged in lawful employment." In contrast, the restriction our Supreme Court upheld in Acuna did not exempt association with members of the enjoined person's nuclear family or legal guardian; nor did it carve out schools, churches, polling places, funerals, and the enjoined person's place of employment, from its purview. (See Acuna, supra, 14 Cal.4th at p. 1110.) Similarly, the restriction on association upheld in Colonia Chiques did not contain any exception for association with members of the enjoined person's nuclear family or legal guardian and included only a limited exemption for association within schools, churches, and places of business. (Colonia Chiques, supra, 156 Cal.App.4th at pp. 45-46.) The restriction upheld in People ex rel. Reisig v. Acuna, supra, 182 Cal.App.4th 866, was basically similar to the one upheld in Colonia Chiques. As for the no-association provision in Englebrecht II, it contained an exception for association between parents and children but did not exempt any premises (such as schools and churches) or activities within the target area from its purview; the no-association provision in Englebrecht I did not have an exception for either association between parents and children or for specific types of premises or activities within the target area. (Englebrecht II, supra, 88 Cal.App.4th at p. 1243, fn. 2; Englebrecht I, supra, 67 Cal.App.4th at p. 490, fn. 3.)
It must be noted, however, that the injunction at issue in Acuna was a preliminary rather than a permanent, injunction against individual gang members, all of whom were named in the injunction itself and none of whom actually lived in the four-block target area encompassed by the injunction. (Acuna, supra, 14 Cal.4th at pp. 1100-1101.)
Thus, while the geographic scope of the injunction at issue here encompasses two entire towns—albeit small, rural ones—the "Do Not Associate with Gang Members" provision is less restrictive in terms of the substantive burden imposed on family relationships than no-association provisions upheld in other cases. This is significant because we must consider the geographic scope of the injunction in relation to the actual burden it imposes on the right of intimate association. Stated differently, a less burdensome restriction on the right of intimate association may be applied more expansively, in geographic terms, than a stricter restriction, to combat a gang related nuisance consistent with Constitutional requirements.
C.M. cites census data showing that Orosi and Cutler cover 2.4 and 0.8 square miles respectively, and have populations of 8,770 and 5,000 respectively. --------
Here, the restriction on intimate association effected by the "Do Not Associate with Gang Members" provision is not absolute. The provision only applies to association that occurs in "public view" or a public place; it also contains exceptions for associating with nuclear family members, and does not apply to various types of premises or activities. In light of the limited and incidental burden imposed on family relationships, we cannot say that the fact that this provision applies to the entire towns of Orosi and Cutler automatically renders it invalid. Nor can C.M. show, based only on the face of the injunction, that the gang related nuisance activity that justified its issuance in the first instance, did not extend throughout both towns (essentially a foregone conclusion in any event, as the towns collectively cover an area not much larger than three square miles).
We conclude the "Do Not Associate with Gang Members" provision is not, on its face, more burdensome than necessary to serve a significant governmental interest, i.e., abating the underlying gang-related nuisance. It is therefore facially valid.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.