Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC828809
ELIA, Acting P. J.
Luis Manuel Flores pleaded no contest to receiving stolen property (Pen. Code, § 496, subd. (a)) as part of a negotiated plea providing for dismissal of another count and a grant of probation that included serving a 60-day jail term. The court suspended imposition of sentence and placed defendant on formal probation for three years.
All further statutory references are to the Penal Code.
On appeal, defendant Flores challenges gang-related probation conditions. We either strike or modify the challenged conditions and affirm.
Although defendant argues in his opening brief that conditions nine through 14 (numbered in probation officer's recommendations) are unconstitutionally vague and overbroad, he does not make any specific argument or cite any authority with regard to the probation condition that forbids defendant from being "on or adjacent to any school campus during school hours, unless enrolled or with prior administrative permission or prior permission of the probation officer" and it appears he is not challenging this condition. Any challenge to the condition regarding school campuses has been waived on appeal. (See People v. Stanley (1995) 10 Cal.4th 764, 793.)
A. Procedural History
At the time of sentencing, counsel objected to the imposition of gang conditions on the ground that they were not reasonably related to defendant's crime. The deputy district attorney told the court that defendant had admitted being associated with a Sureno gang and, in response, the court indicated that defendant had a "well-documented" gang relationship.
In a document entitled "Santa Clara County Memorandum, Waived Referral," filed on the date of sentencing, a probation officer stated that "[i]nformation in the police report indicates the defendant admits association with a Sureno Gang." The court orally imposed gang conditions and the minute order reflects standard gang orders, including a gang registration requirement, and a probation condition forbidding new gang tattoos.
B. Probation Conditions
1. Gang Registration
The preprinted, standard "gang orders" contained in the January 23, 2009 minute order are check-marked. Those "gang orders" require defendant to, among other things, "[r]egister as required by law due to gang association." Section 186.30's gang registration requirements "apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses: [¶] (1) Subdivision (a) of Section 186.22 [active participation in criminal street gang]. [¶] (2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true [felony committed for benefit of, at the direction of, or in association with criminal street gang]. [¶] (3) Any crime that the court finds is gang related at the time of sentencing or disposition."
In this case, the court did not find that the crime to which defendant pleaded was, in fact, gang related and it did not orally impose any registration requirement as a condition of probation. Defendant asserts, and Attorney General concedes, that the registration condition must be stricken. This is correct since the inclusion of the registration requirement in the minute order presumably was clerical error. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 ["An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize"], 186-187 [an appellate court that properly assumes or retains jurisdiction of a case may correct clerical errors upon motion of a party or its own motion]; People v. Mesa (1975) 14 Cal.3d 466, 471 ["a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error"].)
2. Gang Conditions Reasonably Related to Future Criminal Activity
Defendant now insists that the gang conditions were not reasonably related to the offense to which he pleaded or to future criminal activity. He maintains that "there was no evidence gang membership played any role" in his crime. He also suggests that these conditions do not reasonably relate to deterring future criminal activity in his particular circumstances and are too "sweeping."
Defendant waived his present claim that the gang conditions are unreasonable because they are not reasonably related to future criminality by failing to object on this ground below and by limiting his objection to the ground that those conditions were not reasonably related to the crime to which he had pleaded no contest. (See People v. Welch (1993) 5 Cal.4th 228, 237.) Moreover, properly drawn gang conditions are reasonably related to preventing future criminality where a defendant has acknowledged association with a criminal street gang and a court acts within its discretion in imposing them under such circumstances.
On appeal, defendant does not now dispute that he had admitted to police he was a gang member. Defendant waived any objection to the probation officer's report by failing to object below (see People v. Welch, supra, 5 Cal.4th at pp. 234-235).
The superior court is statutorily authorized to impose all "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer...." (§ 1203.1, subd. (j).) "In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
"We review conditions of probation for abuse of discretion. (Carbajal, supra, 10 Cal.4th at 1121...; People v. Welch (1993) 5 Cal.4th 228, 233....)" (People v. Olguin (2008) 45 Cal.4th 375, 379.) "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.] 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." (People v. Lent (1975) 15 Cal.3d 481, 486.)
"This test [for abuse of discretion] 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 [as] the condition is reasonably related to preventing future criminality. (See Carbajal, supra, 10 Cal.4th at 1121....)" (People v. Olguin, supra, 45 Cal.4th at pp. 379-380.)
In People v. Lopez (1998) 66 Cal.App.4th 615, the probation report indicated that Lopez was an admitted Norteno gang member. (Id. at p. 622.) Even though there was nothing in the record to suggest that Lopez's crime was gang related, the trial court imposed gang-related probation conditions. (Id. at pp. 622-623.) The reviewing court upheld their imposition, observing that gang-related conditions imposed upon juvenile offenders have been upheld. (Id. at p. 624.) It concluded that "probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders such as Lopez" since "[t]he path from gang associations to criminal gang activity is open to adults as well as to minors." (Id. at p. 625.) Therefore, those conditions "promoted section 1203.1's goals of rehabilitation and public safety by forbidding conduct reasonably related to future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.)" (Id. at p. 626.)
Lopez reached the correct conclusion. A criminal street gang by definition has "as one of its primary activities the commission of one or more of [specified] criminal acts" (§ 186.22, subd. (f).) As Lopez observed, "[b]ecause '[a]ssociation with gang members is the first step to involvement in gang activity,' such [gang] conditions have been found to be 'reasonably designed to prevent future criminal behavior.' (In re Laylah K., supra, 229 Cal.App.3d at pp. 1501, 1503.)" (People v. Lopez, supra, 66 Cal.App.4th at p. 624.)
3. Constitutionality of Specific Probation Conditions
a. Infringement of Probationer's Constitutional Rights
Defendant contends that the gang conditions impermissibly infringe upon a host of constitutional rights and, in addition, they fail to give adequate notice of what is prohibited in violation of due process. While a probationer does not surrender all constitutional rights, it is well that settled that "probation is a privilege and not a right" (People v. Olguin, supra, 45 Cal.4th at p. 384) and "[i]nherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citation.]" (U.S. v. Knights (2001) 534 U.S. 112, 119 [122 S.Ct. 587]; see Griffin v. Wisconsin (1987) 483 U.S. 868, 874 [107 S.Ct. 3164] [probationers "do not enjoy 'the absolute liberty to which every citizen is entitled, but only... conditional liberty properly dependent on observance of special [probation] restrictions.' [Citation.]"].) Reasonable probation conditions may infringe upon constitutional rights provided they are narrowly tailored to achieve legitimate purposes. (See People v. Olguin, supra, 45 Cal.4th at p. 384; In re Sheena K. (2007) 40 Cal.4th 875, 890.) "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 unconstitutionally overbroad. [Citation.]" (In re Sheena K., supra, 40 Cal.4th at p. 890.)
Further, "[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,' if it is to withstand a [constitutional] challenge on the ground of vagueness. [Citation.]" (In re Sheena K., supra, 40 Cal.4th at p. 890.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' (People v. Castenada (2000) 23 Cal.4th 743, 751....) The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' (ibid.), protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' (Ibid.)" (Ibid.) "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.]' (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115....)" (Ibid.)
Although the rule that objections not timely raised in the trial court are forfeited on appeal generally applies to probation conditions, a defendant may, for the first time on appeal, attack probation conditions on the limited ground that they are unconstitutionally vague or overbroad on their face. (Id. at pp. 887-888.) A successful challenge on the ground of facial vagueness or overbreadth may be remediable on appeal by modification of the probation condition. (Id. at p. 888.)
b. Association with Gang Members
The court imposed a condition prohibiting defendant from "associat[ing] with individuals identified as members of a criminal street gang, as identified by the probation department." Defendant asserts that he has a right of association under the First Amendment to the United States Constitution and under Article I, section 3 of the California Constitution and that this condition is "unconstitutionally vague and overbroad because it did not require him to know of whom probation disapproved and because it gave the probation officer unbridled discretion in determining" the persons with whom he may not associate. He complains that the probation condition gives the probation officer "unchecked authority" and does not establish any standard for determining who is a gang member. He voices concern that the probation officer might decide that his family members are gang members, and thereby preclude him from living with his family, or that his classmates are gang members, and thereby prevent him from going to school.
The freedom of association under the federal Constitution receives protection as a fundamental element of personal liberty and as an aspect of the First Amendment. (Roberts v. U.S. Jaycees (1984) 468 U.S. 609, 617-618 [104 S.Ct. 3244].) "[U.S. Supreme Court] decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties." (Ibid.)
Nothing in the appellate record indicates that defendant attends any school or that any family member has been identified as a gang member.
The Supreme Court in In re Sheena K., supra, 40 Cal.4th 875, considered a probation condition forbidding association with "anyone disapproved of by probation." (Id. at p. 878.) The court concluded that "in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague" because "the 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, fn. omitted.) It further agreed that "modification to impose an explicit knowledge requirement [was] necessary to render the condition constitutional. (See, e.g., Justin S., supra, 93 Cal.App.4th at p. 816... [probation condition modified to forbid the minor's association ' "with any person known to you to be a gang member" ']; People v. Lopez, supra, 66 Cal.App.4th at p. 629, fn. 5... [condition of probation modified to prohibit defendant from associating ' "with any person known to defendant to be a gang member" ']; People v. Garcia (1993) 19 Cal.App.4th 97, 103... [condition of probation modified to provide that the defendant 'is not to associate with persons he knows to be users or sellers of narcotics, felons, or ex-felons'].)" (Id. at p. 892.) As previously stated, "[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[]'...." (Id. at p. 890.)
The Supreme Court approved the appellate court's modification of the probation condition at issue in Sheena K. by inserting an explicit knowledge requirement. (Id. at p. 892.) It suggested that, in the future, such probation condition should "explicitly direct[] the probationer not to associate with anyone 'known to be disapproved of' by a probation officer or other person having authority over the minor." (Ibid.)
In this case, the probation condition prohibiting association with gang members does not require defendant to have knowledge of the persons identified as gang members by the probation department. This omission is remedied by modification, as directed below. As to defendant's contention that the probation condition is also overbroad because it unconstitutionally gives the probation officer "unbridled discretion" in deciding with whom defendant cannot associate, we reject it.
In People v. O'Neil (2008) 165 Cal.App.4th 1351, the probation condition prohibited the defendant from associating with " '... any person, as designated by your probation officer.' " (Id. at p. 1354.) This condition permitted "the probation officer to banish the defendant by forbidding contact with his family and close friends, even though such a prohibition may have no relationship to the state's interest in reforming and rehabilitating the defendant." (Id. at p. 1358.) The appellate court struck down the probation condition, explaining: "It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association. Since the condition in this case contains no such standard by which the probation department is to be guided, the condition is too broad and must either be stricken or rewritten to provide the necessary specificity." (Id. at p. 1359.)
In this case, unlike O'Neil, the probation condition designates the class of persons with whom defendant may not associate, "individuals identified as members of a criminal street gang," and it is not completely open-ended. (See § 186.22, subd. (f) [defining "criminal street gang"].) Thus, the probation department's authority is properly circumscribed and any determination by the probation department that someone is a member of a criminal street gang presumably must be objectively reasonable. (See People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [probation condition requiring defendant to "[f]ollow such course of conduct as the probation officer may prescribe" did not authorize officer to make irrational demands upon defendant]; see also § 1202.8 ["Persons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation"].)
As to defendant's concern that the probation department might identify family members or classmates as gang members or might arbitrarily or unreasonably decide that particular persons are gang members, these are "as applied" issues that are not reachable on this facial constitutional challenge. (See In re Sheena K., supra, 40 Cal.4th at pp. 887 ["a probation condition may not be patently unconstitutional but may suffer nonetheless from vagueness or overbreadth"]; 889 [challenges to probation conditions involving questions of fact are subject to traditional objection and waiver principles].)
c. Gang-Related Activity
Defendant challenges the probation condition that prohibits him from "frequent[ing] any areas of gang-related activity" and from "participat[ing] in gang activity, except as directed by the probation officer." He asserts that this condition "fails to provide adequate notice of what is prohibited" and is so vague and overbroad that it impermissibly infringes on the rights to loiter and to travel. He insists that the words "area" and "gang activity" have such an uncertain meaning that the condition must be deemed unconstitutional. Defendant complains that the order provides no direction as to "what constitutes 'gang activity,' how much activity is required for an area to be off limits, and how much area would be covered." He ponders whether an area would be off-limits if a gang-related crime occurred there 10 years ago.
The language of the recommended probation condition differed slightly: "The defendant shall not frequent any areas of gang-related activity and not participate in any gang activity, as directed by the Probation Officer." "The usual and ordinary meaning of 'participates' is 'to take part in something (as an enterprise or activity).' ([(Webster's 3d New Internat. Dict. (1961)] p. 1646.)" (People v. Castenada (2000) 23 Cal.4th 743, 747.)
A plurality of the United States Supreme Court has recognized that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment." (City of Chicago v. Morales (1999) 527 U.S. 41, 53 [119 S.Ct. 1849], fn. omitted (plur. opn. of Stevens, J.).)
Although "[t]he word 'travel' is not found in the text of the [federal] Constitution," "the 'constitutional right to travel from one State to another' is firmly embedded in [U.S. Supreme Court] jurisprudence. United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966)." (Saenz v. Roe (1999) 526 U.S. 489, 498 [119 S.Ct. 1518].) "The right to travel has been described as a privilege of national citizenship, and as an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments." (Jones v. Helms (1981) 452 U.S. 412, 418-419 [101 S.Ct. 2434]; see Attorney General of New York v. Soto-Lopez (1986) 476 U.S. 898, 902 [106 S.Ct. 2317] (plur. opn. of Brennan, J.) ["textual source of the constitutional right to travel, or, more precisely, the right of free interstate migration" "has been variously assigned to the Privileges and Immunities Clause of Art. IV," "to the Commerce Clause," "to the Privileges and Immunities Clause of the Fourteenth Amendment," and "has also been inferred from the federal structure of government adopted by our Constitution"].) "The 'right to travel' discussed in [the U.S. Supreme Court] cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." (Saenz v. Roe, supra, 526 U.S. at p. 500.) In addition, "[t]he right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution. (In re White (1979) 97 Cal.App.3d 141....)" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100; see In re White (1979) 97 Cal.App.3d 141, 148 ["the right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole"].)
Defendant also argues that the term "gang" is "unconstitutionally vague and overbroad because the term on its face has an uncertain meaning" because the word "could apply to any group of people, even if they or the group are not engaged in illegal activity." Citing In re Vincent G. (2008) 162 Cal.App.4th 238, he maintains that the term must be modified to refer to criminal street gangs. In In re Vincent G., the appellate court modified the probation condition to define "gang" to mean "a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f)" after noting another appellate court had made the same modification in response to a vagueness challenge. (In re Vincent G., supra, 162 Cal.App.4th 238, 247; see People v. Lopez (1998) 66 Cal.App.4th 615, 631-634, 638.)
We find that the meaning of the term "gang" may be reasonably understood to mean "criminal street gang" under the circumstances (see In re Justin S. (2001) 93 Cal.App.4th 811, 816, fn. 3; People v. Lopez, supra, 66 Cal.App.4th at pp. 631-632 ["when 'gang' is considered in the context in which it is found in condition No. 15, and with regard for the purpose of the provision..., it is apparent the word was intended to apply only to associations which have for their purpose the commission of crimes"]; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116-1117 [when considered in context, language may have "constitutionally sufficient concreteness"]). Nevertheless, we modify this probation condition to expressly refer to a "criminal street gang" to eliminate any due process concerns.
The People concede that this condition lacks a knowledge requirement and suggest that the clause "[d]o not frequent any areas of gang-related activity" be replaced by "defendant shall not frequent any areas that you know, or the Probation Department informs you, are frequented by gang members." We agree that the condition must be modified by inserting an explicit knowledge requirement. (See In re Sheena K., supra, 40 Cal.4th at pp. 891-892.) We do not, however, adopt the People's formulation. Potential vagueness problems arise from the use of the verb "frequent" with respect to defendant because the word creates an ambiguity whether defendant is permitted to visit those areas occasionally. (See Webster's 3d New Internat. Dict. (1993) p. 909 [verb "frequent" commonly means "to associate with, be in, or resort to often or habitually: visit often"].) It is most dubious, however, that the trial court intended to allow defendant to occasionally visit "areas of gang-related activity." According to the Oxford American Thesaurus of Current English, synonyms for the verb "frequent" include the word "visit" and the informal phrase "hang out at." (The Oxford American Thesaurus of Current English (1999). <http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t22.e5712 [as of Oct. 29, 2009].) To avoid any vagueness problem with respect to this probation condition, the word "visit" will be substituted for the word "frequent" with respect to defendant.
In context, the phrase "gang activity" may reasonably be understood to encompass any activity conducted for the benefit of, at the direction of, or in association with a criminal street gang and the phrase any "gang-related activity" may reasonably be understood to further include any activity directly related to a gang, such as gathering or socializing with gang members. (See People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1116-1117.) We are aware that this court has previously suggested that "[a]n area with 'gang related activity' might be, in some instances, an entire district or town." (In re H.C. (2009) 175 Cal.App.4th 1067, 1072; but see In re Michael D. (1989) 214 Cal.App.3d 1610, 1616-1617 [probation condition requiring a "minor to stay out of known 'gang gathering areas' " was "neither unreasonably vague nor unconstitutional" where "minor was a self-confessed member of the Middleside gang in Santa Ana"].) Obviously, if the phrase "areas of gang-related activity" were understood very expansively to encompass an entire city, it most certainly would be unconstitutionally overbroad because it would not be closely tailored to serve the legitimate purposes of probation.
We recognize that, if considered out of context, the phrase "areas of gang-related activity" suffers from both geographical and temporal imprecision. However, in light of the general purpose of gang conditions to prevent defendant's interaction with criminal street gangs, the phrase may be reasonably understood in context as referring to those very specific sites where gang-related activity is commonly occurring (see People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1116-1117; cf. People v. Lopez, supra, 66 Cal.App.4th at pp. 631-632), such as a particular apartment or street corner, and not to a location where a gang crime merely occurred a decade past, not to an entire municipality within whose borders gang-related activity occurs, and not to all the territory claimed by a gang. Because the particular location of gang-related activity may change over time and these areas are not necessarily static geographical places, the probation department may wish to identify these sites and communicate them with particularity to defendant.
d. Gang Items and Gang Tatoos
A probation condition requires defendant to "not use, display, or possess any insignia, emblem, button, badge, cap, hat, scarf, bandana, jacket, or any other article of clothing or any other item which is evidence of affiliation with/or membership in a criminal street gang." Another condition prohibits defendant from "obtain[ing] any new gang-related tattoos." Defendant declares that he has a right to free speech under the First Amendment to the United States Constitution and under Article I, sections 2 and 3 of the California Constitution, which includes a right to display a symbol that "communicates a message, such as affiliation or support for a group...."
The United States Constitution generally protects freedom of speech, certain symbolic or expressive conduct, and the liberty to make certain intimate personal choices. (See U.S. Const., Amends. 1, 14; Kelley v. Johnson (1976) 425 U.S. 238, 244 [96 S.Ct. 1440] [assuming for purposes of deciding the case that "the citizenry at large has some sort of 'liberty' interest within the Fourteenth Amendment in matters of personal appearance"]; Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 505, 511 [89 S.Ct. 733] [wearing of an armband to express viewpoint is symbolic act generally protected by First Amendment]; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 750 [recognizing liberty interest in personal dress and appearance]; People v. Beach (1983) 147 Cal.App.3d 612, 622 ["The right to acquire, own, enjoy and dispose of property is... a basic fundamental right guaranteed by the Fourteenth Amendment to the United States Constitution"].)
Defendant asserts that both conditions are unconstitutionally vague since they do not provide sufficient notice of what is prohibited and are overbroad because they possibly include ordinary, seemingly neutral things. He notes that Surenos are often associated with the color blue, the number 13, and the letter S and Nortenos are often associated with the color red, the number 14, and the letter N. He inquires if the gang item prohibition includes all blue clothing or a blue stapler or blueberries and asks whether he would be "prohibited from possessing clothing that states it is size 13 on the label" or a calendar (that impliedly includes the number 13) or "a book with at least 13 pages." Both the vagueness problems and the overbreadth problems are remedied by inserting an explicit knowledge requirement in both conditions. (See In re Sheena K., supra, 40 Cal.4th at pp. 891-892.) This addition effectively limits the prohibited items to those defendant actually knows are evidence of affiliation with, membership in, criminal street gangs and effectively limits the prohibited tattoos to those he actually knows are gang-related. For example, if a specific brand or particular color of clothing is known by defendant to be associated with gang membership, it is a prohibited item. The probation department may inform defendant of specific items within these categories as needed. But common sense tells us that blueberries and page 13 in all books or the 13th of every month in all calendars are not demonstrative of affiliation with or membership in a criminal street gang without more. As to tattoos, certainly any tattoo that expresses affiliation with, membership in, or support of criminal street gangs is "gang-related."
e. Attendance at Court Proceedings
A probation condition forbids defendant from "appear[ing] in court at any court proceeding unless a party or a defendant in a criminal action or subpoenaed as a witness or with the prior permission of the probation officer." Defendant argues that this condition is constitutionally invalid because it "amounts to a blanket ban on viewing all court proceedings without consideration of the individual nature of the case" and regardless of the risk of witness intimidation or the legitimate reasons for attending a court proceeding. As defendant mentions, a "person may agree to testify or to speak at a sentencing hearing without the need of subpoena," a person may be required to respond to a jury summons, or a person may wish to attend a court proceeding involving a family member or close friend. He points out that the public has general right to attend court proceedings arising from the First Amendment to the United States Constitution.
But felons cannot generally serve on juries. (See Code Civ. Proc., § 203, subd. (a)(5) [persons "convicted of malfeasance in office or a felony" are not "eligible and qualified to be prospective trial jurors"]; Pen. Code, § 893, subd. (b)(3) [person "convicted of malfeasance in office or any felony or other high crime" is "not competent to act as a grand juror"].)
"[T]he right [of the general public] to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and 'of the press could be eviscerated.' [Citation.]" (Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 580, fn. omitted [100 S.Ct. 2814] (plurality opn.); see Globe Newspaper Co. v. Superior Court for Norfolk County (1982) 457 U.S. 596, 603-605 [102 S.Ct. 2613].) "[I]n general, the First Amendment right of access applies to civil proceedings as well as to criminal proceedings." (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1209; see Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at p. 580, fn. 17 [noting that "historically both civil and criminal trials have been presumptively open"].)
In addition, this probation condition may implicate due process rights. As indicated above, the freedom to loiter for innocent purposes appears to be an aspect of liberty protected by due process. (City of Chicago v. Morales, supra, 527 U.S. at p. 53 (plur. opn. of Stevens, J.) "[The United States Supreme Court has] expressly identified this 'right to remove from one place to another according to inclination' as 'an attribute of personal liberty' protected by the Constitution. [Citations.] Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is 'a part of our heritage' [citation], or the right to move 'to whatsoever place one's own inclination may direct' identified in Blackstone's Commentaries. [Citation.]" (Id. at pp. 53-54, fn. omitted.)
In People v. Perez (2009) 176 Cal.App.4th 380, an appellate court struck down 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 was neither "limited to protecting specific witnesses or parties" nor "confined to trials involving gang members" and, as written, it was "so broad" that it prevented activities unrelated to future criminality. (Id. at p. 384.) The same is true here.
The general ban on defendant being present at any court proceeding, except when he is a party, a criminal defendant, or a subpoenaed witness, is overbroad and unnecessarily impinges upon constitutional rights. It is not narrowly tailored to prevent future criminality. (See In re Sheena K., supra, 40 Cal.4th at p. 890.) The general ban can be rendered constitutional by forbidding defendant from being in court at any court proceeding when he knows a member of a criminal street gang is present or he knows the proceeding concerns a member of a criminal street gang. (Id. at pp. 891-892.)
Disposition
The portion of the "gang orders" set forth in the minute order requiring defendant to register as required by law due to gang affiliation is stricken. The remaining challenged probation conditions are modified as follows:
Do not associate with individuals whom you know are members of a criminal street gang, including those persons you know have been identified as members of a criminal street gang by the probation department.
Do not visit the specific locations where you know gang-related activity commonly occurs, including those areas you know have been specifically identified as such locations by the probation department, and do not participate in any activity you know is criminal street gang activity, or the probation department informs you is criminal gang activity.
Do not use, display, or possess any insignia, emblem, button, badge, cap, hat, scarf, bandana, jacket, other article of clothing, or item that you know is evidence of affiliation with, or membership in, a criminal street gang.
Do not obtain any new tattoo that you know is gang-related.
Do not appear in court at any court proceeding if you know 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, a defendant in a criminal action, or you are subpoenaed as a witness, or you have the prior permission of the probation officer.
As modified, the judgment is affirmed. Upon remand, the trial court shall amend the order granting probation to reflect the above changes to the probation conditions.
WE CONCUR: MIHARA, J., McADAMS, J.