Opinion
H040667
10-28-2014
In re K.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 3-07-JV32555D)
INTRODUCTION
Appellant K.C. challenges several of the probation terms and conditions that the juvenile court imposed after they discharged him from the Department of Juvenile Justice (DJJ) on supervised reentry. For the reasons stated below, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of his underlying commitment offense, K.C. was a member of the "Samoan Bloods" criminal street gang. He had joined the gang because several of his family members were gang members. He had a history of delinquent behavior, including a gang-related robbery and assault.
On January 21, 2010, K.C., who was 17 years old at the time, punched a victim in the face and demanded that he hand over his phone. The victim complied and K.C. got into a vehicle and drove away. An officer later contacted K.C. and searched his bedroom. The officer found a nunchaku hanging on the bedroom wall, and K.C. admitted that the nunchaku belonged to him.
On August 23, 2010, the juvenile court sustained a petition alleging that K.C. committed felony second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and felony possession of a nunchaku (former, § 12020, subd. (a)(1)). The court ordered K.C. committed to the DJJ.
All further statutory references are to the Penal Code, unless otherwise indicated.
Three years later, the juvenile court discharged K.C. from DJJ and held a reentry disposition hearing on December 20, 2013. (Welf. & Inst. Code, § 1766, subd. (b).) The court imposed several terms and conditions of supervised reentry, including some gang conditions. On January 31, 2014, K.C. filed a timely notice of appeal, and identified the order he wished to appeal as the "Terms and Conditions of Probation adopted by the Court on December 20, 2013. Specifically the terms and conditions #15-20."
After reviewing the record on appeal, this court discovered that there were two distinct documents purporting to set forth the probation conditions at issue in this appeal. The first document, entitled "Order of Probation," was signed and filed on December 20, 2013. It listed probation conditions numbered 1-32. The second document, entitled "Delinquency Court Proceeding Findings and Orders" was undated, unsigned, and unfiled by the juvenile court. It listed conditions numbered 1-23. Notably, the two orders varied in the substance, numbering, combination, and organization of the conditions. Because of these discrepancies, this court returned the matter to the juvenile court and ordered it to settle the record as to the final form of the order of probation and the conditions contained therein.
On September 10, 2014, this court received the settled statement from the juvenile court. The court indicated that the document entitled "Delinquency Court Proceeding Findings and Orders" was the final form of the order of probation. We granted the parties an opportunity to file supplemental letter briefs or to seek any additional relief. Both parties have submitted a supplemental letter brief. In his letter brief, K.C. withdrew his challenge to the conditions as identified as condition 21 and 32 in the document entitled "Order of Probation."
DISCUSSION
A. Scope of the Appeal
Before addressing the merits of K.C.'s appeal, we must first discuss the deficiencies in the notice of appeal that preclude us from addressing several of the probation conditions that K.C. seeks to challenge.
In his briefing, K.C. challenges the following four probation conditions the juvenile court imposed: "7. That said subject not use, possess, or be under the influence of alcohol or any of controlled or illegal substance without the legal right to do so and submit to drug and substance abuse testing as directed by the Probation Officer; [¶]. . .[¶] 10. That the subject attend school, vocational training, or maintain full-time employment if in compliance with the mandates of the California Education Code; [¶] . . . [¶] 14. That said subject not be in possession of any drug paraphernalia; [¶] . . . [¶] 16. That said subject not participate in any gang activity and not visit or remain in any specific location known to him to be, or that the Probation Officer informs him to be, an area of gang-related activity." In the notice of appeal, however, K.C. only specified the conditions numbered 15-20 as the conditions he wishes to challenge on appeal.
"Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from." (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.) "Care must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice the respondent." (Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.) While a notice of appeal must be liberally construed (Cal. Rules of Court, rule 8.100), "a notice of appeal which specifies a portion of a judgment may not be stretched beyond its logical limits to include other parts of the judgment." (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1046; see also Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788, 790, fn. 1.)
In this case, the notice of appeal expressly specifies that K.C. is appealing the probation conditions numbered 15-20. Since only those probation conditions are designated in the notice of appeal, the other portions of the order of probation are not properly before us for review on appeal.
We are mindful that at the time K.C. had filed the notice of appeal and his opening brief there were two different documents purporting to set forth the order of probation. In an order dated August 7, 2014, we directed the juvenile court to settle the record as to the final form of the order of probation because we were "unable to ascertain which order . . . and therefore, which conditions" K.C. sought to challenge and as "our jurisdiction is limited to a review of [] the conditions enumerated in the notice of appeal." We granted the parties the opportunity to submit a supplemental letter brief or "to seek any additional relief." (Italics added.) However, at no point after the juvenile court filed the settled statement did K.C. file an amended notice of appeal to include the other probation conditions he sought to challenge. Nor did he provide any further explanation or seek additional relief in his supplemental letter brief. Therefore, as condition 16 is the only condition that is properly before us, we will address only that condition on appeal.
B. Probation Condition 16
K.C. challenges probation condition 16, which mandates that he "not participate in any gang activity and not visit or remain in any specific location known to him to be, or that the Probation Officer informs him to be, an area of gang-related activity." K.C. contends that the condition is both unconstitutionally vague and overbroad.
"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.) Reasonable probation conditions may infringe upon constitutional rights provided they are narrowly tailored to achieve those legitimate purposes. (People v. Olguin (2008) 45 Cal.4th 375, 384; In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) Nevertheless, our Supreme Court has recognized that "[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.]" (Sheena K., supra, at p. 890.) In addition, "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him [or her], 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." (Ibid.)
K.C. argues that the condition provides insufficient notice of what areas or what activities he must avoid. Specifically, he argues that the condition is vague with respect to the terms "gang activity," "specific location," and "area of gang-related activity." K.C. also argues that the condition is overbroad because it infringes his constitutional right to travel and to associate. Additionally, K.C. points out that the condition includes a constructive knowledge element (i.e. "reason to know" language), which he argues is vague and that a requirement of actual knowledge of the forbidden boundaries and locations is necessary. He urges this court to strike the condition, or alternatively, remand the case to juvenile court to specify exactly what locations and activities are forbidden.
In People v. Barajas (2011) 198 Cal.App.4th 748 (Barajas), this court approved a nearly identical probation condition, which stated: " 'You're not to visit or remain in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity.' " (Id. at p. 752; see also In re Shaun R. (2010) 188 Cal.App.4th 1129, 1145.) As with this case, the defendant in Barajas challenged the condition as vague and overbroad. Specifically, the defendant argued that the condition violated his constitutional right to travel and that the knowledge requirement (i.e., "known to him" language) suffers from vagueness or overbreadth because the probationer and the probation officer may have different opinions as to which locations constitute areas of "gang-related activity." (Barajas, supra, at pp. 754, 757.) We rejected defendant's arguments and found that the language of the condition withstood the constitutional challenges. We recognized that in cases dealing with gang conditions, some infringement of constitutional rights is permissible where it is necessary to serve the dual purpose of rehabilitation and public safety. (Id. at pp. 755-756). In those cases, courts have found that a restriction prohibiting a probationer from going to " ' "gang gathering areas" ' " was neither unconstitutionally vague or overbroad and that such a condition was " 'closely tailored to the goal of keeping a probationer out of gang activity . . .' " (Id. at p. 755.) Additionally, we determined that "[t]he knowledge condition suffices to give defendant fair warning of what areas to avoid and ensures that he will not be found in violation due to a factual mistake, accident, or misfortune." (Id. at p. 760.) Although we recognized that "reasonable minds may disagree about where criminal street gang activities occur, defendant cannot be found in violation of this condition for visiting an area of gang-related activity unless there is proof that he knew the nature of the location, possibly by learning it from his probation officer, or by some other means that can be proved up at a violation of probation hearing by a preponderance of the evidence." (Id. at pp. 759-760.)
K.C. cites to In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.) to urge this court to modify the probation condition to specify clear geographical boundaries that K.C. should avoid. In Victor L., the minor challenged a probation condition, which provided that he stay away from " 'areas known by [him] for gang-related activity.' " (Id. at p. 913, fn. omitted.) The appellate court found that the phrase " 'gang-related activity' " was vague and modified the condition, "to provide for the probation officer to notify Victor of the areas he must avoid." (Id. at pp. 914, 917-918.) However, the Victor L. court "did not direct the trial court or the probation officer to exactly specify forbidden areas." (Barajas, supra, 198 Cal.App.4th at p. 759.) "What the modification did was to authorize the probation officer to specify . . . what areas [the minor] should avoid. . . . The modification simply described one method by which the probationer could learn that an area was prohibited." (Ibid.) Indeed, the court in Victor L. only modified the condition to include the following italicized language: " 'The Minor shall not be in any . . . areas known by Minor for gang-related activity (or specified by his probation officer as involving gang related activity.) " (Victor L., supra, at pp. 931-932.) The Victor L. court thus found that the additional language authorizing the probation officer to notify the minor of the gang-related areas made the condition "clear enough to avoid a vagueness challenge and narrow enough to escape a claim of overbreadth." (Id. at 918.) The court also noted that such an approach was not "an unlawful delegation of power to the probation officer, as it does not give him or her an open-ended policy making function." (Ibid.) Rather, the modification "allow[ed] specification of exact limits to be made by the probation officer on an individualized basis." (Ibid.)
We concur with Barajas and Victor L. and conclude that the condition here is not unconstitutionally vague or overbroad, and it requires no further modification. As in Barajas, the condition does not violate K.C.'s constitutional rights to travel and to associate. Indeed, given K.C.'s previous gang affiliation and his delinquency record, the condition is necessary to foster K.C.'s rehabilitation and to promote public safety. Thus, the condition is narrowly drawn to serve these important interests. Furthermore, as in Victor L., the condition includes the language authorizing the probation officer to specify what areas of gang-related activity K.C. should avoid. Therefore, for the same reasons articulated in Victor L., we conclude that the condition is not vague or overbroad, and it allows the probation officer to specify the prohibited areas of gang-related activity on an individualized basis.
Furthermore, we observe that the terms "gang activity," and "area of gang-related activity" are defined in the probation report and can adequately guide the probation officer or the probationer of what activities and locations to avoid. The probation report notes that "the words gang and gang-related activity refer to a criminal street gang as defined in Penal Code Section 186.22, subdivision (e) and (f)." The phrase "gang activity" may reasonably be understood in context to encompass any activity conducted for the "benefit of, at the direction of, or in association with" a criminal street gang. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116-1117 (Acuna); § 186.22.) Similarly, the phrase "gang-related activity" is reasonably understood to include any activity directly related to a gang, such as gathering or socializing with gang members. (See Acuna, supra, at pp. 1116-1117.) We are aware that this court has 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.) However, in light of the legitimate purpose of gang conditions to prevent K.C.'s interaction with criminal street gangs, the phrase "areas of gang-related activity" may be reasonably understood in context as referring to those very specific sites where gang-related activity commonly occurs, not generalized areas within which gang activity takes place. (See Acuna, supra, 14 Cal.4th at pp. 1116-1117.) Moreover, given that probation condition 15 exempts associating with family members, in context, probation condition 16 does not reasonably include K.C.'s family's residence. Thus, as the condition is clear enough to give K.C. fair warning of what areas and activities to avoid, and because the condition is narrowly tailored to achieve the goals of safety and rehabilitation, condition 16 requires no further modification. However, we note that because the particular location of gang-related activity may change over time and areas of gang-related activity are not necessarily static geographical places, the probation department may wish to identify and keep K.C. updated as to specific sites that are off-limits under this condition.
DISPOSITION
The order of probation is affirmed.
/s/_________
RUSHING, P.J.
WE CONCUR: /s/_________
PREMO, J.
/s/_________
ELIA, J.