(San Mateo County Super. Ct. No. 78739), Hon. Marta S. Diaz.
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
This case exemplifies a growing trend among juvenile delinquents placed on probation: challenging conditions of probation in the appellate courts without having objected to the same conditions at the time they were imposed. This approach has perhaps been inspired by In re Sheena K. (2007) 40 Cal.4th 875, 889-890, in which the Supreme Court acknowledged the viability of such challenges, so long as they present pure questions of law based solely on facial constitutional grounds and do not require a review of the sentencing record, and are easily remediable on appeal.
We address in this case six conditions of juvenile probation contained on preprinted forms designed for use with juvenile probationers who are gang members or at risk for gang membership. The conditions in question are wide-ranging in content, including restrictions on association with disapproved individuals, being in the presence of dangerous or deadly weapons, being in areas of "gang-related activity," possession of cell phones and other wireless communication devices, use of computers and the Internet, and the future acquisition of tattoos. They are challenged on grounds that they are vague and overbroad, as well as impairing the right to travel and First Amendment freedoms.
The Attorney General concedes that one of the conditions must be modified. We conclude that three others should also be modified in order to avoid unconstitutional vagueness. Except as modified, we affirm the judgment.
Appellant Victor L. was adjudged a ward of the court under Welfare and Institutions Code section 602*fn1 based on his no contest plea to a misdemeanor violation of Penal Code section 12020, subdivision (a) (possession of specified illegal weapons).
Officers of the police gang unit responded to a call complaining that a group of gang members, all wearing blue, were drinking alcohol in the middle of the street. As the police arrived, they found Victor seated in the driver's seat of a car blocking the street, with several young men as passengers, and a group of other young men congregated around the car. The individuals surrounding the car quickly disbursed. The police signaled for Victor to pull to the curb. Victor and one of the passengers were known to the detaining officer as members of the San Mateo Sureños street gang.
After the officers learned that Victor had been driving without a license, they decided to tow the car. During an inventory search, the police recovered a two-foot long metal bar and a three- to four-inch long screwdriver under the driver's seat, within reach of the driver, as well as a sawed-off, operational, loaded pellet gun in the trunk of the car.
Victor had previously admitted to the arresting officer that he was a member of the San Mateo Sureños. He told the police and probation officers that most of his friends were Sureños, and when he was not at work, he hung out with his Sureño friends. He told the arresting officer he had the weapons in his car to protect himself against Norteños, but later denied this statement when interviewed by the probation officer.
Victor, who was just a few days shy of his 18th birthday, was originally referred to probation on three charges, one of them being felony participation in a criminal street gang. (Pen. Code, § 186.22, subd. (a).) He was charged on only two counts: driving without a license (Veh. Code, § 12500, subd. (a)) and manufacture or possession of a dangerous weapon, a wobbler (Pen. Code, § 12020, subd. (a)). Upon his misdemeanor plea to a violation of Penal Code, § 12020, subdivision (a), the other charge was dismissed.*fn2
The court calculated the maximum period of confinement as one year, but granted Victor probation, ordering him to live with his parents under supervision of the probation officer. The only issues on appeal involve the validity of various conditions of probation.
Victor claims that the following conditions of probation are facially unconstitutional and must be modified or stricken:
1. that he "not associate with anyone with whom a parent or the Probation Officer prohibits association";
2. that he not "remain in any building, vehicle or in the presence of any person where any dangerous or deadly weapons or firearms or ammunition exist";
3. that he stay away from "areas known by him for gang-related activity";
4. that he "not be in possession of any paging device or any other portable communication equipment, including but not limited to, scanners, without the express permission of the probation officer";
5. three conditions limiting access to the Internet, namely (a) that he "shall not access or participate in any Social Networking Site, including but not limited to Myspace.com";*fn3 (b) that he "not use, possess or have access to a computer which is attached to a modem or telephonic device"; and (c) that he "shall not be on the Internet without school or parental supervision"; and
6. that he not obtain "any new tattoos, brands, burns or voluntary scarring."
Victor challenges the first three conditions listed above on grounds of vagueness and overbreadth, the second and third conditions as impinging upon his constitutional right to travel, the fourth and fifth conditions as overbroad, and the sixth condition as overbroad as applied to him because it was imposed after his 18th birthday.
A. The General Legal Principles
"The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents" (In re Antonio R. (2000) 78 Cal.App.4th 937, 941 (Antonio R.)), thereby occupying a "unique role... in caring for the minor's well being." (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500 (Laylah K.).) In keeping with this role, section 730, subdivision (b), provides that the court may impose "any and all reasonable [probation] conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced."
The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. "[E]ven where there is an invasion of protected freedoms `the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.' " (Ginsberg v. New York (1968) 390 U.S. 629, 638.) This is because juveniles are deemed to be "more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed." (Antonio R., supra, 78 Cal.App.4th at p. 941.) Thus, " `a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " (In re Sheena K., supra, 40 Cal.4th 875, 889 (Sheena K.); see also In re R.V. (2009) 171 Cal.App.4th 239, 247; In re Frank V. (1991) 233 Cal.App.3d 1232, 1242-1243 [rule derives from court's role as parens patriae].)
Of course, the juvenile court's discretion is not boundless. Under the void for vagueness doctrine, based on the due process concept of fair warning, an order " `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.' " (Sheena K., supra, 40 Cal.4th at p. 890.) The doctrine invalidates a condition of probation " ` "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." ' " (Ibid.) By failing to clearly define the prohibited conduct, a vague condition of probation allows law enforcement and the courts to apply the restriction on an " ` "ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." ' " (Ibid.)
In addition, the overbreadth doctrine requires that conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. (Sheena K., supra, 40 Cal.4th at p. 890; In re Luis F. (2009) 177 Cal.App.4th 176, 189.)
B. Restrictions On Victor's Right To Associate With Individuals Disapproved Of By His Probation Officer Or His Parents
Victor's first challenge is to the condition prohibiting him from associating with "anyone whom a parent or Probation Officers prohibits association." The Attorney General concedes that condition is indeed unconstitutionally vague in that it does not give Victor prior notice of the individuals with whom he is prohibited from associating.*fn4 We agree with that concession.
The condition is very similar to those that have previously been held unconstitutional for lack of a knowledge requirement. In Sheena K., the Supreme Court modified a condition of probation forbidding a juvenile to associate with anyone "disapproved of by probation" after finding it unconstitutionally vague, revising it to specify that the probationer need avoid only those individuals " `known to be disapproved of' by [the] probation officer." (Sheena K., supra, 40 Cal.4th at p. 892.) Likewise, In re Justin S. (2001) 93 Cal.App.4th 811, 816, where the court modified a condition prohibiting a minor's association with "any gang members" to prohibit only association with "persons known to the probationer to be associated with a gang." Most recently, In re H.C. (2009) 175 Cal.App.4th 1067, 1070-1072 (H.C.), held that a condition of probation prohibiting association with any " `known probationer, parolee, or gang member' " must be modified to include personal knowledge requirement, since the word "known" did not specify who must have knowledge of the prohibited associate's status. The condition in this case, too, failed to give Victor notice of which individuals he must avoid.*fn5 (Accord, People v. Leon (2010) 181 Cal.App.4th 943, 949-951 [condition of adult probation prohibiting association with gang members modified to include knowledge requirement].)
In light of the foregoing authorities and the Attorney General's concession, we hold the first-listed condition of probation is unconstitutionally vague and will modify it to include a personal knowledge requirement. In light of ...