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In re E.O.

September 29, 2010


(Santa Clara County Super. Ct. No. J33351), The Honorable Patrick E. Tondreau.

The opinion of the court was delivered by: Rushing, P.J.


The trial court placed E.O., a minor, on probation after finding that he came within the jurisdiction of the juvenile court because he possessed a knife on school grounds. On appeal he contends that a condition of probation restricting his freedom to approach or enter courthouses is unconstitutionally overbroad. We agree and will reverse the dispositional order to that extent.


Appellant was first found to be a ward of the juvenile court on March 24, 2008, when the court sustained the allegations of a petition charging that he had engaged in felony vandalism, in that he and a companion painted gang-related graffiti on school property. On January 25, 2010, a second petition was filed alleging that appellant had possessed a knife with a blade longer than 2.5 inches on school grounds in violation of Penal Code section 626.10, subdivision (a).

At the hearing on the petition, the principal at appellant's high school testified that he detained appellant and three schoolmates who were walking around the school grounds while classes were in session. After confirming that they were supposed to be in class, he told them he was going to search them. Appellant moved away and, shielding his hands from view, appeared to remove something from his pockets. The principal heard something hit the floor, and found at that location a plastic garbage bag containing a folding knife with a blade about 3.5 inches long. Testifying on his own behalf, appellant denied that he dropped or possessed the knife, stating that when told to turn out his pockets he did so, and that they contained nothing but a pencil.

Manifestly crediting the principal's account, the trial court sustained the petition and placed appellant on probation. It adopted a number of probation conditions recommended by the probation department, including one directing "[t]hat said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves [sic] anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer."

Appellant filed this timely appeal.


" 'In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety....' " (People v. Perez (2009) 176 Cal.App.4th 380, 383 (Perez).) This discretion is broader in juvenile than in adult criminal cases. (In re Sheena K. (2007) 40 Cal.4th 875, 889-890 (Sheena K.); In re Francisco S. (2000) 85 Cal.App.4th 946, 953-954; In re Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).) However, "the juvenile court's discretion is not boundless." (Victor L., supra, at p. 910; see In re R.P. (2009) 176 Cal.App.4th 562, 566["a probation condition must not violate a probationer's inalienable rights"]; In re Tyrell J. (1994) 8 Cal.4th 68, 82 [" 'Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile....' "], citations omitted, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128,139; In re Josh W. (1997) 55 Cal.App.4th 1, 5 [to same effect]; Perez, supra, 176 Cal.App.4th at p. 383.)

A probation condition, whether in an adult or juvenile case, may be challenged as unconstitutionally vague or overbroad. (See Sheena K., supra, 40 Cal.4th at p. 887.) Although the two objections are often mentioned in the same breath, they are conceptually quite distinct. A restriction is unconstitutionally vague if it is not " '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, quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) A restriction failing this test does not give adequate notice--"fair warning"--of the conduct proscribed. (Sheena K., supra, 40 Cal.4th at p. 890; see In re H.C. (2009) 175 Cal.App.4th 1067, 1070.) A restriction is unconstitutionally overbroad, on the other hand, if it (1) "impinge[s] on constitutional rights," and (2) is not "tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." (Victor L., supra, 182 Cal.App.4th at p. 910; see Sheena K. at p. 890; People v. Harrisson (2005) 134 Cal.App.4th 637, 641-642.) The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights--bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.

Appellant's challenge is primarily one of overbreadth, not vagueness. He contends that the restriction on court attendance unnecessarily infringes on several constitutional rights.*fn1 The foremost of these is a First Amendment right to attend court proceedings.*fn2 Much of his argument on this point relies on principles governing the closure of trials to the public, as most recently addressed in Presley v. Georgia (2010) 558 U.S. ___ [130 S.Ct. 721; 175 L.Ed.2d 675]. That case, however, has no apparent pertinence here except as a general affirmation that there exists a First Amendment right, of largely undefined scope, to attend court proceedings. (Id. at p. ___ [130 S.Ct. at p. 723]; see Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. (1984) 464 U.S. 501.) That right was not at issue in that case. The court explicitly acknowledged as much by observing that the appeal necessarily rested on the defendant's right to a public trial under the Sixth Amendment, since it was he and not a member of the public (or press) "who invoked his right to a public trial." (Presley v. Georgia, supra,558 U.S. at p. ___ [130 S.Ct. at p. 723]; see id. at p. ___ [130 S.Ct. at p. 722] [defendant petitioned for certiorari "claiming his Sixth and Fourteenth Amendment right to a public trial was violated"].) The court expressly declined to expound upon "[t]he extent to which the First and Sixth Amendment public trial rights are coextensive." (Id. at p. ___ [130 S.Ct. at p. 724].) We fail to detect any logical connection between the holding in that case and any issue now before us.

Defendant gains considerably more traction with Perez, supra, 176 Cal.App.4th 380, where the court considered a probation condition directing the defendant not to "attend[] any Court hearing or [be] 'within 500 feet of any Court in which [he] is neither a defendant nor under subpoena.' " (Id. at p. 382.) The court held the condition overbroad in that (1) insofar as it might relate to avoiding recurrences of the defendant's past gang involvement, it added nothing to other, unchallenged conditions having that effect; (2) insofar as it was aimed at "protect[ing] witnesses, parties to court proceedings, and court personnel," it was "not limited to protecting specific witnesses or parties, nor is it confined to trials involving gang members," and thus it restricted the defendant "from engaging in activities that are unrelated to future criminality." (Id. at p. 384.)

The court also found distinct infirmities in "the 500-foot court access restriction." (Perez, supra, 176 Cal.App.4th at p.384.) The prosecution did not claim that the defendant "had threatened or would threaten witnesses, or that his presence in a courthouse would incite violence." (Ibid.) Nor did the state offer any showing "why a narrower condition restricting attendance at trials of gang members and prohibiting contact with witnesses would not suffice." (Ibid.) The court observed that "broad and unnecessary exclusions from either government centers that invite public participation or public places that contain parks and other public forums touch upon other constitutionally protected interests," and that "[u]nreasonable restrictions 'on access to public property' contravene the First Amendment." (Id. at p. 685.) It cited examples of cases where courts "struck conditions that are so broad they prevent lawful conduct in public places." (Id. at pp. 384-385.) Emphasizing the right of access to the courts themselves, the court noted that the condition before it could prevent the defendant from "filing or appearing in a civil action or voluntarily testifying in a case in which he has not been subpoenaed." (Id. at p. 385.) It noted that even where ...

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