In re Ana C.

         San Mateo County Superior Court No. JV83891 Clifford V. Cretan

          Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Huy T. Luong, Deputy Attorney General for Plaintiff and Respondent.

          Streeter, J.

         Ana C. (Minor), a ward of the juvenile court, appeals a dispositional order continuing her wardship, removing her from parental custody, committing her to the San Mateo County Juvenile Rehabilitation Facility, Margaret J. Kemp Camp for Girls (Girls Camp), and imposing various conditions of probation. The sole focus of her appeal is on whether six of these probation conditions are facially unconstitutional for vagueness. We vacate one of the challenged conditions and modify two others, but otherwise affirm.

         I. BACKGROUND

         In August 2014, Minor, then 17 years old, was arrested following a joyriding incident involving a stolen car. According to the probation report, a California Highway Patrol officer spotted the car driving erratically on Highway 101 and initiated a traffic stop, but the car accelerated to a speed exceeding 90 miles per hour and eventually crashed along the side of a freeway off-ramp. Appellant and two friends emerged from the car. The two others, one of whom was Minor’s boyfriend, Eduardo F., fled the scene, but Minor was arrested. Minor falsely reported to the arresting officer that she had been driving. The officer determined that Eduardo F. had been driving, which was confirmed when, following Eduardo F.’s later arrest, he admitted to having been the driver. There was also evidence that, before the crash, Minor had been drinking. Following her arrest, she submitted to a blood test, which showed a blood alcohol level of.01 percent.

         Based on this incident, the district attorney filed a petition under section 602 of the Welfare and Institutions Code^[1] charging Minor with stealing a vehicle (Veh. Code, § 10851, subd. (a)), driving a vehicle with wanton disregard for the safety of others (Pen. Code, § 2800.2), possession of stolen property (Pen. Code, § 496, subd. (a)), selling a vehicle without the vehicle registration number (Veh. Code, § 10751, subd. (a)), displaying a false license plate (Veh. Code, § 4463, subd. (a)(1)), resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), possessing burglary tools (Pen. Code, § 466), giving false information to a peace officer (Veh. Code, § 31), and falsely reporting a crime to a peace officer (Pen. Code, § 148.5, subd. (a)). Minor admitted two misdemeanor counts (resisting arrest, and falsely reporting a crime) and the remaining counts were dismissed.

         In August and September 2014, the juvenile court sustained the section 602 petition, as modified, and declared Minor to be a ward of the court with a maximum confinement time of 14 months, detaining her in the custody of her mother, and imposing various conditions of probation. Among the conditions of probation was a curfew requiring Minor to be home between 10:00 p.m. and 6:00 a.m.; a stay-away order barring Minor from seeing Eduardo F.; a ban on possession or use of alcohol, drugs or tobacco (the Alcohol, Drugs and Smoking Ban); a ban on possession of drug paraphernalia (the Drug Paraphernalia Ban); and a requirement that Minor attend school regularly (the School Attendance Requirement). For the first 30 days of Minor’s wardship, the court placed her under house arrest in her mother’s home, subject to electronic monitoring (the Electronic Monitoring Condition). Minor was directed to “obey all rules and regulations of the Electronic Monitoring Program, ” and, while she was subject to electronic monitoring, the probation department was given discretion to detain her for up to five days in [Juvenile Hall] for any “violation of Court orders or the Electronic Monitoring Agreement.”

         Within three weeks of the declaration of her wardship, according to a probation report, Minor left her mother’s home without permission and cut her electronic monitoring bracelet from her ankle. As a result, she was charged in a second section 602 petition with misdemeanor vandalism, and in a section 777 notice of probation violation she was charged with violating the terms of her probation. On November 5, 2014, Minor admitted the vandalism allegation, and her maximum confinement time was extended to 18 months. Minor was detained in juvenile hall for 27 days, and ordered to participate in family preservation services so that she and her mother could receive counseling assistance designed to facilitate successful at-home completion of her probation. The Electronic Monitoring Condition, which was limited by its terms to a 30-day period, was vacated.

         Upon a referral from the probation department based on a report that Minor left her mother’s home in violation of her curfew, on March 19, 2015 Minor was found to have violated her probation. The court ordered 30 days of detention in juvenile hall and committed Minor to the G.I.R.L.S. Program, an out-of-home placement, ^[2] but stayed the G.I.R.L.S. Program commitment in order to give Minor another chance to demonstrate that she could meet the terms of her probation while detained at home. At the section 777 hearing, in light of the reportedly strained relationship between Minor and her mother, the court ordered mediation in addition to the previously-ordered family preservation services.

         In April 2015, according to a probation report, Minor left her mother’s home in violation of her curfew again, this time for a period of several days. After finding Minor to be in violation of her probation, on June 15, 2015, the juvenile court determined that in-home detention had failed, removed Minor from her mother’s custody, and ordered her into the G.I.R.L.S. Program at Girls Camp (the June 15 Dispositional Order). The June 15 Dispositional Order was structured to anticipate what would occur once Minor completed phase one of the G.I.R.L.S. Program. When released from Girls Camp, Minor was to begin phase two of the G.I.R.L.S. Program and was to return to her mother’s custody, but would remain subject to the conditions of probation that were originally imposed on her in September 2014, with some additions and modifications.

         Several of the added conditions in the June 15 Dispositional Order focused on alcohol and drug use and on Internet activity.^[3] To prevent interference with chemical testing for drug usage, Minor was barred from “consum[ing] any poppy seed products or other substances known to adulterate or interfere with chemical testing” (the Poppy Seed Products Ban). To track Minor’s Internet activities, the court imposed an electronic search condition requiring Minor to surrender, upon demand by her probation officer or a peace officer, all encryption keys or passwords to electronic devices used by her. And to prevent deletion of digital data from any of her electronic devices, the court ordered that “The Minor shall not possess or utilize any program or application, on any electronic data storage device, that automatically or through a remote command deletes data from that device” (the Data Deletion Tools Ban).

         The June 15 Dispositional Order also reinstated the Electronic Monitoring Condition, placing Minor under electronically monitored house arrest for at least 30 days following her release from Girls Camp. Minor’s probation officer was given discretion, as appropriate, to extend the time Minor will be subject to the electronic monitoring, to detain Minor at Girls Camp for violation of electronic monitoring program rules, to lift or impose house arrest, and to adjust Minor’s curfew. The June 2015 Dispositional Order stated: “During the Minor’s time in the Girls Program, the probation officer has the discretion... to place the Minor on and vacate the Electronic Monitoring Program, ... or House Arrest/Supervision, and to impose or adjust a curfew.”

         Minor timely appealed, and now argues that the Alcohol, Drugs and Smoking Ban, the Drug Paraphernalia Ban, the Poppy Seed Products Ban, the Electronic Monitoring Condition, the Data Deletion Tools Ban, and the School Attendance Requirement are unconstitutionally vague.^[4]

         II. DISCUSSION

         A. Applicable Law in Probation Cases Involving Claims of Facial Vagueness

         It is just as true for juveniles as it is for adults that probationers “ ‘ “ ‘do not enjoy “the absolute liberty to which every citizen is entitled.” ’ ” ’ ” (People v. Pirali (2013) 217 Cal.App.4th 1341, 1350 (Pirali).) If anything, “[t]he 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.” ’ [Citation.] 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.’ [Citation.] 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 Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).)

         Whether adults or juveniles, however, probationers “ ‘are not divested of all constitutional rights. “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.]’ ” (Pirali, supra, 217 Cal.App.4th at p. 1350.) “The prohibition on vagueness is rooted in ‘ “ordinary notions of fair play and the settled rules of law, ” and a statute that flouts it “violates the first essential of due process.” ’ [Citation.] This concern for fair warning is aimed at ensuring that a ‘ “person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that he may act accordingly.” ’ [Citations.] The fear is that vague laws will ‘ “trap the innocent.” ’ [Citation.] More broadly, ‘ “ ‘a law that is “void for vagueness”... “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” ’ ” ’ ” (In re Kevin F. (2015) 239 Cal.App.4th 351, 357-358 (Kevin F.).) “Although the [vagueness] doctrine focuses both on actual notice to citizens and arbitrary enforcement, ” the United States Supreme Court has “recognized... that the more important aspect of vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” (Kolender v. Lawson (1983) 461 U.S. 352, 357-358 (Kolender).)

         “A defendant may contend for the first time on appeal that a probation condition is unconstitutionally vague... on its face when the challenge presents a pure question of law that the appellate court can resolve without reference to the sentencing record. [Citations.]” (Kevin F., supra, 239 Cal.App.4th at p. 357; see In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) If the vagueness of a probation condition may be corrected “without reference to the particular sentencing record developed in the trial court” (Sheena K., supra, at p. 887), the condition is subject to de novo review on appeal as a matter of law. (Shaun R., supra, 188 Cal.App.4th at p. 1143.) When Sheena K. review is undertaken, it is important to bear in mind that not all cases of facial vagueness are cases of unconstitutional vagueness, involving language so obscure that it fails to give fair warning of potential violation. Context matters, even in a facial challenge. “In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context, ’ and that, although not admitting of ‘mathematical certainty, ’ the language used must have ‘ “reasonable specificity.” ’ ” (Sheena K., supra, 40 Cal.4th at p. 890.)^[5]

         Thus, the void-for-vagueness doctrine does not apply simply “ ‘ “because there may be difficulty in determining whether some marginal or hypothetical act is covered by [the challenged] language.” ’ ” (People v. Morgan (2007) 42 Cal.4th 593, 606; see also Tapia, supra, 129 Cal.App.4th at p. 1167 [“The fact that a statute contains ‘one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face’ ”]; People v. Lewis (1983) 148 Cal.App.3d 614, 618 (Lewis) [“Vagueness challenges do not turn on the contemplation of marginal cases [citation]... [even where it is] easy to conjure them up....”].) The meaning of a challenged condition will often be plain enough when its language is considered as a whole, together with related conditions, against the backdrop of governing law, or with reference to other aids to practical construction. (See People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez) [“a statute ‘will not be held void for vagueness “if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources” ’ ”].)

         B. The Omission of an Express Scienter Requirement

         With one exception (her challenge to the School Attendance Requirement), Minor bases her appeal on a single argument: Because five of the challenged probation conditions in this case lack an express scienter requirement, she contends we must add one by modification. Relying primarily on Kevin F., supra, 239 Cal.App.4th 351, and People v. Freitas (2009) 179 Cal.App.4th 747 (Freitas), she argues that a knowledge requirement “should not be left to implication.” (People v. Garcia (1993) 19 Cal.App.4th 97, 102; see Sheena K., supra, 40 Cal.4th at p. 890.) In her view, Kevin F. and Freitas correctly apply Sheena K., supra, 40 Cal.4th at p. 890, our Supreme Court’s most recent decision addressing “the need for a scienter clause in probation cases.” Without an express scienter requirement, she argues, she might innocently and inadvertently violate her probation. (See Pirali, supra, 217 Cal.App.4th at p. 1352; People v. Kim (2011) 193 Cal.App.4th 836, 843 (Kim); Victor L., supra, 182 Cal.App.4th at p. 912.) With respect to each of the five conditions she challenges for lack of an express scienter requirement, Minor claims there is no need to resort to the specific facts of her situation. Each condition challenged on this ground “is either constitutional or unconstitutional [on its face] in every juvenile case, ” without reference to the individualized circumstances that drove its imposition.

         By way of response, the Attorney General contends we should follow People v. Gaines (2015) 242 Cal.App.4th 1035 (Gaines), review granted and opinion superseded Feb. 17, 2016, S231723, and imply a scienter requirement.^[6] (See also People v. Appleton (2016) 245 Cal.App.4th 717, 728; People v. Contreras (2015) 237 Cal.App.4th 868, 887; People v. Moore (2012) 211 Cal.App.4th 1179, 1186 (Moore).) Under this line of authority, we are told, so long as the proscribed conduct is described with sufficient clarity-which the Attorney General contends is the case for each of the conditions challenged as lacking an express knowledge requirement-the “willfulness” standard in probation revocation proceedings provides adequate protection against unwitting violation. Reminding us that Sheena K. “recognized a limited class of claims [eligible to be] raised... for the first time on appeal, ” the Attorney General argues that Sheena K. review for facial vagueness is subject to “the overriding principle” that “ ‘discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue’ ” (quoting ...