California Court of Appeals, First District, Fourth Division
In re ANA C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
v.
ANA C., Defendant and Appellant.
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 ...