In re T.M. CA3 ( 2013 )

Filed 9/26/13 In re T.M. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
In re T.M., a Person Coming Under the Juvenile Court
Law.
THE PEOPLE, C071746
Plaintiff and Respondent, (Super. Ct. No. JD-12-94)
v.
T.M.,
Defendant and Appellant.
Appellant T.M., a minor, pleaded no contest to committing a misdemeanor curfew
violation and violating park curfew, an infraction. The juvenile court adjudged him a
ward of the court and placed him on probation with various terms and conditions.
On appeal, the minor challenges the imposition of certain gang-related conditions
of probation, and contends the court erred in imposing a restitution fine in excess of the
$100 statutory maximum (Welf. & Inst. Code, § 730.6, subd. (b)(2)). We reduce the
restitution fine to $100, add to the gang-related conditions a reference to the definition of
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criminal street gang contained in Penal Code section 186.22, subdivision (f) and
otherwise affirm the order of the juvenile court.
BACKGROUND
Officers investigating the report of a gang fight in Woodland saw the minor
standing on the street corner. An officer spoke with the minor and asked (among others)
whether he had any weapons. The minor responded that he had a taser. In his pockets,
officers found the taser, a cigar, and a lighter.
A petition was filed in case JD-12-94, alleging that the minor is a person within
the provisions of Welfare and Institutions Code section 602 because he possessed a stun
gun (a misdemeanor), violated city curfew (a misdemeanor), violated park curfew (an
infraction), and possessed tobacco products (an infraction).
While that petition was pending, a second petition was filed in case JD-12-160,
alleging that the minor committed second degree burglary and received stolen property.
The minor pleaded no contest to violating city curfew (a misdemeanor), and
violating park curfew (an infraction), in exchange for dismissal of the other allegations in
case JD-12-94, and all allegations of JD-12-160. He was remanded to the custody of his
father and placed on probation. Among the conditions of probation, the court directed the
minor to “[s]tay away from anyone you know or Probation tells [you] is a gang member.
Do not possess or have under your control any gang colors or gang paraphernalia. Do not
use gang signs.” The court also imposed a restitution fine of $130, of which $110 goes to
the “state restitution fund” and $20 represents a “collection fee.”
DISCUSSION
I
The Probation Conditions are Neither Invalid nor Unconstitutional
Over the minor’s objections, the trial court imposed the gang-related conditions of
probation quoted above. On appeal, the minor contends these conditions (1) are invalid
because they are not justified by the circumstances of his crimes or his social history, and
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(2) are unconstitutionally vague because they do not define the term “gang” and do not
contain a knowledge requirement.
The minor is trifling with the court on both assertions. Why? Because the court
directed the minor to “[s]tay away from anyone you know or Probation tells [you] is a
gang member. Do not possess or have under your control any gang colors or gang
paraphernalia. Do not use gang signs.” What does all that mean? First, the court means
for the minor to stay away from the bad people as advised by his probation officer or
those with whom he was associating (1) when he was arrested in this case for being out
after midnight, armed with a weapon, and where a gang fight had been reported, (2) when
he was earlier arrested for participating in criminal street gang-related activity, and (3)
when he was earlier doing things that led to juvenile court findings and to the imposition
of gang conditions of probation in two different cases. Second, the court prohibitions not
to possess or control gang colors or gang paraphernalia or to use gang signs are
unmistakable.
In any event, the Legislature has given trial courts broad discretion to devise
appropriate conditions of probation, so long as they are intended to promote the
“reformation and rehabilitation” of the probationer. (Pen. Code, § 1203.1, subd. (j); In re
Luis F. (2009) 177 Cal.App.4th 176, 188.) Welfare and Institutions Code section 730,
subdivision (b) provides that when a minor is adjudged a ward of the court and “is placed
under the supervision of the probation officer . . . , the court may make any and all
reasonable orders for the conduct of the ward . . . . The court may impose and require
any and all reasonable 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.” This
section grants courts broad discretion in establishing conditions of probation in juvenile
cases, even broader than that of a criminal court, 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.” (See In re Antonio R. (2000) 78
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Cal.App.4th 937, 941; In re Christopher M. (2005) 127 Cal.App.4th 684, 692,
disapproved on another matter in People v. Gonzales (2013) 56 Cal.App.4th 353, 375, fn.
6.) Generally, we review the court’s imposition of a probation condition for an abuse of
discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; accord, In re Christopher
M., supra, 127 Cal.App.4th at p. 692.) However, we review constitutional challenges to a
probation condition de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)
A condition of probation is not invalid unless it (1) has no relationship to the crime
of which the offender was convicted, (2) relates to conduct which is not in itself criminal,
and (3) requires or forbids conduct which is not reasonably related to future criminality.
All three factors must be present to invalidate a condition of probation. (In re R.V.
(2009) 171 Cal.App.4th 239, 246.) Applying these criteria, we disagree with the minor
that the gang-related conditions were invalid and therefore improperly imposed. The
minor violated a city curfew ordinance and park curfew because he was out after
midnight, and at the scene when officers responded to reports of a gang fight. Not only
was he present where a gang fight had been reported, but the minor also had a weapon in
his pocket. Although he denied to the probation officer associating with gang members,
he had been arrested in 2008 for participating in criminal street gang-related activity, and
in two previous cases the juvenile court had ordered gang conditions of probation. Under
such circumstances, the court does not need additional evidence the minor is yet a gang
member in order to impose conditions of probation requiring a minor to steer clear of
gang associations and paraphernalia. “Where a court entertains genuine concerns that the
minor is in danger of falling under the influence of a street gang, an order directing a
minor to refrain from gang association is a reasonable preventive measure in avoiding
future criminality and setting the minor on a productive course.” (In re Laylah K. (1991)
229 Cal.App.3d 1496, 1502.) Here, in view of the minor’s present and past situation, the
juvenile acted within its discretion in ordering the gang conditions as a reasonable
preventative measure to help the minor avoid future criminality.
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We disagree that the gang conditions of the minor’s probation are
unconstitutionally vague. 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. (See In re E.O. (2010) 188
Cal.App.4th 1149, 1153.) The underpinning of a vagueness challenge is the due process
concept of “fair warning” and the “rule of fair warning consists of ‘the due process
concepts of preventing arbitrary law enforcement and providing adequate notice to
potential offenders’ [citation], protections that are ‘embodied in the due process clauses
of the federal and California Constitutions.’ ” (In re Sheena K. (2007) 40 Cal.4th 875,
890.) A restriction failing this test does not give adequate notice—i.e., “fair warning”—
of the conduct proscribed. (Ibid.)
Noting that other cases have held the word “ ‘gang’ ” to have both “ ‘sinister’ ”
and “ ‘considerable benign connotations,’ ” the minor contends a gang-related condition
of probation must include a definition of the word “gang” to overcome a constitutional
challenge. Indeed, the U.S. Supreme Court in Lanzetta v. New Jersey (1939) 306 U.S.
451, 453-455 [83 L.Ed. 888, 890-891] long ago invalidated a New Jersey anti-gang
statute in part because the word “gang” had various definitions in dictionaries and in
historical and sociological writings, but no definition in statutory or case law, and other
courts have continued to follow this analysis. (E.g., People v. Lopez (1998) 66
Cal.App.4th 615, 631 [noting that dictionary definition of “gang” includes a “ ‘group of
persons working under the same direction or at the same task’ ”]; see also People v. Leon
(2010) 181 Cal.App.4th 943, 948-950 [modifying order proscription on associating with
‘ “gang members’ ” to “ ‘member[s] of a criminal street gang’ ”].) In our view, it is
instead “obvious that the juvenile court intended only to ban [the minor] from places
involving activity by ‘sinister’ gangs” and he “need not worry about attending a Rotary
Club meeting or an Eagle Scout campout,” and, accordingly, we “need not tarry over this
argument.” (Cf. In re Victor L. (2010) 182 Cal.App.4th 902, 914.) In short, it is not
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ambiguous: the word “gang” in the conditions of probation means “criminal street gang”
and the conditions using the word “gang” both give the minor sufficient notice of the
precluded activities and are sufficiently precise for the court to determine whether the
condition has been violated. We nonetheless add to the conditions a reference to the
definition of “criminal street gang” contained in Penal Code section 186.22, subdivision
(f).
We also reject the minor’s claim that the gang-related probation conditions are
unconstitutionally vague because they lack a knowledge requirement. The minor
concedes that just two years ago in People v. Patel (2011) 196 Cal.App.4th 956, 960, this
court announced “our intent to henceforth no longer entertain this issue on appeal.” We
held that, hereafter we would “construe every probation condition proscribing a
probationer’s presence, possession, association, or similar action to require the action be
undertaken knowingly. It [is] no longer . . . necessary to seek a modification of a
probation order that fails to expressly include such a scienter requirement.” (Id. at pp.
960-961, fn. omitted.) Because the minor indicates he raises this issue on appeal only to
preserve the issue for future federal review, we do not consider this issue further. The
probation conditions at issue here fall squarely within the “presence, possession,
association, or similar action” described by the court in Patel whereby the court construes
the “probation condition . . . to require the action be undertaken knowingly.” (People v.
Patel, supra, 196 Cal.App.4th at pp. 960-961.)
II
The Faulty Restitution Fine
The minor contends the juvenile court abused its discretion in imposing a $130
restitution fine under Welfare and Institutions Code section 730.6. The People agree, and
ask that we reduce the fine to the statutory maximum.
We agree the court abused its discretion and the restitution fine must be reduced to
$100. (See People v. McGhee (1988) 197 Cal.App.3d 710, 716.) Welfare and
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Institutions Code, section 730.6, subdivision (b)(2) provides that a restitution fine of no
more than $100 may be imposed on a minor found to have committed one or more
misdemeanor offenses. Subdivision (q) of that section allows the county to impose an
additional fee for the collection of the restitution fine, not to exceed 10 percent of the
fine.
DISPOSITION
Paragraph 12 of the court’s findings and orders, is modified to require the minor to
pay a restitution fine in the amount of $100, plus a $10 collection fee. Paragraph 39 is
modified to read “Stay away from anyone you know or Probation tells you is a gang
member [meaning ‘criminal street gang’ as defined in Penal Code section 186.22, subd.
(f)]. Do not possess or have under your control any gang colors or gang paraphernalia.
Do not use gang signs.” In all other respects, the order of the juvenile court is affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
ROBIE , J.
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