In re Anthony J.
Filed 6/19/13 In re Anthony J. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re ANTHONY J., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY J.,
Defendant and Appellant.
D062378
(Super. Ct.
No. J229516)
APPEAL from
an order of the Superior Court
of
County, Carlos O. Armour, Judge. Affirmed as modified.
Laurel M.
Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lilia
E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
The San
Diego County District Attorney's Office filed a juvenile petition under Welfare
and Institutions Code
name="_ftnref1" title="">[1]
section 602 alleging Anthony J. committed three lewd and lascivious acts upon a
child under the age of 14 (Pen. Code, §288, subd. (a); counts 1, 2, & 3),
and unlawfully engaged in misdemeanor sexual intercourse with her (Pen. Code,
§§ 17, subd. (b)(4); 261.5, subd. (a); count 4). Anthony admitted the allegation that he
committed misdemeanor sexual intercourse.
The remaining allegations were dismissed.
At the
declared Anthony a ward of the court and ordered that he be placed on probation
subject to a variety of conditions, including the conditions Anthony challenges
in this appeal. These conditions
prohibit him from: (1) having "direct or indirect contact with the
victim(s), Kohl's Department Stores or their employees, Gerardo Camacho, or
Sandra Branch; witness(es); or co-offenders(s), Marlon Crawford, Michael
Bizzle, Victor Stoltey, or Isaac Godfrey, in this matter or any other of their
family members" (Condition 40)
name="_ftnref2" title="">[2];
(2) associating "with children whom the minor knows or reasonably should
know are under the age of 13, and shall not frequent places where children whom
the minor knows or reasonably should know are under the age of 13 congregate,
unless in the company of a responsible adult over the age of 21 who is aware of
the allegations filed against the minor and aware that the minor is on
probation" (Condition 41); (3) being "on any school grounds unless an
enrolled student and it is during regular school hours, unless authorized by
the Probation Officer" (Condition 42); (4) being "in any privately
owned vehicle with more than one person under the age of 18 unless accompanied
by a parent or legal guardian, or with permission of the Probation
Officer" (Condition 43); (5) appearing "in Court or at any courthouse
unless [Anthony is] a party or a witness in the proceedings, or with permission
of the Probation Officer" (Condition 44); (6) using, possessing,
transporting, selling or having "in or under [Anthony's] control any
firearm, replica, ammunition or other weapon, including a knife, any explosive
or any item intended for use as a weapon, including hunting rifles or
shotguns" (Condition 46); (7) using "force, threats, or violence on
another person" (Condition 54); (8) "participating in chat rooms,
using instant messaging such as ICQ, MySpace, Facebook, or other similar
communication programs" (Condition 56); (9) possessing "any
pornographic material including computer files and disks" or
"frequent[ing] web sites or bookstores or any other place the minor knows
or reasonably should know contains pornographic material" (Condition 57);
(10) accessing "any adult sexually explicit web site" (Condition 58);
(11) using "a computer unless supervised by a responsible adult over the
age of 21 who is aware that the minor is on probation and is aware of the
minor's charges" (Condition 59); and (12) using "a computer for any
purpose other than school related assignments" (Condition 60).
Anthony
raises a host of constitutional challenges to these 12 probation
conditions. Although we conclude none of
the conditions should be stricken, we modify nine of them. With these modifications, we affirm the
juvenile court's order.
FACTUAL
AND PROCEDURAL HISTORY
On June 8, 2011, Anthony and his companions
entered a Kohl's department store and stole a total of $401.24 worth of
merchandise. They fled from the store
with the stolen goods and left in a vehicle.
The store employees provided the police with the vehicle's license plate
and a description of the suspects. The
vehicle was located and the property was recovered and returned to the
store. Two of Anthony's adult companions
were on parole and were documented as gang members or gang associates.
The next
month, Anthony and a companion approached a male victim and asked where he was
from and why he was in the Logan
area of San Diego. After Anthony and his companion put gloves
on, Anthony punched the victim causing the victim to lose his balance and fall
back. The victim stated that both Anthony
and his friend hit and kicked him multiple times. During the altercation, Anthony and his
companion took the victim's I-Pod and yelled "West Coast" as they
rode away on their scooters. Anthony and
his companion were later caught and the I-Pod was recovered. Anthony's companion was a documented
associate of the West Coast Crips criminal street gang.
On July 6, 2011, then 13-year-old Sharon
B. told an investigating officer that about the last week of June 2011, she and
Anthony became sexually active with one another. She reported that she and Anthony had
consensual, unprotected sex two or three times.
Anthony was interviewed and admitted to the investigating officer that
he had been sexually active with Sharon since June 2011 and had consensual sex
with Sharon two or three times. Anthony
had been living with Sharon's
family for a month or two when he started having sex with Sharon.
and Appeal
While
appearing in front of the juvenile court, Anthony did not object to any of the
conditions that he now challenges.
However, he timely appealed and argues 12 of the conditions are
unconstitutional.
DISCUSSION
I
CONSTITUTIONALITY OF THE CHALLENGED CONDITIONS OF PROBATION
A. General Legal Principles and Standard of
Review
"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.) When a juvenile court adjudges a minor a ward
of the court under section 602 and places the ward under the supervision of a
probation officer, "[t]he court may impose and require 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." (§ 730, subd.
(b).)
"The
juvenile court has wide discretion to select appropriate [probation] conditions
. . . ." (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K).) The permissible
scope of the juvenile court's discretion in formulating the terms of a minor's
probation is greater than that allowed for adult probationers "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.'
" (In re Victor L. (2010) 182 Cal.App.4th 902, 910 (
78 Cal.App.4th at p. 941.) Thus, a
probation condition that would be unconstitutional or otherwise improper for an
adult probationer may be permissible for a minor under the supervision of the
juvenile court. (Sheena K., supra, at p.
889.)
Generally,
a probation condition will be upheld 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. . . .' " (People
v. Lent (1975) 15 Cal.3d 481, 486.)
Further,
the juvenile court must not order conditions that are unconstitutionally vague
or overbroad. (Sheena K., supra, 40
Cal.4th at p. 890.) Although challenges
to the constitutionality of probation conditions on the grounds of vagueness
and overbreadth are frequently made together, the concepts are distinct.
"[T]he
underpinning of a vagueness challenge is the
" (Sheena K., supra, 40 Cal.
4th at p. 890; see U.S. Const., Amends. 5, 14; Cal.
Const., art. I, § 7.) A probation
condition 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.' " (Sheena
K., supra, at p. 890.) "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." ' "
(Ibid., italics omitted,
quoting People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090, 1116-1117.)
In
contrast, a probation condition is unconstitutionally overbroad if it imposes
limitations on the probationer's constitutional
rights and it is not closely or narrowly tailored and reasonably related to
the compelling state interest in reformation and rehabilitation. (Sheena
K., supra, 40 Cal. 4th at p. 890;
Victor L., supra, 182 Cal.App.4th at p. 910.)
"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."
(In re E.O. (2010) 188
Cal.App.4th 1149, 1153.)
In an
appropriate case, a probation condition that is not " 'sufficiently
narrowly drawn' " may be modified and affirmed as modified. (People
v. Lopez (1998) 66 Cal.App.4th 615, 629; see also In re E.O., supra, 188
Cal.App.4th at p. 1158.)
Generally,
"[t]he juvenile court's exercise of discretion in establishing conditions
of probation in juvenile cases 'will not be disturbed in the absence of
manifest abuse.' " (
Cal.App.4th 684, 692; In re Josh W.
(1997) 55 Cal.App.4th 1, 5.) However, a
facial challenge to a condition of probation on the ground of unconstitutional
vagueness or overbreadth that is capable of correction without reference to the
particular sentencing record developed in the trial court presents a pure
question of law, and we review such challenges de novo. (Sheena
K., supra, 40 Cal.4th at p. 887;
1129, 1143.)
B. Forfeiture
Anthony did
not object below to the conditions he now challenges. In Sheena
K., supra, 40 Cal.4th 875, the
Supreme Court held that the minor did not forfeit her challenge to a probation
condition on grounds of vagueness and overbreadth by failing to raise the issue
in the juvenile court. (
of law, easily remediable on appeal by modification of the
condition." (Id. at p. 888.) However, the
Supreme Court cautioned that its conclusion "[did] not apply in every case
in which a probation condition is challenged on a constitutional ground . . .
. [W]e do not conclude that 'all
constitutional defects in conditions of probation may be raised for the first
time on appeal, since there may be circumstances that do not present "pure
questions of law that can be resolved without reference to the particular
sentencing record developed in the trial court." [Citation.]' " (Id.
at p. 889.) Thus, even though he failed
to object in juvenile court, Anthony did not forfeit any constitutional
challenge that presents a pure question of law.
However,
Anthony forfeited any claim that a challenged condition is unreasonable by
failing to raise the objection with the juvenile court. (People
v. Welch (1993) 5 Cal.4th 228, 234-237 (Welch).) Also, as we explain
below, Anthony forfeited some of his challenges to the extent his arguments
require us to review the disposition record and the materials considered by the
juvenile court. (See
That said, even where Anthony's challenges were forfeited, we evaluate
any claim that a condition was unconstitutionally vague and/or overly broad
based on the condition itself without reference to any additional facts.
C. Analysis
1. Condition 40
Condition
40 prohibits Anthony from having "direct or indirect contact with the
victim(s), Kohl's Department Stores or their employees, Gerardo Camacho, or
Sandra Branch; witness(es); or co-offenders(s), Marlon Crawford, Michael
Bizzle, Victor Stoltey, or Isaac Godfrey, in this matter or any other of their
family members." Anthony contends
the condition is too vague because it does not provide him with sufficient
notice regarding whom he cannot contact and the dictate that he avoid indirect
contact with victims is unclear. In
addition, Anthony argues the condition is overly broad because it
unconstitutionally prohibits his right to associate with others and to travel.
The People
concede, and we agree, that the condition is vague to a limited extent. Anthony must have knowledge of the persons
whom he is prohibited from contacting.
(See Sheena K.,
to provide that Anthony is prohibited from contacting individuals whom he knows
to be "witness(es)," "Kohl's employees," or co-offenders'
family members. (Id. at p. 892 [an acceptable remedy when such a condition is
challenged on appeal is for the appellate court to insert the qualification
that defendant have knowledge].)
However, we
reject Anthony's remaining contentions regarding Condition 40. Anthony's assertion that the phrase
prohibiting him from making "indirect" contact with victims is vague
lacks merit. A plain reading of
Condition 40 indicates that Anthony may not have any contact with the victims,
including but not limited to, personal contact, telephone conversations, email
or other electronic contact, and contact through third parties. Condition 40 clearly indicates that Anthony
is to have no contact whatsoever with any of the listed individuals without
exception. The phrase
"indirect" does not render this condition unconstitutionally vague.
In
addition, we are not persuaded by Anthony's argument that Condition 40 is
overly broad because it prohibits his right to associate with others and to
travel. Condition 40's effect of
limiting Anthony from associating with a limited number of identified
individuals is not unconstitutional but is reasonably related to his rehabilitation
and prevention of future criminality because Anthony stole items from a Kohl's
department store and associates with criminal
street gang members. (Cf.
1013, 1018 [upholding a probation condition prohibiting the juvenile from
associating with any individuals "disapproved of by his probation
officer" after juvenile and two accomplices stole a video game player and
shoes from an acquaintance's house]; In
re Frank V. (1991) 233 Cal.App.3d 1232, 1243 [approving a probation
condition prohibiting the juvenile from associating with anyone disapproved of
by his probation officer after the juvenile purchased gun from an unknown
"person on the streets"].)
Anthony,
however, argues that the prevalence of Kohl's stores around his home
unconstitutionally limits his right to travel.
This argument requires us to refer to the record and consider more than
just the facial constitutionality of this condition. Specifically, we would have to consider the
location of various Kohl's department stores in connection with Anthony's
current residence and his usual destinations.
Thus, Anthony's contention does not raise a pure question of law and is
forfeited. (Sheena K., supra, 40
Cal.4th at p. 889.) Even if we were
going to address this argument on the merits, we would conclude it does not
impermissibly infringe on Anthony's constitutional rights. Condition 40 merely prohibits Anthony from
entering a Kohl's department store. This
condition was placed on Anthony because he stole items from a Kohl's department
store. His right to travel is not
otherwise limited by this condition.
2. Condition 41
Condition
41 prohibits Anthony from associating "with children with whom the minor
knows or reasonably should know are under the age of 13," and
"frequent[ing] places where children whom [he] knows or reasonably should
know are under the age of 13 congregate, unless in the company of a responsible
adult over the age of 21 who is aware of the allegations filed against [Anthony]
and aware that [he] is on probation."
Anthony asserts this condition is unconstitutional because it infringes
on his "basic fundamental rights of association and travel" and is
overbroad.
Anthony's
latest offense stemmed from his sexual relationship with a 13 year old. A psychologist evaluated Anthony and was
troubled by Anthony's lack of candor.
Because of the psychologist's inability to evaluate the risk Anthony
posed to children under the age of 13, the psychologist recommended that
Anthony be permitted to interact with children only when supervised by an adult
who knows of Anthony's potential problems.
Anthony does not address his evasiveness with the psychologist, but
instead, stresses that he was only a few years older than the girl with whom he
had consensual sex. Based on the age
difference and the consensual nature of the encounters, Anthony argues there is
no justification for his interaction with children under the age of 13 to be
restricted. We are not persuaded. Anthony had sex multiple times with a 13 year
old and was not forthcoming regarding his reasons for doing so or his sexual
history. We appreciate the juvenile
court's concern, based on the psychologist's evaluation and recommendation,
that Anthony should not be permitted to associate with children under the age
of 13 without supervision.
Also, we
determine that Condition 41 is not overbroad.
While it prohibits Anthony from associating with children under the age
of 13 or visiting areas he knows or should know such children congregate, he is
permitted to engage in these prohibited activities if accompanied by an
adult. In short, we see no reason to
strike this condition.
name="_ftnref6" title="">[6]
3. Condition 42
Condition
42 restricts Anthony from being "on any school grounds unless an enrolled student
and during regular school hours, unless so authorized by the Probation
Officer." Anthony contends this
condition unconstitutionally restricts his right to associate with other
students by preventing him from engaging in activities like sports events and
club meetings, which would contribute to his rehabilitation. The People argue a similar provision was
determined to be constitutional in light of Penal Code sections 627.2
and 627.8,
which preclude nonenrolled students and outsiders from being on school grounds
subject to certain conditions. (
(D.G.).)
In
prohibiting the minor from coming within 150 feet of any school campus other
than the school he was attending was unreasonable. (Id.
at p. 50.) The court, however, modified
the condition to comply with Penal Code sections 627.2 and 627.8 and approved
of the modified condition. (
the modified condition in D.G. It is not.
The
probation condition in D.G.,
of any school unless enrolled, accompanied by a parent or guardian or
responsible adult, or authorized by the permission of school
authorities." (Id. at p. 57.) In contrast,
Condition 42 only allows Anthony on school grounds if he is enrolled as a
student and it is during regular school hours.
Therefore, he is only permitted to be at his own school during a
specific time. The condition at issue in
D.G., supra, 187 Cal.App.4th 47, allowed the minor to be on his school
grounds with no time restrictions. In
this regard, Condition 42 is more restrictive than the modified condition
approved in D.G.
The subject
condition in D.G.,
the minor to be on school grounds where he was not an enrolled student if
accompanied by a parent, guardian, or responsible adult or with permission of
school authorities. Here, Condition 42 permits
Anthony to go on any school grounds only with the permission of his probation
officer. Thus, under Condition 42,
Anthony is not permitted on school grounds, if not enrolled as a student there,
even if he is accompanied by an adult or with permission of the appropriate
school official as permitted under Penal Code section 627.2. As such, Condition 42 is again more
restrictive than the modified condition approved by the court in
In
addition, we are not satisfied that Condition 42 is "generally
consistent" with Penal Code sections 627.2 and 627.8. It does not allow Anthony to be on school
grounds with permission of the principal or the principal's designee, but only
Anthony's probation officer.
The People
contend Condition 42 is acceptable because Anthony often associates with street
gang members and sometimes carries a knife.
To some extent, we agree and are mindful of the concern of the juvenile
court and the People that Anthony's access to students should be restricted to
the extent permissible. However, we
agree with Anthony that Condition 42 is overbroad and could be more narrowly
tailored and effectively serve the same rehabilitative goals as in its current
form. (See In re E.O., supra, 188
Cal.App.4th at p. 1153.) We therefore
modify Condition 42 to more closely track the approved language in
4. Condition 43
Condition
43 restricts Anthony from being "in any privately owned vehicle with more
than one person under the age of 18 unless accompanied by a parent or legal
guardian, or with permission of the Probation Officer." Anthony contends, and the People concede,
this condition is unduly vague because it does not require that he
"know" the ages of the passengers in the private vehicle. We agree.
To
constitute a violation of probation, conduct must be knowing or willful. (See People
v. Patel (2011) 196 Cal.App.4th 956, 960.)
We thus modify Condition 43 to include a knowledge requirement.
5. Condition 44
At the
outset, we note there is some confusion regarding what Condition 44 actually
entails. Anthony claims it prohibits him
from appearing in court or any courthouse unless he is a party in the
proceedings. The People contend the
condition is not so restrictive and only prohibits Anthony from being in court
or any courthouse unless he is a party or a witness in the proceedings, or with
permission of the probation officer. The
People are correct. The September 23,
2011 minute order clearly describes this condition the same way the People do.
The People
note that a similar probation term was addressed in People v. Leon (2010) 181 Cal.App.4th 943. The challenged term in that case stated,
"You shall not appear at any court proceeding unless you're a party, you're
a defendant in a criminal action, subpoenaed as a witness, or with permission
of probation." (
attend court proceedings, the court in Leon
modified the term to read: "You
shall not be present at any court proceeding where you know or the probation
officer informs you that a member of a criminal street gang is present or that
the proceeding concerns a member of a criminal street gang unless you are a
party, you are a defendant in a criminal action, you are subpoenaed as a
witness, or you have the prior permission of your probation officer." (Id.
at p. 954.)
Both
Anthony and the People agree that Condition 44 should be modified to read like
the condition in People v. Leon,
accordingly.
6. Condition 46
Condition
46 prohibits Anthony from using, possessing, transporting, selling or having
"in or under [his] control any firearm, replica, ammunition or other
weapon, including a knife, any explosive or any item intended for use as a
weapon, including hunting rifles or shotguns." Anthony asserts this condition is
unconstitutionally vague because it lacks a "knowing" element and the
phrase "item intended for use as a weapon" is uncertain.
Although
they at first argue the condition is constitutional as written, the People
seemingly concede that a scienter requirement is necessary. We agree and modify the condition
accordingly.
The People
did not respond to Anthony's second point that the phrase "item intended
for use as a weapon" is uncertain.
We are not persuaded by Anthony's argument that this phrase is
uncertain, but in any event, the addition of the knowledge requirement
sufficiently addresses Anthony's concern that the condition is vague.
7. Condition 54
Condition
54 prohibits Anthony from using "force, threats, or violence on another
person." Anthony argues this
condition is overly broad because it prevents Anthony from defending himself
and others. Anthony also points out that
the record indicates that he lives in conditions "many consider
unsafe" and as such, he must be permitted to protect himself. To the extent that Anthony's contention
requires us to review the record, he has forfeited the argument. (See Sheena
K., supra, 40 Cal.4th at p.
889.) Nevertheless, we are mindful that
the California Constitution protects and state law permits self-defense or the
lawful defense of others. (See Cal. Const.,
art I, § 1; Pen. Code, § 693.) To
assure that Condition 54 does not violate Anthony's constitutional rights in
this regard, we will insert the word "unlawful" prior to the
prohibited acts listed in Condition 54 as the People suggest.
8. Internet Conditions (Conditions 56, 59, &
60)
Anthony
challenges three conditions (56, 59, & 60) placing restrictions on his
computer and Internet use on the grounds they are overbroad, restrict his
and, at least one condition (59), impedes his normal school related academic
activities.
title="">[9] Condition 56 prohibits Anthony from
"participating in chat rooms, using instant messaging such as ICQ, MySpace
[and] Facebook." Condition 59
prohibits Anthony from using "a computer unless supervised by a
responsible adult over the age of 21 who is aware the minor is on probation and
of his charges." Condition 60
prohibits Anthony from using "a computer for any purpose other than school
related assignments" and also requires that he "be supervised when
using a computer in the common area of [his] residence or in a school
setting."
At the
outset, Anthony concedes that computer or Internet related offenses can give
rise to appropriate probation conditions restricting the offender's use of the
Internet. (See Victor L., supra, 182
Cal.App.4th at p. 923.) Anthony,
nevertheless, points out that the record "is devoid of any computer or
internet-related offenses," and therefore, the various Internet
restrictions are unconstitutionally overbroad.
However, Anthony failed to object to any of these conditions at the
juvenile court and has forfeited any challenge that requires us to review the
sentencing record. (Sheena K, supra, 40
Cal.4th at p. 889.) Accordingly, we only
consider Anthony's overbreadth arguments that present pure questions of
law.
"Computers
and Internet access have become virtually indispensable in the modern world of
communications and information gathering."
(United States v. Peterson (2d
Cir. 2001) 248 F.3d 79, 83.) Computers
and the Internet now " 'comprise[ ] the "backbone" of American
academic, governmental, and economic information systems.' " (In re
Stevens (2004) 119 Cal.App.4th 1228, 1234.)
"The Supreme Court has characterized the Internet as 'a vast
library including millions of readily available and indexed publications. . .
.' " (Ibid.)
"Restrictions
upon access to the Internet necessarily curtail First Amendment
rights." (In re Stevens, supra, 119
Cal.App.4th at p. 1235.) Thus, a
probation condition that restricts the use of a computer to access the Internet
"must closely tailor those limitations to the purpose of the condition to
avoid being invalidated as unconstitutionally overbroad." (Sheena
K., supra, 40 Cal.4th at p. 890;
see In re Stevens,
Here, we
are not troubled by Condition 56 that limits the ways in which Anthony may
communicate by prohibiting his use of Internet chat rooms and some social
networking sites. The juvenile court has
broader discretion in formulating the terms of a minor's probation that that
exercised with adult probationers. (
Although, as we note above, restrictions on access to the Internet
necessarily curtail First Amendment rights (In
re Stevens, supra, 119
Cal.App.4th at p. 1235), the state may restrict the constitutional right
so long as it is narrowly drawn to serve a compelling state interest. (Id.
at p. 1237). Anthony has associated with
criminal street gangs and committed crimes with members of criminal street
gangs. The juvenile court thus could
reasonably conclude that Anthony's access to certain websites, especially those
that allow him to easily communicate with members of criminal street gangs,
should be curtailed. Like the juvenile
in Victor L., supra, 182 Cal.App.4th 902, Anthony remains free to exercise his
constitutional right of expression but must use less sophisticated means, such
as a telephone, the mail, or in person communication. (See id.
at p. 921.) Moreover, we note that this
condition does not limit Anthony's access to all websites, just those the
juvenile court believed he could use to communicate with criminal street gang
members or associates. In other words,
this condition limits Anthony's "access to the Internet in ways designed
to minimize the temptation to contact his gang friends." (Id.
at p. 926.) We thus leave this condition
in place, unmodified. (See
Like
Condition 56, Condition 59 does not prohibit all of Anthony's access and use of
a computer and/or the Internet. Instead,
it merely requires that Anthony's computer use be supervised by an adult over
the age of 21 who is aware Anthony is on probation and of his charges. Anthony does not provide any cogent argument
why this condition is unconstitutional, but asserts it adds an "embarrassing
element into the supervision that is likely to lead [Anthony] to avoid
important computer use and familiarity."
This argument does not raise a pure question of law. Instead, it is a challenge to the
reasonableness of the condition. Because
Anthony did not make such an objection below, he has forfeited this
argument. (See Welch, supra, 5 Cal.4th
at pp. 234-237.)
We view
Condition 59 similar to Condition 56.
They both limit Anthony's access to the Internet in ways designed to
minimize the temptation to contact his gang friends or to otherwise use the
computer for illegal purposes by requiring adult supervision whenever he uses
the computer. (See Victor L., supra, 182
Cal.App.4th at p. 926.) They do not,
however, prohibit all use of the computer or the Internet.
Condition
60 is much more restrictive than Conditions 56 and 59. Condition 60 only permits Anthony to use a
computer for school work while being supervised. As such, this blanket restriction precludes
his extracurricular use of a computer to write letters; create art; use
software to learn a foreign language; learn about current local, national, and
international news; obtain medical information; and obtain other legitimate
information wholly unrelated to her criminal conduct in this case. Such a broad restriction is not narrowly
tailored and reasonably related to the state's interests in rehabilitating
Anthony and deterring future criminality.
Accordingly,
we conclude this restriction is unconstitutionally overbroad and must be
modified to protect Anthony's constitutional rights by adding language allowing
him to have supervised use of a computer not only for school-related
assignments, but also for legitimate work or personal purposes as his probation
officer may reasonably permit from time to time. (See In
re Hudson (2006) 143 Cal.App.4th 1, 11 ["[Defendant] will be allowed
to use a computer and access the Internet if he first obtains permission from
[his parole officer."].)
Furthermore, in the interest of avoiding any uncertainty regarding such
permitted use, the probation officer shall describe such permitted legitimate
use in writing and deliver that writing to Anthony and his parents, guardians,
or other adults charged with supervising his use of a computer. As so modified, we believe the probation
condition will not unduly impinge on Anthony's constitutional rights.
9. Conditions 57 and 58
Under
Condition 57, Anthony may not "posses any pornographic material including
computer files and disks, nor frequent web sites or bookstores or any other
place the minor knows or reasonably should know contains pornographic
material." Condition 58 prohibits
Anthony from accessing "any adult sexually explicit web site." Anthony asserts these conditions require a
scienter requirement to pass constitutional muster. Also, he insists the terms
"pornographic" and "sexually explicit" are too uncertain to
provide Anthony with notice regarding what conduct is prohibited. We disagree.
The phrase
"sexually explicit" is not so imprecise that Anthony will be unable
to determine whether he is in compliance with the terms of his probation. (See People
v. Turner (2007) 155 Cal.App.4th 1432, 1437 [prohibition on possession of
" 'sexually stimulating or sexually oriented material' " was not
vague or overbroad].) Nor are we
troubled by the use of the word "pornographic" in Condition 57. Pornography is "the depiction of erotic
behavior (as in pictures or writing) intended to cause sexual
excitement." (Webster's 11th
Collegiate Dict. (2006) p. 966, col. 2.)
Reading both Conditions 57 and 58 together, it is clear Anthony is
prohibited from possessing or accessing pictures, writings, or other material
whose primary purpose is to cause sexual arousal. These conditions are not too uncertain. However, we do modify both conditions to add
a knowledge requirement.
DISPOSITION
Condition
40 stating that "[t]he minor shall have no direct or indirect contact with
the victim(s), Kohl's Department Stores or their employees, Gerardo Camacho, or
Sandra Branch; witness(es); or co-offenders(s), Marlon Crawford, Michael
Bizzle, Victor Stoltey, or Isaac Godfrey, in this matter or any other of their
family members" is modified to read:
"The minor shall have no direct or indirect contact with
individuals he knows or has reason to know are the victim(s), employees of
Kohl's Department Stores, Gerardo Camacho, or Sandra Branch; witness(es); or
co-offenders(s), Marlon Crawford, Michael Bizzle, Victor Stoltey, or Isaac
Godfrey, in this matter or any other of their family members."
Condition
42 stating that "[t]he minor shall not be on any school grounds unless an
enrolled student and it is during regular school hours, unless authorized by
the Probation Officer" is modified to read: "The minor shall not enter on the campus
or grounds of any school unless enrolled, accompanied by a parent or guardian
or responsible adult, or authorized by the appropriate school authorities
and/or the Probation Officer."
Condition
43 stating "[t]he minor shall not be in any privately owned vehicle with
more than one person under the age of 18 unless accompanied by a parent or
legal guardian, or with permission of the Probation Officer" is modified
to read: "The minor shall not
knowingly be in any privately owned vehicle with more than one person under the
age of 18 unless accompanied by a parent or legal guardian, or with permission
of the Probation Officer."
Condition
44 stating that "[t]he minor is not to appear in Court or at any
courthouse unless he is a party or witness in the proceedings, or with
permission of the Probation Officer" is modified to read: "The minor shall not be present at any
court proceeding where he knows or the Probation Officer informs him that a
member of a criminal street gang is
present or that the proceeding concerns a member of a criminal street gang
unless he is a party, he is a defendant in a criminal action, he is subpoenaed
as a witness, or he has the prior permission of his Probation Officer."
Condition
46 stating that "[t]he minor shall not use, possess, transport, sell or
have in or under his/her control any firearm, replica, ammunition or other
weapon, including a knife, any explosive or any item intended for use as a
weapon, including hunting rifles or shotguns" is modified to read: "The minor shall not knowingly use,
possess, transport, sell or knowingly have in or under his control any firearm,
replica, ammunition or other weapon, including a knife, any explosive or any
item intended for use as a weapon, including hunting rifles or
shotguns."
Condition
54 stating that "[t]he minor is not to use force, threats, or violence on
another person" is modified to read:
"The minor is not to use unlawful force, threats, or violence on
another person."
Condition
57 stating that "[t]he minor is not to possess any pornographic material
including computer files and disks, nor frequent web sites or bookstores or any
other place the minor knows or reasonably should know contains pornographic
material" is modified to read:
"The minor is not to knowingly possess any pornographic material
including computer files and disks, nor knowingly frequent web sites or
bookstores or any other place the minor knows or reasonably should know
contains pornographic material."
Condition
58 stating that "[t]he minor is not to access any adult sexually explicit
web site" is modified to read:
"The minor is not to knowingly access any adult sexually explicit
web site."
Condition
60 stating that "[t]he minor is not to use a computer for any purpose
other than school related assignments.
The minor is to be supervised when using a computer in the common area
of his/her residence or in a school setting" is modified to read: "The minor is not to use a computer for
any purpose other than school-related assignments, except as his Probation
Officer may from time to time reasonably permit for legitimate work or personal
purposes by a written notice delivered to the minor, his parents, and other
adults supervising his computer use. The
minor is to be supervised when using a computer in the common area of his/her
residence or in a school setting." The trial court is directed to forward
a copy of the corrected order to the probation authorities. As so modified, the order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES,
J.
HALLER,
J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code unless otherwise specified.
name="_ftn2" title="">[2] When recommending the probation terms to the court, the
probation officer numbered the conditions.
The juvenile court's September 23, 2011 minute does not provide numbers
for the various conditions. Both parties referred to the probation condition by
number and also referred to each condition as a "term." For consistency and clarity, we use the same
number used by the parties to refer to the specific probation condition, but we
do not adopt the use of "term" instead of "condition."
