In re A.R.
Filed 9/12/08 In re A.R. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.R., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. A.R., Defendant and Appellant. | A120447 (Contra Costa County Super. Ct. No. J05-02113) |
A.R. appeals from a dispositional order placing him on probation. He contends that the probation condition requiring that he have no gang associations is overbroad and vague. We modify the condition, but otherwise affirm the order.
I. FACTUAL BACKGROUND
Defendant was charged, pursuant to Welfare and Institutions Code section 602, with felony possession of marijuana (Health & Saf. Code, 11359) and misdemeanor carrying a loaded firearm in a vehicle (Pen. Code, 12031, subd. (a)(1)). The probation report indicates that the charges stemmed from an incident in which police officers effected a traffic stop and defendant, the rear passenger of the car, fled. The police detained defendant, who dropped a semi-automatic pistol while the police were in pursuit. The police found a plastic bag containing 26 baggies of marijuana in defendants possession.
On December 2, 2005, defendant entered a negotiated plea admitting the firearm charge and a new charge of misdemeanor possession of marijuana (Health & Saf. Code, 11357, subd. (a)). The court dismissed the felony possession count. On December 30, 2005, the court adjudged defendant a ward of the court, committed him to the Boys Ranch for six months to be followed by a 90-day conditional release/parole period on conditions including [n]o gang associations, colors, clothing, insignias, signs, paraphernalia or activities.
On July, 31, 2006, a supplemental petition was filed alleging defendant violated probation. Defendant admitted possessing cocaine base and methamphetamine (Health & Saf. Code, 11350, subd. (a)). On August 30, 2006, the court continued defendant on probation with a 146-day ranch commitment.
On May 14, 2007, defendant admitted testing positive for marijuana, a violation of his probation. The court, however, dismissed the violation, terminated his parole and placed him on home supervision for 30 days. On May 30, 2007, defendant was found to have violated home supervision. The court ordered defendant to perform 12 hours of volunteer work.
On November 19, 2007, defendant admitted violating probation in that he failed to report to his probation officer. The court continued defendant on probation on the same terms and conditions.
On December 5, 2007, the court again found defendant to have violated probation. The court adjudged defendant a ward of the court and ordered that he be detained in juvenile hall pending placement. The court ordered that the prior probation orders and conditions were to remain in effect. This appeal followed.
II. DISCUSSION
Defendant contends that the condition of probation requiring that he have no gang associations is unconstitutionally overbroad and vague. He argues that the condition must be modified to contain a knowledge requirement, and to define the term gang as a criminal street gang within the meaning of Penal Code section 186.22. The Attorney General concedes that the condition must be modified.
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 challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a persons constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In People v. Lopez (1998) 66 Cal.App.4th 615, 627-635, the court addressed a probation condition proscribing gang associations similar to the one here. The court held that the condition was overbroad because it prohibited the defendant from associating with persons not known to him to be gang members and from displaying indicia not known to him to be gang related. (Id. at pp. 628-629.) The court further held that the term gang was vague and uncertain in meaning. (Id. at p. 631.) The court, therefore, modified the condition to narrow its reference to persons and indicia known to the defendant to be associated with a gang and to define the term gang as a criminal street gang within the meaning of Penal Code section 186.22, subdivision (f). (Lopez, at p. 638.)
As the probation condition here suffers from the same infirmities as the one in Lopez, we order that it be modified to require a knowing violation and to define the term gang.
III. DISPOSITION
The [n]o gang associations condition of probation is modified as follows: You are not to knowingly associate with any gang members, participate in any gang activities, possess or wear any gang colors, clothing, signs, insignias or paraphernalia. The term gang means a criminal street gang as defined in Penal Code section 186.22. As so modified, the order is affirmed.
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RIVERA, J.
We concur:
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RUVOLO, P.J.
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REARDON, J.
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