In re Elizabeth V.
Filed 3/20/13 In re Elizabeth V. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re ELIZABETH
V., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ELIZABETH V.,
Defendant and Appellant.
D061651
(Super. Ct.
No. J230398)
APPEAL from
a judgment of the Superior Court
of
County, Carlos O. Armour, Judge. Reversed in part, affirmed in part, and
remanded with directions.
The San
Diego County District Attorney's Office filed a juvenile petition under section
602 of the Welfare and Institutions Code (undesignated statutory references
will be to the Welfare and Institutions Code unless otherwise specified)
alleging Elizabeth V. made criminal
threats on October 29, 2011, and January 9, 2012 (counts 1 & 3,
respectively: Pen. Code, § 422;
victim: Leticia C.),
committed vandalism on October 29,
2011 (count 2: Pen. Code, §
594, subds. (a) & (b)(1); victim:
Elena C.) and willfully disobeyed a restraining order on January 9, 2012 (count 4: Pen. Code, § 166, subd. (a)(4)). Following a contested hearing, the juvenile
court sustained the petition as to counts 2, 3 and 4. The court dismissed count 1 "due to an
insufficiency of the evidence."
At the
declared Elizabeth a ward of the court and ordered that she be placed on
probation subject to a variety of conditions, including the four conditions
Elizabeth challenges in this appeal, which prohibit her from (1) "ALL
ONLINE COMMERCE"; (2) "us[ing] a computer for any purpose other than
school related assignments"; (3) "be[ing] 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";
and (4) "appear[ing] in Court or at any courthouse unless a party or
witness in the proceedings, or with permission of the Probation
Officer."
Elizabeth
contends the four foregoing conditions of her probation should be stricken
because they are unconstitutionally vague and overbroad. We conclude we must strike the all online
commerce prohibition because it is unconstitutionally overbroad. We also conclude the computer use restriction
prohibiting Elizabeth, even under supervision, from using a computer "for
any purpose other than school related assignments" is unconstitutionally
overbroad and must be modified to protect her
allowing her to have supervised use of a computer not only for school-related assignments, but also
for legitimate work or personal purposes as her probation officer may
reasonably permit from time to time. The
People concede and we agree we must modify the restricted driving condition to
include a knowledge requirement. We also
conclude we must strike the restricted court access condition because it is
unconstitutionally overbroad and remand the matter to the juvenile court to
fashion a narrower condition if the juvenile court finds the condition is still
necessary. In all other respects, we
affirm the juvenile court's judgment.
FACTUAL
BACKGROUND
A. The People's
Case
At around 4:00 a.m. on October 29, 2011, Elena heard a loud noise in the front
of her house and then her car alarm going off.
She looked outside and saw a group of people, including Elizabeth,
standing near her car and laughing.
Elena and her daughter, Leticia, saw Elizabeth
throw a brick at the car. The brick
landed on the windshield. Later, when
they went outside, they found another brick on the hood of the car. Elena estimated that the damage to the
windshield and hood of the car was more than $2,000.
In the
morning on January 9, 2012,
following a hearing, the juvenile court issued a restraining order prohibiting Elizabeth
from contacting Elena or Leticia. Elizabeth
was present at the hearing.
Later that
same day, Leticia received a telephone call from Elizabeth, who asked Leticia
why she was pursuing criminal charges
against her. Elizabeth
angrily threatened Leticia, saying, "It ain't over. I'm going to beat your ass. I'm going to stomp you out until you
bleed."
B.
Elizabeth
testified in her own defense. She denied
that she threw a brick at Elena's car and stated she was in Tijuana,
Mexico,
on the day the incident happened. She
also denied that she called Letiticia.
On cross-examination,
Elizabeth acknowledged that she
told a police officer in early November 2011 that she was present at the scene
during the incident. She testified that
she made that statement to the officer because her mother "was crying to
[her] to admit to it and to pay the damages." Elizabeth
acknowledged her mother offered to pay for the damage to Elena's car. Elizabeth
also admitted she has a Facebook account in which she posted a statement that
Leticia is "stupid."
DISCUSSION
I
Preliminarily,
we conclude that although Elizabeth acknowledges her counsel did not object in
the juvenile court to the four probation conditions she challenges here, she
has not (as the Attorney General contends) forfeited her claims that these
conditions are unconstitutionally vague and overbroad. Failure to object to a probation condition as
vague or overly broad does not result in a forfeiture where, as here, the objection presents a facial
challenge raising a pure question of law.
(In re Sheena K.
(2007) 40 Cal.4th 875, 888 (Sheena
K.); In re E.O. (2010) 188 Cal.App.4th 1149, 1153, fn. 1.) As Elizabeth
correctly points out, she does not refer to any particular facts in this case
and the Attorney General has presented no argument why her claims should be
deemed forfeited. The Attorney General
merely asserts that "[b]ecause [Elizabeth]
never objected to any of the conditions imposed, she has forfeited the
contentions on appeal."
Accordingly, we address the merits of her claims.
II
CONSTITUTIONALITY
OF THE FOUR CHALLENGED
CONDITIONS OF
PROBATION
Elizabeth
challenges on constitutional grounds the four probation conditions prohibiting
her from (1) "ALL ONLINE COMMERCE"; (2) "us[ing] a computer for
any purpose other than school[-]related assignments"; (3) "be[ing] 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"; and (4) "appear[ing] in Court or at any
courthouse unless a party or witness in the proceedings, or with permission of
the Probation Officer."
A.
"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
ward enhanced." (§ 730, subd.
(b).)
"The
juvenile court has wide discretion to select appropriate [probation] conditions
. . . ." (Sheena K., supra, 40 Cal.4th at p. 889.)
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; In re Antonio R.,
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. 875.)
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, fn. omitted, abrogated by Proposition 8 on another ground as explained in People
v. Wheeler (1992) 4 Cal.4th 284, 290-292.)
Furthermore,
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 due process concept of 'fair
warning.'" (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 [or her], and for the court to
determine whether the condition has been violated.'" (Sheena
K. 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." ' " (
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; In re 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.)
1.
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 term 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; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
B.
1.
Elizabeth
first contends the probation condition that she is prohibited from all online
commerce should be stricken because it is unconstitutionally vague and
overbroad on its face. She asserts (1)
the condition is unconstitutionally vague because it "necessarily chills
her exercise of protected Constitutional rights" and she "cannot tell
what behavior is prohibited"; and (2) it is unconstitutionally overbroad
because (among other things) it is not narrowly tailored to achieve the
juvenile court's goals of rehabilitating her and promoting public safety.
We conclude
this online commerce ban is unconstitutionally overbroad and must be
stricken. "Restrictions upon access
to the Internet necessarily
curtail First Amendment rights." (In re Stevens (2004) 119
Cal.App.4th 1228, 1235.) As already
discussed, the overbreadth doctrine requires that conditions of probation that
impinge on constitutional rights be closely or narrowly tailored, and
reasonably related, to the compelling state interest in reformation and
rehabilitation of the juvenile probationer.
(Sheena K., supra,
40 Cal.4th at p. 890; In re Victor L., supra, 182 Cal.App.4th 910; see also In re Stevens, at
p. 1237.)
Here, the
court imposed the challenged probation conditions, including the blanket online
commerce ban, after it found true the petition allegations that Elizabeth (1)
vandalized Elena's car on October 29, 2011 (count 2); (2) made criminal threats
against Leticia during a phone call on January 9, 2012 (count 3); and (3)
willfully disobeyed a restraining order by making that call on January 9, 2012
(count 4). The Attorney General has not
shown, and cannot demonstrate, that the challenged online commerce ban is
narrowly tailored and reasonably related to the compelling state interest in
Elizabeth's reformation and rehabilitation.
This sweeping probation condition imposes far-reaching restrictions
that, for example, would prevent her from using the Internet to buy books, find
medical or social service resources, search for a college, or purchase bumper
stickers and other materials related to political campaigns or charitable
causes. None of these and innumerable
similar "online commerce" restrictions are closely tailored and
reasonably related to the state's interests in rehabilitating Elizabeth and
promoting public safety. The online
commerce prohibition is unconstitutionally overbroad and must be stricken.
2.
Elizabeth
also contends a second computer use condition of probation prohibiting her from
"us[ing] a computer for any purpose other than school related
assignments"
title="">[3]
should be stricken because it is unconstitutionally vague and overbroad on its
face. She asserts the condition is
unconstitutionally vague because "[i]t is unclear exactly what a
school-related assignment might encompass"; and it is unconstitutionally
overbroad because this prohibition, "when read in tandem with the 'ONLINE
COMMERCE' prohibition, sweeps far too broadly in its attempt to achieve the
government's goals of rehabilitation and crime prevention."
"Computers
and Internet access have become virtually
indispensable in the modern world of communications and information
gathering." (United States v.
Peterson (2nd Cir. 2001) 248 F.3d 79, 83.)
Computers and the Internet now "'comprise[] the
"backbone" of American academic, governmental, and economic
information systems.'" (
supra, 119 Cal.App.4th at p. 1234.)
"The Supreme Court has characterized the Internet as 'a vast
library including millions of readily available and indexed
publications . . . .' " (Ibid.)
As already
noted, "[r]estrictions upon access to the Internet necessarily curtail First Amendment rights." (In re Stevens, supra, 19 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, at p. 1237.)
Here, the
blanket restriction on Elizabeth's use of a computer for only school-related
assignments precludes her 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
Elizabeth and deterring future criminality.
Accordingly,
we conclude this restriction is unconstitutionally overbroad and must be
modified to protect her constitutional
rights by adding language allowing her to have supervised use of a computer
not only for school-related
assignments, but also for legitimate work or personal purposes as her 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 Elizabeth and her parents or other adults charged
with supervising her use of a computer.
As so modified, we believe the probation condition will not unduly
impinge on Elizabeth's constitutional rights.
We reject
Elizabeth's claim that the condition at issue here is unconstitutionally vague
because "[i]t is unclear exactly what a school-related assignment might
encompass." As noted, the language
of a probation condition must be reasonably specific and will be found
unconstitutionally vague if it is not " 'sufficiently precise for the
probationer to know what is required of him [or her], and for the court to
determine whether the condition has been violated.' " (Sheena
K., supra, 40 Cal.4th at p.
890.) Here, the term "school related
assignments" is reasonably specific, and we are persuaded it is
sufficiently precise for Elizabeth to " 'know what is required of [her],
and for the court to determine whether the condition has been violated.' " (Ibid.)
3.
The
restricted driving condition prohibits Elizabeth 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." Elizabeth contends, the
People concede, and we agree the restricted driving condition must be modified
to include a knowledge requirement.
(See, e.g., Sheena K., 40 Cal.4th at pp. 890-892; People
v. Leon (2010) 181 Cal.App.4th 943, 950 (Leon).) As the Attorney
General acknowledges, "it is possible that [Elizabeth] could be in the
presence of minors without knowing that they were under 18 years of
age."
4.
The
restricted court access condition prohibits Elizabeth from "appear[ing] in
Court or any courthouse unless [she is] a party or witness in the proceedings,
or with permission of the Probation Officer." Elizabeth contends we must strike or modify
the restricted court access condition because it is unconstitutionally overbroad. We conclude this condition is
unconstitutionally overbroad and must be stricken.
Three
appellate courts have recently considered similar probation conditions, and all
three concluded the conditions were unconstitutionally overbroad. In Leon,
supra, 181 Cal.App.4th 943, the Court of Appeal held unconstitutionally
overbroad a condition that 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." (
Johnson's Restaurants, Inc. v. NLRB (1983) 461 U.S. 731 for the proposition
that "'[t]he right of access to the courts is an aspect of the First
Amendment right to petition the Government for redress of grievances,'"
the Leon court observed that
"[a] general ban on being present at any courthouse or court proceeding,
except when scheduled for a hearing or subpoenaed as a witness, may impinge
upon a host of constitutional rights."
(Leon, at p. 952.) The appellate court in Leon also observed that "[t]here can be a variety of
legitimate reasons for being at a court proceeding, other than to intimidate or
threaten a party or witness. For
example, defendant may need to file a document regarding a family matter or he
may, as a member of the public, wish to observe a newsworthy trial not
involving a gang member or himself."
(Id. at p. 953.)
In
380 (Perez), the appellate court held
unconstitutionally overbroad a condition that prohibited the probationer from
attending any court hearing or being "within 500 feet of any Court in
which [he] is neither a defendant nor under subpoena." (Id.
at pp. 382, 385.) The
"impose[d] unnecessary restrictions on [the probationer's] right to access
the courts and government offices" and prevented him from "filing or
appearing in a civil action or voluntarily testifying in a case in which he has
not been subpoenaed." (
constitutional infirmities it identified; rather, it struck the offending
condition and remanded the matter with the observation that the trial court
might "impose a narrower condition if it deems necessary." (Id.
at p. 386.)
More
recently, in In re E.O., supra, 188 Cal.App.4th 1149, the Court
of Appeal held unconstitutionally overbroad a condition that prohibited the
juvenile probationer from "knowingly com[ing] within 25 feet of a
Courthouse when the minor knows there are criminal or juvenile proceedings
occurring which involve[] anyone the minor knows to be a gang member or where
the minor knows a witness or victim of gang-related activity will be present,
unless the minor is a party in the action or subpoenaed as a witness or needs
access to the area for a legitimate purpose or has prior permission from his
Probation Officer." (
infringe[d]" upon the probationer's "specific right under the state
Constitution to attend and participate in court proceedings if he or a family
member is a victim of a crime;" and it would also "prevent him from
testifying voluntarily or addressing the court in a setting, such as a sentencing
hearing, where comments from members of the public might be received. (Id.
at p. 1155.)
The
conclusions and observations in Leon,
Perez, and In re E.O., apply equally in this case. Accordingly, we conclude we must strike the
restricted court access condition and remand the matter to the juvenile court
to fashion a narrower condition if the court continues to find the condition
necessary. (See Perez,
DISPOSITION
We modify
the judgment by striking the probation condition prohibiting "ALL ONLINE
COMMERCE."
We also
modify the judgment by striking the probation condition prohibiting Elizabeth
from using a computer "for any purpose other than school related
assignments," and we modify that condition to state: "The minor is not to use a computer for
any purpose other than school-related assignments, except as her 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."
We affirm the related probation condition that states: "The minor is to be supervised when
using a computer in the common area of [her] residence or in a school
setting."
We further
modify the judgment by striking the probation condition prohibiting Elizabeth
from "be[ing] 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," and we remand the matter to the
trial court with directions to modify the restricted driving condition to
include a knowledge requirement.
We also
modify the judgment by striking the probation condition prohibiting Elizabeth
from "appear[ing] in Court or any courthouse unless [she is] a party or
witness in the proceedings, or with permission of the Probation Officer,"
and we
remand the matter to the trial court with directions to the
juvenile court to fashion a narrower condition if the juvenile court finds the condition
is still necessary. In all other
respects, we affirm the juvenile court's judgment.
NARES,
J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] We refer to Leticia C. and her mother, Elena C., by their
first names because it appears Leticia, like Elizabeth, was a minor.
name="_ftn2" title="">[2] In light of our conclusion, we need not reach Elizabeth's
related claim that the online commerce prohibition is unconstitutionally vague.
