In re R.G.

Filed 2/5/10 In re R.G. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant R. G. challenges two gang-related probation conditions that were imposed after the juvenile court found true an allegation that R. had violated Penal Code section 245, subdivision (a)(1). He contends that these two conditions were vague and overbroad and unnecessarily impinged on his First Amendment rights. We conclude that one of the two conditions requires modification to closely tailor it to its purpose, while the other challenged condition is not unconstitutional. We therefore modify and affirm the juvenile courts probation order.

I. Background

On June 21, 2009, 15-year-old J. and his sister were at a park playing with her toddler. When his sister chased after her toddler, J. was suddenly surrounded by a group of 15 to 20 young people who seemed mad. R. was one member of the group. Members of the group asked J. [i]f I was a Sureno. J. said he was not a Sureno. R. struck J. twice from behind on the ear with a thick wooden stick. J. began to run away, and R. struck a third blow with the stick to J.s back. J. ran to his nearby home, and R. led the rest of the group in chasing after him. R. and some of the other members of the group were swiftly detained. A number of them were Norteno gang members, and R. readily admitted that he was an active member of Julian Street Posse (JSP), a Norteno gang.

A petition was filed alleging that R. came within the provisions of Welfare & Institutions Code section 602 because he had violated Penal Code section 245, subdivision (a)(1). At the contested jurisdictional hearing, R. testified that he was an active Norteno gang member and was present in the park that day, but he denied assaulting J. The juvenile court found the allegation true.

Although R. was only 14 years old when he assaulted J., R. already had a lengthy history of association with Norteno gangs dating back to 2006. He had been caught with a folding knife at school in 2006. Between 2006 and 2009, R. had eight referrals settled at intake. By June 2008, R. had admitted that he was a member of JSP. R. has numerous Norteno gang tattoos on his hands, arms, and chest. His MySpace webpage contained statements supportive of his gang, statements deriding other gangs, and gang-related videos. While in juvenile hall for the assault on J., R. wrote gang graffiti on the wall of his room.

The juvenile court found that R. was gang entrenched. It placed R. on probation with numerous conditions including a 40-day term in juvenile hall, 60 days on electronic monitoring, and a number of gang conditions. Condition 19 provided: That said minor not possess, display or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures which he knows or which the Probation Officer informs him to be gang-related. Condition 21 provided: That said minor not post, display or transmit any symbols or information that the minor knows, or which the Probation Officer has informed him to be gang-related. R. filed a timely notice of appeal.

II. Discussion

R. challenges Conditions 19 and 21 as unconstitutionally vague and overbroad and contends that they are not closely tailored to his reformation and rehabilitation.

The juvenile court has wide discretion to select appropriate conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) [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. [Citations.] Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation]. (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 139.)

R. claims that Condition 19 is unconstitutionally overbroad because it is not limited to the gangs with which R. is affiliated and instead requires him to avoid colors, symbols, and paraphernalia from all gangs. 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. (Sheena K., supra, 40 Cal.4th at p. 890.) Condition 19 prohibits R. from possess[ing], display[ing] or wear[ing] any item or display[ing] any gang signs or gestures which he knows or which the Probation Officer informs him to be gang-related.

In our view, Condition 19 is closely tailor[ed] to its purpose. Although R. is still a young teenager, he has been entrenched in the gang culture for several years. The purpose of Condition 19 is to enhance his reformation and rehabilitation by requiring him to avoid all gang associations. While Condition 19s primary purpose is to end his current association with a Norteno gang, which led to his violent offense, it is also important to R.s reformation and rehabilitation that he avoid associations with any gang that might lead him to engage in any future criminal conduct. If R. were to wear insignia associated with a non-Norteno gang, he might be challenged by a member of a rival gang and thereby be led into precisely the type of intergang violence that Condition 19 is intended to help him avoid. We hold that Condition 19 was not required to be limited to insignia associated with Norteno gangs.

R. also claims that Condition 19 is invalid because it allow[s] the probation officer unlimited discretion in determining the scope of the proscribed items.[1] He relies on People v. ONeil (2008) 165 Cal.App.4th 1351 (ONeil). In ONeil, the probation condition ordered the defendant not to associate with any person, as designated by your probation officer. (ONeil, at p. 1354.) The First District Court of Appeal held that this condition was flawed because there are no limits on those persons whom the probation officer may prohibit defendant from associating with. (ONeil, at p. 1357.) The courts order does not identify the class of persons with whom defendant may not associate nor does it provide any guideline as to those with whom the probation department may forbid his association. Without a meaningful standard, the order is too broad and it is not saved by permitting the probation department to provide the necessary specificity. (ONeil, at pp. 1357-1358.) Here, although the court authorized the probation officer to designate those with whom defendant could not associate, it did not in any way define the class of persons who could be so designated. (ONeil, at p. 1358.) ONeil is readily distinguishable. Here, the juvenile court did define the class to which Condition 19 applied as gang signs or gestures and gang-related items. This definition provided a meaningful standard that limited and guided the probation officer in identifying prohibited signs, gestures, and items. Thus, Condition 19 is not unconstitutionally overbroad under ONeil.

R. challenges Condition 21 as unconstitutionally vague and overbroad. Condition 21 orders R. not to post, display or transmit any symbols or information that the minor knows, or which the Probation Officer has informed him to be gang-related. R. claims that Condition 21 is so vague that it is impossible to discern any boundaries of the proscribed conduct and is overbroad because it is not closely tailored to its purpose.[2] He asserts that Condition 21 cannot be modified to cure its flaws and urges us to strike it.

R.s challenge to Condition 21 has some merit. The prohibition on post[ing], display[ing] or transmit[ting] any [gang-related] symbols or information plainly targets speech that is ordinarily protected by the First Amendment. Indeed, Condition 21 appears to target all forms of interpersonal communication. Transmit means to send or convey from one person or place to another. (Merriam-Websters Collegiate Dict. (10th ed. 1993) p. 1255.) All communication involves the transmission of information. (Merriam-Websters Collegiate Dict. (10th ed. 1993) p. 233.) Although it is true that the First Amendments protection of speech is not absolute (People v. Lopez (1998) 66 Cal.App.4th 615, 628 (Lopez)), even a juvenile probation condition must be closely tailored to its purpose when it infringes on First Amendment rights. (Sheena K., supra, 40 Cal.4th at p. 890.) While the restriction of the prohibition to gang-related symbols or information cures any vagueness, the overbreadth of the prohibition remains. As R. suggests, it would not serve his reformation or rehabilitation to prohibit him from discussing his gang associations so long as those discussions were aimed at helping him to develop strategies for avoiding future gang involvement rather than directed toward a continuation of his gang entrenchment. Thus, we agree with R. that Condition 21 is unconstitutionally overbroad because it broadly infringes on R.s First Amendment rights and is not closely tailored to his rehabilitation and reformation.

Nevertheless, we disagree with R. that Condition 21 cannot be cured. The manifest purpose of Condition 21 was to prohibit the types of postings that were found on R.s MySpace webpage. The prohibition of such postings is indisputably closely tailored to R.s reformation and rehabilitation. Since Condition 19 prohibits R. from possessing or displaying any gang-related items, Condition 21 was not necessary to serve that purpose. We believe that Condition 21 may be rendered constitutional by restricting it to information or symbols that are posted, displayed, or transmitted on or through the Internet, and we will modify Condition 21 accordingly.

III. Disposition

The juvenile courts order is hereby modified so that Condition 21 reads as follows: That said minor not post, display or transmit on or through the Internet any symbols or information that the minor knows, or which the Probation Officer has informed him to be gang-related. As so modified, the order is affirmed.

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Mihara, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P. J.

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McAdams, J.

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[1] In his reply brief, R. contends that Condition 19 is overbroad because it says gang-related rather than criminal street gang-related. As he did not make this contention in his opening brief, we decline to address it.

[2] Relying on ONeil, R. also argues that Condition 21 provides the probation officer with unlimited discretion. However, as with Condition 19, ONeil is distinguishable because Condition 21 define[s] the class as gang-related symbols or information, which provides a meaningful standard to limit and guide the probation officers identification of prohibited communications.