In re J.E.
Filed 6/28/12 In re J.E. CA1/4
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opinion has not been certified for publication or ordered published for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 J.E.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.E.,
Defendant and Appellant.
A133680
(San
Francisco City
& County
Super. Ct.
No. JW 106564)
I.
Introduction
Appellant
J.E., a minor, appeals from a dispositional order after finding that he came
within the provisions of Welfare and Institutions Code section 602. Appellant’s sole claim on appeal is a
challenge to the juvenile court’s probation conditions relating to prohibitions
against gang associations, displays, and activities. He claims they must be set aside because the
conditions are unconstitutionally vague
and overbroad. We disagree, and affirm the judgment.
II.
Procedural Background
The
dispositional order which is the subject of this appeal encompassed three
separate juvenile petitions filed by the
Francisco District Attorney seeking to have appellant declared a ward of
the court, pursuant to Welfare and Institutions Code section 602. The first petition was filed on November 2, 2010, and alleged one
count of second-degree robbery (Pen. Code, §§ 211/212.5, subd. (c)),
imprisonment (§ 236). Two
subsequent petitions were both filed on May
3, 2011. The first petition
filed on that date alleged a separate count of
subd. (c)), one count of felony assault (§ 245, subd. (a)(1)), and one
count of conspiracy to commit robbery (§ 182, subd. (a)(1)). The second petition filed on May 3,
2011, alleged that appellant was an active participant in a criminal street
gang, within the meaning of section 186.22, subdivision (a), and a
separate allegation of felony assault (§ 245, subd. (a)(1)). The assault allegation included a special
allegation that the crime was committed for the benefit of a
of section 186.22, subdivision (b)(1).
A
joint pretrial conference was held on all three petitions on August 26, 2011,
at which time negotiated jurisdictional admissions were agreed to between the
parties, made in open court by appellant, and accepted by the court. As to the November 2, 2010 petition, it was
amended to add a misdemeanor count alleging that appellant was an accessory
(§ 32), and the original two counts were dismissed by the prosecutor. Similarly, the first May 3, 2011 petition was
amended to add a misdemeanor count alleging that appellant was an accessory
(§ 32), and the original three counts were dismissed by the
prosecutor. As to the second May 3, 2011
petition, appellant admitted the felony assault allegation. The criminal street gang count (count one)
and the special gang enhancement were dismissed. The matter was continued to September 12,
2011, for disposition.
Prior
to the dispositional hearing, the prosecutor filed a sentencing memorandum in
which he requested that, in light of “the minor’s age; the circumstances and
gravity of the offenses committed; and the minor’s previous delinquency
history,” the court impose “Special Conditions of Probation for Gang Members
and Associates” (Special Conditions). A
copy of the Special Conditions was attached to the memorandum.
At
the outset of the dispositional hearing,
the court indicated its intention to declare appellant a ward of the court,
place him on probation, and order him placed in the home of his mother in
Richmond. The court also indicated its
intention following disposition to order the case transferred to the Contra
Costa County Juvenile Court for any further proceedings.
As
to the Special Conditions, the juvenile court initially stated: “Further, I know there is a more detailed
order, and I will review this with [the minor], but I must order that you not
associate with any person that you know or who the probation officer informs
you is a gang member. You’re not to
possess, wear, or display any clothing or insignia, tattoo, emblem, badge, or
button that you know or the probation officer informs you evidence [
in a gang. For purposes of these conditions, the word gang means a criminal street
gang as defined in Penal Code section
186.22.” (Italics added.)
During
the hearing, several comments were made by appellant’s counsel, who requested
three modifications be made to the Special Conditions. All were accepted by the court. No objections were made to the Special
Conditions. Appellant’s counsel stated
that once the requested modifications were made “I think that he would be fine
with accepting . . . it as presented.”
Turning
to the Special Conditions, the following exchange between the court and appellant took place:
“THE
COURT: All right. [appellant], I now
have before me a . . . [four]-page instrument entitled, ‘Special
Conditions of Probation For Gang Members and Associates, Order Imposing
Conditions.’ . . . Have
your reviewed each and every statement of understanding in this document
“[APPELLANT]: Yes, Ma’am.
“THE
COURT: Have you reviewed each statement
of understanding with your attorney
“[APPELLANT]:
Yes, Ma’am.
“THE
COURT: And are you representing to the court that you understand each statement
of understanding in the document
“[APPELLANT]:
Yes, Ma’am.
“THE
COURT: Then the court will order that these special conditions be put into
place. Do you understand all the orders
of probation
“[APPELLANT]:
Yes, Ma’am.”
A
copy of the Special Conditions, as modified, was signed by appellant and his
attorney. The court also signed the
Special Conditions, ordering them imposed as a condition of probation. At the top of the document, the following
admonition appears: “
used in these conditions, the term ‘gang’ means a criminal street gang as
defined in Penal Code section 186.22, subdivisions (e) and (f).” (Original italics and boldface.)
III.
Discussion
When
a juvenile offender is adjudged a ward of the court and placed under the
supervision of the probation officer, “[t]he 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.”
(Welf. & Inst. Code, § 730, subd. (b).) Conditions imposed on juvenile offenders may
be even broader than those pertaining to adult offenders because juveniles are
deemed to be more in need of guidance and supervision than adults and because
their constitutional rights are more circumscribed. (In re
Antonio C. (2000) 83 Cal.App.4th 1029, 1033 [prohibiting tattoos];
937, 941 [limiting travel]; In re Josh W.
(1997) 55 Cal.App.4th 1, 4-5 [requiring revelation of coparticipants];
1232, 1241-1243 [limiting association with others].)
Appellant
challenges imposition of the Special Conditions, principally arguing that they
are unconstitutionally vague because they inadequately defined the term “gang”
and “activity.” Respondent correctly
points out that no objections were made in the trial court to the imposition of
the Special Conditions, and that failure to object constitutes a forfeiture or
waiver of those objections on appeal. We
disagree. (In re Sheena K. (2007) 40 Cal.4th 875, 882, 885-886.) Even if forfeited, in order to forestall any
future ineffective assistance of counsel claim, we choose to address the
challenge to the Special Conditions on its merits.
Turning
to the merits of appellant’s objection, he primarily relies on
615 (Lopez). Relevant here, the court in
a probation condition
name="_ftnref3" title="">[3] was uncertain in meaning. (Id. p. 631.) However, the “fix” employed by the
probation condition, the definition of “gang” used in section 186.22,
subdivisions (e) and (f). (
variety of constitutional challenges, including claims based upon the First
Amendment and the due process clause of the Fourteenth. [citations
omitted] As these cases have explained,
the carefully crafted terms of the statute ensure that mere membership in a
criminal street gang will not be punished and that groups or associations whose
primary purpose is not the commission of crime will be excluded from
coverage. [Citations.]” (Id. p.
633.)
This
is exactly what the juvenile court did in this case. Not only did the judge reference the statute
in its admonitions to appellant,
name="_ftnref4" title="">[4] but the copy of the
Special Conditions signed by appellant and his attorney stated on the first
page in boldface and italicized font: “
means a criminal street gang as defined in Penal Code section 186.22,
subdivisions (e) and (f).”
(Original italics and boldface.) Appellant was asked specifically if he
understood each condition, to which he responded affirmatively.
For
purposes of constitutional attack for vagueness or overbreadth, nothing more
was needed to be done before the Special Conditions were imposed as conditions
of appellant’s probation. Therefore, we
reject appellant’s challenge on its merits.
IV.
Disposition
The
judgment is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
RIVERA, J.
_________________________
SEPULVEDA, J.
comprised of more than 400 pages, including numerous orders filed by the
juvenile court over a period of nine months, only a few of those pleadings are
material to the single issue raised on appeal.
We note further that appellant does not challenge the fact that certain
gang prohibition conditions were imposed as conditions of his probation. Therefore, only those matters which relate to
appellant’s contention that the gang conditions imposed were unconstitutionally
vague and overbroad are discussed.
name="_ftn2" title=""> [2] All subsequent statutory references are to
the Penal Code unless otherwise stated.
