Opinion
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. JD-06-00022
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. INTRODUCTION
Having been declared a ward of the juvenile court for the fifth time for violations of the law (Welf. & Inst. Code, § 602), minor J.T. appeals from a dispositional order, asserting five constitutional challenges to various gang probation conditions. He also challenges an order requiring him to pay $20 monthly for probation supervision on grounds it is an unauthorized sentence, violates equal protection, and lacks evidentiary support. The Attorney General contends that all of minor’s arguments have been forfeited and are untimely. For the reasons stated below, we will reach the merits of minor’s arguments, and will reverse the dispositional order, directing modifications of three probation conditions restricting minor’s presence in courthouses and areas of gang-related activities and near schools and striking the probation supervision fee.
Unless otherwise stated, statutory references are to the Welfare and Institutions Code.
2. HISTORY OF MINOR’S WARDSHIP
A. WARDSHIP FINDING (§ 602)
Minor, born in December 1990, was originally declared a ward of the San Benito County Juvenile Court in April 2006 after he admitted appropriating a lost shotgun without making reasonable efforts to return it to its true owner (Pen. Code, § 485). At an uncontested disposition hearing on May 8, 2006, he was placed on probation and subjected to various conditions, including “to not be at any location where gang activities take place” (capitalization omitted) and to pay a probation supervision fee of $5.00 monthly.
B. SECOND PETITION (§ 602)
Minor was continued as a ward of the San Benito County Juvenile Court after a second petition was sustained based on minor’s admission on January 29, 2007, that he attempted to evade a police officer (Veh. Code, § 2800.2) while driving a stolen truck (Pen. Code, § 496) without a license (Veh. Code, § 12500). At an uncontested disposition hearing on February 26, 2007, he was placed on probation subject to what a completed “findings, judgment and commitment order” form described as four “standard gang conditions” (capitalization and emphasis omitted):
The reporter’s transcript of this hearing is not in the record on appeal.
1. “The minor shall not be on or adjacent to any school campus during school hours unless with prior approval of school officials or probation officers.”
2. “The minor shall not frequent any areas of gang related activities and not participate in gang activities: wear/display logos, insignias, wear clothing, or be in possession of paraphernalia (including binders, books, written graffiti material) identifying gang membership/affiliation.”
3. “The minor shall not obtain any gang-related tattoos.”
4. “The minor shall not appear at any Court proceeding unless subpoenaed as a witness or ordered by the Court.”
In addition to the above standard gang conditions designated as 26a through 26d on the San Benito County form, the court imposed the following conditions numbered 27 and 28, respectively.
“The minor shall not be in possession of spray paint, markers, chalk, marking pens, or any other implements capable of writing graffiti unless authorized by school officials.”
“The minor shall not own, possess, or have access to any weapons, items, or artifacts as listed in Section 12020 P. C. and 12601 P.C., or stun guns or OC (pepper spray)/tear gas, or firearms during Wardship.”
He was also ordered to pay a probation supervision fee of $5.00 monthly.
C. THIRD PETITION (§ 602)
Minor was continued as a ward of the San Benito County Juvenile Court after he admitted, on April 16, 2007, a misdemeanor battery (Pen. Code, § 242) on another juvenile. According to the probation report, minor admitted that, apparently on another occasion, he had started a fight while in juvenile hall with a known Sureño gang member. At an uncontested disposition hearing on May 7, 2007, minor was continued on probation “as ward with all terms and conditions until age 18 yrs.” (underlining omitted) with “[a]ll previous terms and conditions to remain in full force and effect.”
D. FOURTH PETITION (§ 602)
Minor was continued as a ward of the San Benito County Juvenile Court after he admitted, on September 24, 2007, committing an assault on another juvenile by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). According to the probation report, minor and two associates were involved in a fight with rival gang members at a gas station in Hollister. At an uncontested disposition hearing on October 15, 2007, minor was continued on probation with “[a]ll previous terms and conditions to remain in full force and effect.” He was also committed to a 24-hour ranch institution for six months or successful completion of the program.
E. FIFTH PETITION (§ 777)
Minor was continued as a ward of the San Benito County Juvenile Court after he admitted, on October 20, 2008, violating five probation conditions, including what we have termed condition 2 above pertaining to possession of gang paraphernalia. A charge of a sixth violation was dismissed. On November 3, 2008, the court reinstated “minor’s wardship until age 18 yrs. with all prior terms and conditions.” (Underlining omitted.) He was continued on probation with “[a]ll previous terms and conditions to remain in full force and effect.”
The San Benito County Probation Department filed a wardship petition under section 602 on October 8, 2008, but attached to that petition was a notice of hearing alleging probation violations under section 777. Juvenile probation violations not amounting to crimes should be alleged in supplemental section 777 petitions. (In re Eddie M. (2003) 31 Cal.4th 480, 502.)
F. SIXTH PETITION (§ 602)
A wardship petition was initially filed in Santa Clara County Juvenile Court on November 19, 2009, alleging that minor had possessed a concealable weapon (Pen. Code, § 12101, subd. (a)) and harbored Robert Martinez after Martinez had committed an armed assault (Pen. Code, § 32). The second count was dismissed by the prosecution at a contested jurisdictional hearing.
At the hearing in June 2010, there was testimony indicating that minor and another young man fled in a car with a third man who had fired shots during a fight in a residence in Gilroy involving members of the Brown Pride Kings gang. As Gilroy police chased the car, minor, the rear-seat passenger, threw a Smith and Wesson Model 19 handgun containing three live rounds and three spent rounds out the window. After the hearing, on June 15, 2010, the Santa Clara County Juvenile Court found that minor had violated Penal Code section 12101, subdivision (a).
After this finding, the case was transferred to San Benito County. At an uncontested disposition hearing on August 9, 2010, minor and his counsel requested that he be declared eligible for a work furlough program with a delayed surrender date so that he could keep his job working as a cook about 24 hours per week and earning $270. The trial court agreed to these requests, and then stated, “I’ll adopt the recommended findings and orders.” The court declared minor a ward of the court until age 21 and ordered minor, among other things, to “[p]ay $20 a month as a supervision fee to probation.”
The court stated without objection: “Standard gang conditions will apply: Don’t be on or near any school unless you have the prior approval of school officials or the probation officer. Do not be in any areas of gang-related activities. Do not participate in gang activities. Don’t get any gang-related tattoos. Don’t wear or display any gang logos, insignia, clothing, or paraphernalia.... Don’t possess any implements capable of writing graffiti—spray paint, markers, chalk, marking pens—unless authorized. And do not own or possess or have access to any weapons, items, artifacts, or any stun guns, pepper spray, tear gas during the period of wardship.” Additional facts from this hearing are summarized below where relevant.
The judge signed a “findings, judgment and commitment order” form that checked off the same six conditions previously imposed as described above under the heading “Second petition.” Unchecked was a box next to the statement: “All previous terms and conditions to remain in full force and effect.”
3. THE ORDER IS APPEALABLE.
Invoking this court’s decision in In re Shaun R. (2010) 188 Cal.App.4th 1129 (Shaun R.), the Attorney General argues that all of minor’s appellate contentions are untimely and have been forfeited. The Attorney General misreads Shaun R.
In Shaun R., a majority of a panel of this court determined that it lacked jurisdiction to consider a minor’s challenges to probation conditions imposed sometime in 2008 under the following circumstances. The minor did not appeal from the 2008 dispositional order. (Id. at pp. 1135, 1141.) The minor did appeal from a November 2009 dispositional order that imposed new probation conditions as well as ordering “that ‘All previous Orders of the Court not inconsistent with today’s Orders remain in full force and effect.’ ” (Id. at p. 1136, fn omitted.) Minor’s notice of appeal did not designate the 2008 order. (Id. at p. 1139.) Disagreeing with a dissent, the majority determined that “the ‘all prior orders’ provisions did not reimpose the court’s previous orders. They expressly instructed the minor that the court’s prior orders that did not conflict with the 2009 Order ‘remain[ed] in effect’ or in ‘full force and effect.’ We interpret that language to mean that the prior orders were not terminated or revoked by the new dispositional order.” (Id. at pp. 1139-1140.) There was only one 2008 order that was not made anew in 2009. (Id. at pp. 1136, 1139.) The court concluded “that the ‘all prior orders’ provisions in the 2009 Order did not create a right to appeal the 2008 Orders that were already final, that the appeal of the 2008 Orders is not properly before us, and that we are without jurisdiction to entertain the minor’s arguments with regard to the 2008 Orders.” (Id. at p. 1141, fn. omitted.) The court did, however, consider challenges to probation conditions imposed by the 2009 order. (Id. at pp. 1134, 1137, 1141, 1145.)
As recited in the above history of the proceedings, the juvenile court originally imposed a set of “standard gang conditions” in February 2007 when a second petition was sustained. In May 2007, October 2007, and November 2008, the court expressly ordered that these previous conditions remain in full force and effect. However, in the August 2010 dispositional order challenged by this appeal, the juvenile court expressly did not order previous conditions to remain in full force and effect. Instead, the court adopted the recommended orders and imposed the same gang conditions again.
What minor is challenging here is the equivalent of the 2009 order that the Shaun R. majority reviewed on its merits. The majority acknowledged “if the juvenile court wishes to reimpose or incorporate a condition or term from a previous disposition order that has become final into a new disposition order, the court may do so by express reimposition or incorporation.” (Shaun R., supra, 188 Cal.App.4th 1129, 1141.) The court in this case did not say that it was reimposing previously imposed probation conditions, but that is exactly what it did. What the juvenile court did here was issue a new order that is not final and is subject to appellate challenge.
4. MINOR’S CLAIMS HAVE NOT BEEN FORFEITED.
The Attorney General does not assert that minor’s constitutional challenges to the gang probation conditions were forfeited by his failure to state them in the juvenile court. It is established that the forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).)
With respect to minor’s challenge to the probation supervision fee, the Attorney General does assert that challenge is forfeited by not only minor failing to object but by affirmatively accepting the fee. The Attorney General misreads the record. At the conclusion of the dispositional hearing, the juvenile court ordered minor to “[a]bide by the attached case plan.” This colloquy ensued:
The court: “You’ve had a chance to read and review that?
“The minor: Yes, your Honor.
“The court: And you understand all those rules?
“The minor: Yes, your Honor.
“The court: And you agree to them?
“The minor: Yes, your Honor.”
What we find in the clerk’s transcript on appeal is a two-page “findings, judgment and commitment order” form (capitalization omitted) proposed by the San Benito County Probation Department, followed by a four-page, separately titled “Case Plan” signed by a probation officer and a probation supervisor. The proposed judgment includes a $20 monthly probation supervision fee and a $100 restitution fine (§ 730.6, subd. (b)), but the case plan document does not specifically mention either of these amounts. The only part of the case plan related to a probation supervision fee is part of a list of rules. Three rules describe how minor should act while in custody, including daily school attendance and participation in academic programs. Four more rules describe how minor should act once released, including: “5. Once released, minor will continue to work at Cheap Seats in order to pay off his fines and fees, making minimum payments of $25.00 per month.”
By agreeing to this set of rules in the case plan, minor did not expressly agree to terms stated in a separate document or waive his appellate challenges to the probation supervision fee. A defendant may challenge for the first time on appeal the imposition of a fee as a probation condition when it is unauthorized as a matter of law and correctable without reference to factual findings. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402; People v. Anderson (2010) 50 Cal.4th 19, 26; see Sheena K., supra, 40 Cal.4th at p. 887.) Moreover, “no predicate objection in the trial court” is required to challenge the sufficiency of the evidence regarding a defendant’s ability to pay fees. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [“In the absence of a guilty plea, the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal.”].) Accordingly, we proceed to consider the merits of minor’s arguments, about which the Attorney General has nothing to say.
5. THE CHALLENGED GANG CONDITIONS
Minor claims that several of the gang probation conditions are unconstitutionally vague and overbroad. The California Supreme Court teaches that “[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 [constitutional] challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad.” (Sheena K., supra, 40 Cal.4th 875, 890.)
With respect to the courthouse condition, based on the record that it was not orally imposed, minor argues that it was never imposed at all and should be stricken. This raises the question of which part of the record is controlling: what the trial court stated orally or what was written in the court’s order. In People v. Gabriel (2010) 189 Cal.App.4th 1070, this court simply stated, “When there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls.” (Id. at p. 1073.) In People v. Freitas (2009) 179 Cal.App.4th 747 (Freitas), in the absence of argument on the point, the appellate court elected to review “the more inclusive oral pronouncement, ” rather than the written probation order signed by the judge. (Id. at p. 750, fn. 2.)
As explained by People v. Smith (1983) 33 Cal.3d 596, the older rule gave preference to the reporter’s transcript in the case of a conflict, but the modern rule is that when the clerk’s and reporter’s transcripts cannot be harmonized, the part of the record will prevail that is entitled to greater credence in the circumstances of the case. (Id. at p. 599; People v. Harrison (2005) 35 Cal.4th 208, 226; Freitas, supra, 179 Cal.App.4th at p. 750, fn. 2.)
We agree with the observations in People v. Thrash (1978) 80 Cal.App.3d 898 that probation “conditions need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order.” (Id. at pp. 901-902.) In this case, as in that one, the San Benito County Juvenile Court used a form containing numerous preprinted standard probation conditions selectively imposed by checking the applicable boxes. The juvenile court orally announced an intent to adopt—not to modify—the recommended probation conditions. To the extent that the court’s paraphrasing of the written conditions deviates from their wording, we do not ascribe any intent to modify the written conditions, which the judge signed. Under these circumstances, we will review the written conditions, including the courthouse restriction.
The judge’s signature on the form distinguishes this case from In re D.G. (2010) 187 Cal.App.4th 47 (D.G.), where the minor, but not the judge, signed a Judicial Council form containing juvenile probation conditions that differed from what was orally imposed by the judge and what was reflected in the written dispositional order. (Id. at p. 54.) Observing that “the probation department has no power unilaterally to modify a probation condition imposed by the court, unless granted that discretion by the court, ” the appellate court concluded that “the condition must be judged by the terms stated in the court’s order.” (Id. at p. 55.)
A. THE MEANING OF “GANG” SHOULD BE CLARIFIED.
Minor complains that “gang” should be defined. Two of the “standard gang conditions” use the word “gang.” Following People v. Lopez (1998) 66 Cal.App.4th 615, 634 (Lopez), this court has already determined that constitutional clarity can be achieved by substituting “criminal street gang” for “gang.” (Cf. People v. Leon (2010) 181 Cal.App.4th 943 (Leon).) We will order conditions two and three modified accordingly.
B. THE SCHOOL CONDITION SHOULD BE MODIFIED.
The first condition states: “The minor shall not be on or adjacent to any school campus during school hours unless with prior approval of school officials or probation officers.” Minor asserts that “adjacent to” is vague and overbroad and infringes on his constitutional rights to travel and to loiter.
A three-judge plurality of the United States Supreme Court has stated, “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this ‘right to remove from one place to another according to inclination’ as ‘an attribute of personal liberty’ protected by the Constitution.” (City of Chicago v. Morales (1999) 527 U.S. 41, 53, fn. omitted (plur. opn. of Stevens, J.).) A three-judge dissent stated, “there is no fundamental right to loiter.” (Id. at p. 113 (dis. opn. of Thomas, J.).)
Minor relies in part on D.G., supra, 187 Cal.App.4th 47, where the First District Court of Appeal considered the reasonableness of a condition stating: “ ‘Do not be on any campus or within 150 feet of any campus other than the school in which you are currently enrolled.’ ” (Id. at p. 51.) The court found the condition unreasonable, as it did not relate to minor’s past crimes in particular, to criminal behavior in general, or to future criminality. (Id. at p. 53.) Keeping Penal Code section 627.2 in mind, the court ordered the condition modified to state: “Do 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 permission of school authorities.” (Id. at p. 57.) D.G. is distinguishable because it was concerned with the condition’s reasonableness, not constitutionality. Minor has forfeited any challenge to the reasonableness of this condition by not asserting it in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237.)
Penal Code section 627.2 states in part: “No outsider shall enter or remain on school grounds during school hours without having registered with the principal or designee, except to proceed expeditiously to the office of the principal or designee for the purpose of registering.”
We are aware of no precedent considering whether the phrase “adjacent to” in a probation condition is vague or overbroad. Sheena K., supra, 40 Cal.4th 875 identified the governing concepts. “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).’ [Citation.] The vagueness doctrine ‘ “bars enforcement of ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” [Citations.]’ (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 (Acuna).) A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ (Id. at p. 1116.)” (Sheena K., supra, at p. 890.)
For example, in Lanzetta v. New Jersey (1939) 306 U.S. 451, the United States Supreme Court found the state’s use of the phrase “any gang consisting of two or more persons” in a statute to be “vague, indefinite and uncertain” (id. at p. 458) because it was subject to a number of interpretations. In Kolender v. Lawson (1983) 461 U.S. 352, the court found unconstitutionally vague a California statute that had been construed to require “that an individual provide ‘credible and reliable’ identification when requested by a police officer who has reasonable suspicion of criminal activity sufficient to justify a Terry detention.” (Id. at pp. 356-357, fn. omitted.) The court observed that the statue, as construed by the California courts, “contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a ‘credible and reliable’ identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest.” (Id. at p. 358.)
The word “adjacent” conveys proximity and generally means “close to, ” “lying near, ” “next to” or “adjoining.” (See American Heritage Dict. (3d ed. 1997) p. 16 [“Close to; lying near” and “Next to; adjoining”];Oxford University, Oxford English Dictionary Online (Nov. 2010) <http://www.oed.com/view/Entry/2414? redirectedFrom=adjacent> (as of Mar. 17, 2011) [“adjacent, adj. and n.”]; id. <http://www.oed.com/view/Entry/2414?redirectedFrom=adjacent> (as of Mar. 17, 2011) [“lying near or adjoining”]; Black’s Law Dictionary (9th ed. 2009) p. 46, col. 2 [“Lying near or close to, but not necessarily touching”].) According to another common dictionary, however, it can also mean “not distant: nearby.” (Webster’s Collegiate Dict. (10th ed. 1997) p. 14.)
We believe that the meanings of “adjacent” and “adjacent to” are clear enough as an abstract concept. They describe when two objects are relatively close to each other. The difficulty with this phrase in a probation condition is that it is a general concept that is sometimes difficult to apply. At a sufficient distance, most reasonable people would agree that items are no longer adjacent, but where to draw the line in the continuum from adjacent to distant is subject to the interpretation of every individual probation officer charged with enforcing this condition. While a person on the sidewalk outside a school is undeniably adjacent to the school, what about a person on the sidewalk across the street, or a person in a residence across the street, or two blocks away? As minor argues, “How far is just far enough?” To avoid inviting arbitrary enforcement and to provide fair warning of what locations minor should avoid, we conclude that the probation condition requires modification, either by identifying a specific distance from schools in general (e.g., 50 feet), employing a different measure of physical proximity (e.g., “on” or “one block away”) or otherwise mapping areas (e.g. “the 1200 block of Monterey Street in Hollister”) for the probationer to avoid.
We do not intend to suggest that all penal statutes employing the word “adjacent” are unconstitutionally vague. (E.g., Pen. Code, § 626.8 [prohibiting disruption of school by any person “who comes into any school building or upon any school ground, or street, sidewalk, or public way adjacent thereto”]; Pen. Code, § 4571 [prohibiting felons from coming on grounds of any institution housing prisoners without the warden’s consent or upon “lands belonging or adjacent thereto”]; Pen. Code, § 4574 [prohibiting bringing deadly weapons into any institution housing prisoners without consent or “within the grounds belonging to or adjacent to any such institution”]; Veh. Code, § 22522 [prohibiting parking a vehicle within three feet of “any sidewalk access ramp constructed at, or adjacent to, a crosswalk]; Veh. Code, § 25305 [restricting placing or displaying “any lighted fusee” “upon or adjacent to the highway or highway-railroad crossing”]; Welf. & Inst. Code, § 1001.7 [prohibiting felons from coming on grounds of any California Youth Authority institution without consent or upon “lands belonging or adjacent thereto”].) None of those statutes is currently before us.
Identifying an appropriate distance that is not overly restrictive of minor’s right to travel is not a question that we may resolve as a matter of constitutional law. The record contains no information about the locations of schools in San Benito County or about minor’s customary destinations. While a distance such as 50 feet may be an appropriate accommodation of minor’s rights and law enforcement concerns, this kind of question is properly answered based on the kind of specific facts absent in our record and is more a question of reasonableness than constitutionality. Accordingly, we will remand this case to allow the juvenile court an opportunity to tailor this condition to minor’s individual circumstances.
C. THE FREQUENTING CONDITION SHOULD BE MODIFIED.
The second condition provides in part: “The minor shall not frequent any areas of gang related activities.” Again invoking his right to travel, minor contends that this condition is vague and overbroad.
In In re H.C. (2009) 175 Cal.App.4th 1067 (H.C.), this court identified the word “frequent” as “not so much overbroad as obscure.” (Id. at p. 1072.) H.C. reversed the judgment to allow the trial court to more closely tailor this condition. (Id. at p. 1073.) In Leon, supra, 181 Cal.App.4th 943, this court modified such a condition to state: “You are not to visit or remain in any specific location which you know to be or which the probation officer informs you is an area of criminal-street-gang-related activity.” (Id. at p. 952.) We will order condition two modified accordingly.
D. THE COURTHOUSE CONDITION SHOULD BE MODIFIED.
The fourth condition states: “The minor shall not appear at any Court proceeding unless subpoenaed as a witness or ordered by the Court.” Minor asserts that this condition infringes on his constitutional right to participate in court proceedings.
One panel of this court considered a challenge to a similar condition in Leon, supra, 181 Cal.App.4th 943. The challenged condition 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.’ ” (Id. at p. 952.) To preserve the First Amendment right to attend court proceedings, Leon modified the condition to provide: “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.)
In In re E.O. (2010) 188 Cal.App.4th 1149 (E.O), a different panel of this court considered a different condition, which stated “ ‘[t]hat said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves [sic] 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.’ ” (Id. at p. 1152.) Aspects of that condition are like the modification imposed by Leon. E.O. concluded that the condition was still overbroad, but did not modify it, instead striking the condition to allow the trial court to “reconsider the necessity for, and thus the purpose of, the condition.” (Id. at pp. 1157-1158.) In a lengthy footnote, E.O. also suggested appropriate language if the trial court found such a restriction justified. (Id. at p. 1157, fn. 5.)
These opinions illustrate that there are different ways to accommodate legitimate concerns for court security and a probationer’s constitutional rights to seek legal relief and to attend court proceedings. In some cases the appropriate balance may be struck by applying other gang probation conditions to minor’s anticipated presence in a courthouse. We conclude that the challenged condition, as written, is overbroad. The current record does not contain sufficient information about the prevailing circumstances in the San Benito County to enable us to determine as a matter of constitutional law how to strike this balance. Accordingly, we will remand this case to allow the juvenile court an opportunity to tailor this condition to minor’s individual circumstances.
E. THE POSSESSION CONDITIONS REQUIRE NO MODIFICATION.
The fifth condition states: “The minor shall not be in possession of spray paint, markers, chalk, marking pens, or any other implements capable of writing graffiti unless authorized by school officials.” The sixth condition states: “The minor shall not own, possess, or have access to any weapons, items, or artifacts as listed in Section 12020 P. C. and 12601 P.C., or stun guns or OC (pepper spray)/tear gas, or firearms during Wardship.” In three sentences, minor’s opening brief asserts that both these conditions are overbroad for not including a personal knowledge requirement.
Minor quotes from In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.) that “Due process requires... that the probationer be informed in advance whether his conduct comports with or violates a condition of probation.” (Id. at p. 913.) In an earlier passage on page 910, the court stated: “Under the void for vagueness doctrine, based on the due process concept of fair warning, an order ‘ “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.” ’ (Sheena K., supra, 40 Cal.4th at p. 890.) The doctrine invalidates a condition of probation ‘ “ ‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” ’ (Ibid.)”
Victor L. did involve a challenge to a probation condition prohibiting “ ‘possession of a paging device or any other portable communication equipment... without express permission of the Probation Officer.’ ” (Victor L., supra, 182 Cal.App.4th at p. 919.) However, there was no claim in that case that the possession condition was lacking a knowledge requirement and the appellate court did not modify that condition. (Id. at pp. 919-922.) The court did modify other probation conditions to add knowledge requirements, but Victor L. provides no direct authority for adding a knowledge requirement to a possession prohibition.
In Leon, supra, 181 Cal.App.4th 943, this court did add a knowledge requirement to a probation condition implicitly prohibiting possession of specified items. We will explain why we consider that line of authority distinguishable. At issue in Lopez, supra, 66 Cal.App.4th 615, was an omnibus probation condition, No. 15, stating “ ‘The defendant is not to be involved in any gang activities or associate with any gang members, nor wear or possess, any item of identified gang clothing, including: any item of clothing with gang insignia, moniker, color pattern, bandanas, jewelry with any gang significance, nor shall the defendant display any gang insignia, moniker, or other markings of gang significance on his/her person or property as may be identified by Law Enforcement or the Probation Officer.’ ” (Id. at p. 622.) After concluding that the condition was fatally overbroad “because it prohibits Lopez from associating with persons not known to him to be gang members” (id. at p. 628), the court “also agree[d] with Lopez that condition No. 15 suffers from constitutionally fatal overbreadth because it prohibits Lopez from displaying indicia not known to him to be gang related. We will in this respect modify the condition so that it will apply only to displays of symbols known by Lopez to have a gang connotation.” (Id. at p. 629.) The court further ordered a modification of the reference to “gang indicia ‘identified by Law Enforcement or the Probation Officer.’ Without at least the insertion in this aspect of the condition of a knowledge element, Lopez was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise Lopez of the ‘identified’ items of gang dress before he was charged with a violation.” (Id. at p. 634.)
The original condition in Lopez prohibited involvement in gang activities. It is not clear why the appellate court’s modification omitted reference to gang activities.
One of the probation conditions challenged in In re Vincent G. (2008) 162 Cal.App.4th 238 stated, “ ‘2. You are not to possess, wear or display any clothing or insignias, emblems, badges, or buttons which are evidence of affiliation with or membership in a gang or display any gang signs or gestures, nor be at areas known to be frequented by gang members.’ ” (Id. at p. 245.) The court reasoned on page 245: “In People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna), the court acknowledged that a ‘prohibition against associating with “any other known [gang] member” might apply to a circumstance in which a defendant was engaged in one of the prohibited activities with someone known to the police but not known to him to be a gang member, ’ and that in such a case, ‘the City would have to establish a defendant’s own knowledge of his associate’s gang membership to meet its burden of proving conduct in violation of the injunction.’ (Id. at p. 1117; see People v. Lopez (1998) 66 Cal.App.4th 615, 627; People v. Garcia (1993) 19 Cal.App.4th 97, 102-103.) [¶] Acuna applies to juvenile wardship conditions. (In re Justin S. (2001) 93 Cal.App.4th 811, 816; see In re Sheena K., supra, 40 Cal.4th at p. 890.) Its reasoning applies equally to association with fellow gang members and to possession of gang clothing and other materials. We shall modify gang conditions 1 and 2 accordingly.”
In Leon, supra, 181 Cal.App.4th 943, this court confronted an implicit possession prohibition which stated, “ ‘No insignia, tattoos, emblem, button, badge, cap, hat, scarf, bandana, jacket, or other article of clothing which is evidence of affiliation with or membership in a gang.’ ” (Id. at p. 950.) The Attorney General had no objection to adding a knowledge requirement. (Ibid.) We agreed “with the parties that the condition is constitutionally defective because it lacks an explicit knowledge requirement. As with the previous contested gang condition, absent that qualification the condition renders defendant vulnerable to criminal punishment for possessing paraphernalia that he did not know was associated with gangs. (People v. Garcia, supra, 19 Cal.App.4th at p. 102.) Accordingly, we will modify the order to include a knowledge requirement.” (Leon, supra, 181 Cal.App.4th at p. 951.)
Shaun R., supra, 188 Cal.App.4th 1129 modified two probation conditions to provide “ ‘The minor shall not knowingly use, possess, or be under the influence of alcohol or any form of controlled or illegal substance without the legal right to do so’ ” and “ ‘The minor shall not knowingly possess, display or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures that he knows to be, or that the Probation Officer informs him to be, gang-related.’ ” (Id. at p. 1145.) The reasoning behind this modification is in the unpublished part of that opinion.
We consider Lopez and its progeny, with their concerns about unwitting possession of gang paraphernalia, to be inapposite. It takes some experience or training to identify what colors, symbols, hand signs, slogans, and clothing are associated with a seemingly ever-growing number of criminal street gangs. Indeed, “the subject matter of the culture and habits of criminal street gangs” is recognized as “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (People v. Gardeley (1996) 14 Cal.4th 605, 617, quoted from Evidence Code § 801, subd. (a).) This includes the significance of gang tattoos, gang graffiti, and hand signs. (People v. Ochoa (2001) 26 Cal.4th 398, 439 [disapproved on another point by People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14].) It is reasonable to impose an express knowledge requirement when identifying what qualifies as gang paraphernalia, clothing, and indicia is so unclear as to require expertise.
In stark contrast to the inherent vagueness of “gang paraphernalia” is the fifth condition in this case, which restricts unauthorized possession of various items usable for writing graffiti, including “spray paint, markers, chalk, [and] marking pens.” It is hard to imagine a clearer or more precise specification of prohibited items. We conclude that the fifth condition is sufficiently clear as to not require minor to guess at its meaning.
We now turn to the sixth condition. In part, the sixth condition parallels and incorporates Penal Code section 12020, subdivision (a)(1), which prohibits, among other things, possessing “any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any fléchette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade or metal replica handgrenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.” The statute also prohibits carrying a concealed dirk or dagger. (Pen. Code, § 12020, subd. (a)(4).)
Subdivision (c) of Penal Code section 12020 provides definitions for many of these listed items in 25 subparts containing almost 1, 900 words. For example, subdivision (c) states, “(16) As used in this section, a ‘shobi-zue’ means a staff, crutch, stick, rod, or pole concealing a knife or blade within it which may be exposed by a flip of the wrist or by a mechanical action.” We refer the reader to the statute for other definitions.
People v. Rubalcava (2000) 23 Cal.4th 322 rejected an argument that the intent to use the concealed instrument as a stabbing instrument is an element of the crime of carrying a concealed dirk or dagger. (Id. at pp. 328-331.) The court explained on pages 331-332: “By declining to make defendant’s intended use of the instrument an element of the offense, we do not eliminate the mens rea requirement. Because the dirk or dagger portion of Penal Code section 12020 criminalizes ‘ “traditionally lawful conduct, ” ’ we construe the statute to contain a ‘knowledge’ element. (People v. Coria (1999) 21 Cal.4th 868, 880-881.) Thus, to commit the offense, a defendant must still have the requisite guilty mind: that is, the defendant must knowingly and intentionally carry concealed upon his or her person an instrument ‘that is capable of ready use as a stabbing weapon.’ (§ 12020, subds. (a), (c)(24).) A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty of violating section 12020.” (Fn. omitted.)
Relying on People v. Rubalcava, supra, 23 Cal.4th 322¸ In re R.P. (2009) 176 Cal.App.4th 562 concluded that a probation condition prohibiting possession of any dangerous or deadly weapon was not unconstitutionally vague. (Id. at pp. 568-569.) However, there was no contention on that appeal that the condition was lacking a knowledge requirement.
In People v. King (2006) 38 Cal.4th 617, the Supreme Court more generally concluded “that section 12020(a)(1) is not a public welfare offense, and that the prosecution must prove the possessor’s knowledge of the weapon’s illegal characteristics.” (Id. at p. 620.) The court explained: “First, the prosecution must prove that the item had the necessary characteristic to fall within the statutory description. It must also prove that the defendant knew of the characteristic. That is, it must prove that a defendant charged with possession of a short-barreled rifle knew the rifle was unusually short, but the defendant need not know the rifle’s actual dimensions. Similarly, a defendant charged with illegally possessing a cane sword must know that the cane contained a sword, and a defendant charged with possessing a writing pen knife must know that the pen contained a stabbing instrument. Knowledge can, of course, be proved circumstantially. Further, the prosecution need not prove that the defendant knew there was a law against possessing the item, nor that the defendant intended to break or violate the law.” (Id. at p. 627.)
Thus, it is implicit in the crime defined by Penal Code section 12020 that possession of a proscribed item includes not only its actual possession, but also the possessor’s knowledge of the characteristic rendering it a weapon. We believe the same is true of this probation condition which prohibits the same conduct.
We agree with the following observations by the Third District Court of Appeal in in Freitas, supra, 179 Cal.App.4th 747, which considered the same challenge to the probation condition—“Not own, possess or have custody or control of any firearms or ammunition”—a condition which tracked Penal Code section 12021. (Id. at p. 750, fn. omitted.) “We agree it is unnecessary to specify that defendant must know a gun is a gun.” (Id. at p. 752.) “A requirement of knowledge should be read into the probation condition for the same reason knowledge is required by CALCRIM No. 2510: the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition.” (Ibid.) We respectfully disagree with the court’s surprising conclusion from these premises “that it is appropriate to modify the probation condition to specify that defendant not knowingly possess the prohibited items.” (Ibid.)
Freitas invoked Lopez, supra, 66 Cal.App.4th 615 in support. We have already discussed Lopez and its progeny above. Their concern was with delimiting an otherwise broad and uncertain category of items qualifying as gang paraphernalia and gang indicia. We are unaware of any California statute, penal or otherwise, like Penal Code section 12020 that provides a limited list, with definitions, of items qualifying as gang paraphernalia. Including an express knowledge requirement in such a probation condition appears necessary to circumscribe what might otherwise be a cornucopia of items imaginatively characterized as gang paraphernalia.
In contrast, in addition to specifically listing proscribed weapons, Penal Code section 12020 implicitly requires that a possessor know the characteristics of the item possessed before possession is proscribed. We conclude that the conduct proscribed by Penal Code section 12020 is coextensive with that prohibited by this probation condition that expressly incorporates the statute. As the statute includes an implicit knowledge requirement, the probation condition need not be modified to add an explicit knowledge requirement.
This court reached the same conclusion in People v. Kim (Mar. 22, 2011, H035561) __Cal.App.4th__, which involved a probation condition stating, “You shall not own, possess, have within your custody or control any firearm or ammunition for the rest of your life under Section[s] 12021 and 12316 [subdivision] (b)(1) of the Penal Code.” That case is related precedent, but the probation condition referenced different Penal Code sections than the sixth condition in this case.
The reference to Penal Code section 12601 does not similarly include an implicit knowledge requirement. Indeed, that statute, part of the Dangerous Weapons Control Law, does not define a crime. Instead it provides a definition of “less lethal weapon” in order to clarify what Penal Code section 12600 authorizes a peace officer to possess “for official use in the discharge of his or her duties.” However, the probation condition itself prohibits possession of items listed in this statute. We conclude that the word “possess” includes the same implicit knowledge requirement in referring to both statutes, so the sixth probation condition does not require modification.
Penal Code section 12601, subdivision (a) states in part: “ ‘Less lethal weapon’ means any device that is designed to or that has been converted to expel or propel less lethal ammunition by any action, mechanism, or process for the purpose of incapacitating, immobilizing, or stunning a human being through the infliction of any less than lethal impairment of physical condition, function, or senses, including physical pain or discomfort.”
6. THE ORDER TO PAY A PROBATION SUPERVISION FEE WAS UNAUTHORIZED.
Minor asserts several challenges to the order requiring him to pay $20 a month as a fee for his supervision on probation.
We agree with his claim that such an order is unauthorized by statute. A comparison of the evolution of the statutes authorizing juvenile and adult probation is illuminating.
Former Penal Code sections 1203 and 1203.1 have long authorized trial courts to impose fines and require financial reparation and restitution in proper cases as conditions of probation for adults. (E.g. People v. Lippner (1933) 219 Cal. 395, 398; In re McVeity (1929) 98 Cal.App. 723, 726.) Under this former statutory scheme, People v. Baker (1974) 39 Cal.App.3d 550 concluded that the statutes did not authorize imposing a probation condition requiring a probationer to pay for the costs of either his probation supervision or his prosecution. The court observed that “[j]urisdictions that permit imposition of such costs generally do so under the explicit authority of statute” and concluded that “Penal Code section 1203.1 explicitly authorizes the imposition of only limited fines as part of probation, which in turn should be oriented towards rehabilitation of the defendant and not toward [sic] the financing of the machinery of criminal justice.” (Id. at p. 559.)
Eventually, the Legislature responded to this decision by adding section 1203.1b to Penal Code in 1980. (People v. Washington (2002) 100 Cal.App.4th 590, 594-595.) As initially enacted, the statute conferred discretionary authority on trial courts to order payment of the reasonable cost of probation. The order was made mandatory in 1989. (Id. at p. 592, fn. 1.) It currently provides, “The court shall order the defendant to pay the reasonable costs [of probation supervision, any preplea investigation and report, any presentence investigation and report, and processing transfers] if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative.” (Pen. Code, § 1203.1b, subd. (b).) The statute describes an elaborate procedure for making such an order. The court shall first order the defendant to appear before the probation officer so that the officer may ascertain the defendant’s ability to pay any part of the reasonable costs of these various costs and to propose a payment schedule. (Pen. Code, § 1203.1b, subd. (a).) Unless the defendant’s rights are waived, before the court orders payment of these costs the defendant is entitled to a court hearing on his or her ability to pay them. (Pen. Code, § 1203.1b, subd. (b).) A court order is enforceable as a civil judgment and not by way of contempt. (Pen. Code, § 1203.1b, subd. (d).)
Case law interpreting this statute, on which minor relies, has determined that it does not authorize trial courts to order payment of these costs as a condition of probation. (People v. Wilson (1982) 130 Cal.App.3d 264, 269; People v. Bennett (1987) 196 Cal.App.3d 1054, 1056; People v. Hart (1998) 65 Cal.App.4th 902, 907; People v. Benner (2010) 185 Cal.App.4th 791, 797; People v. Pacheco, supra, 187 Cal.App.4th 1392, 1401-1403.)
We have studied the Welfare and Institutions Code in vain for parallel provisions authorizing a juvenile court to order a delinquent minor to pay any part of the costs of supervising him or her on probation.
Section 730, subdivision (b), does broadly authorize reasonable probation conditions. “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.’ ” ’ ([Citation]; Welf. & Inst.Code, § 730, subd. (b); [citation]). In distinguishing between the permissible exercise of discretion in probationary sentencing by the juvenile court and that allowed in ‘adult’ court, we have advised that, ‘[a]lthough the goal of both types of probation is the rehabilitation of the offender, “[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment.... [¶] In light of this difference, 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....” ’ ” (Sheena K., supra, 40 Cal.4th 875, 889; see E.O., supra, 188 Cal.App.4th 1149, 1152.)
Section 730, subdivision (b) states in part that “the court may make any and all reasonable orders for the conduct of the ward including the requirement that the ward go to work and earn money for the support of his or her dependents or to effect reparation.” (Our emphasis.) Former section 731 also authorized ordering “the ward to make restitution” (our emphasis), but it did not specifically provide for ordering payment of a fine. Under that statutory scheme, In re Timothy E. (1979) 99 Cal.App.3d 349 concluded that juvenile courts lacked authority to impose fines. (Id. at p. 354; cf. In re Jon D. (1978) 84 Cal.App.3d 337, 340 [“the statutory scheme does not authorize the juvenile court to impose a fine where a minor is adjudicated a ward and confined without probation”].) The year after In re Timothy E., supra, 99 Cal.App.3d 349 was decided, the Legislature amended section 731 to authorize imposition of fines up to $250 if the court finds that the minor has the ability to pay. (Stats. 1980, ch. 626, § 2, p. 1712; see now § 731, subd. (a)(1).) The Legislature also enacted section 730.5, which authorizes ordering wards to pay fines if the court finds that the minor has the financial ability to pay. (Stats. 1980, ch 991, § 2, p. 3137.)
Both adult and juvenile probationers are now subject to imposition of orders to pay restitution fines and victim restitution. The adult restitution fine is imposed whether or not probation is granted. (Pen. Code, § 1202.4.) The juvenile restitution fine is imposed as a condition of probation. (§ 730.6, subd. (l).)
However, we find no counterpart to Penal Code section 1203.1b in the Welfare and Institutions Code. As minor points out, its closest analog is section 903.2, which states: “(a) The juvenile court may require that the father, mother, spouse, or other person liable for the support of a minor, the estate of that person, and the estate of the minor shall be liable for the cost to the county of the probation supervision, home supervision, or electronic surveillance of the minor, pursuant to the order of the juvenile court, by the probation officer. The liability of these persons (in this article called relatives) and estates shall be a joint and several liability.
“(b) Liability shall be imposed on a person pursuant to this section only if he or she has the financial ability to pay. In evaluating a family’s financial ability to pay under this section, the county shall take into consideration the family income, the necessary obligations of the family, and the number of persons dependent upon this income.”
In light of the parallel developments of the statutes governing adult and juvenile probationers, we agree with minor’s contention that there is no statutory authority to require him, as a condition of probation or otherwise, to pay for the cost of his own probation supervision. Penal Code section 1203.1b indicates that the Legislature is well aware of how to authorize such an order. Section 903.2 makes it discretionary whether to make such an order against responsible relatives, but not against minors. We conclude that the order in this case against minor must be stricken as unauthorized.
DISPOSITION
The dispositional order is reversed and remanded for the juvenile court to prepare a new order striking the provision that the minor pay any amount for probation supervision and modifying the gang conditions 26a, 26b, and 26d in accordance with the directions of this opinion.
WE CONCUR: RUSHING, P.J., DUFFY, J.
There is no such dispute about the established right of intrastate travel protected by the California Constitution. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100.)