Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36254.
Mihara, J.
In September 2009, the Santa Clara County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging that appellant Victor R. committed two counts of vehicle theft (Veh. Code, § 10851, subd. (a) - counts 1 and 2) and one count of resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1) - count 3). In January 2010, a petition alleging that appellant vandalized property causing damage amounting to $400 or more (Pen. Code, § 594, subds. (a) & (b)(1)) was filed. The juvenile court sustained counts 1 and 2 of the September petition as felonies, and dismissed count 3. Appellant admitted the allegation in the January petition as a misdemeanor. The juvenile court then declared appellant a ward of the court and placed him on probation with electronic monitoring. On appeal, appellant contends: (1) there was insufficient evidence to support the juvenile court’s finding on count 2; and (2) the juvenile court erred when it imposed vague and overbroad probation conditions relating to gangs. We conclude that there was insufficient evidence to support the finding on count 2 and reverse as to this count. On remand we also direct the juvenile court to modify certain probation conditions.
I. Statement of Facts
At approximately 4:55 p.m. on September 5, 2009, Officers Michael Jeffrey and Michael O’Neill were conducting surveillance in an undercover vehicle near Harvest Drive and Clayton Street when they saw appellant enter a 1988 white Toyota Camry. Appellant appeared to be wearing gang clothing. According to Officer O’Neill, at least six gang members had been arrested for stealing 1980’s Toyota Camrys in this neighborhood in the last year or two. Appellant drove past the officers’ vehicle, made a U-turn, and passed the officers again. By the time that the officers learned that the Toyota Camry had been reported stolen, appellant had driven away. A couple minutes later, the officers saw the Toyota Camry unoccupied and parked across the street from a house at 1538 Fall Street. Appellant was standing in front of this house with two other people.
Officers Jeffrey and O’Neill set up surveillance of that location. Approximately 30 to 45 minutes later, they saw appellant and another minor, Anthony, enter a 1989 white Toyota Camry. Anthony drove the car while appellant was in the front passenger seat. After learning that this car had also been reported stolen, the officers requested that a uniformed officer stop the car. About two blocks away, another officer stopped the 1989 Toyota Camry and seized a pair of scissors from Anthony.
Appellant told Officer Jeffrey that he had not driven the 1988 Toyota Camry and that his friend had picked him up in the 1989 Toyota Camry. After Officer Jeffrey told him that he had seen him enter the 1989 Toyota Camry with his friend, appellant stated that he knew the car was stolen because Anthony used the scissors to start it.
The parties stipulated that the 1988 Toyota Camry and the 1989 Toyota Camry had been stolen on or about September 3, 2009.
Appellant testified that he walked to Anthony’s house at approximately 4:50 or 5:00 p.m. and stayed in front of the house with Anthony and his father for an hour. During that time he did not see anyone drive the 1988 Toyota Camry or park it across the street. Appellant then walked with Anthony to a nearby location where a 1989 Toyota Camry was parked. According to appellant, Anthony owned a Toyota Camry. However, appellant did not believe the 1989 Toyota Camry belonged to Anthony, and he did not know who the owner of this car was. Appellant thought it was unusual that Anthony owned a car because he was 15 years old. He did not suspect the 1989 Toyota Camry was stolen even though it was parked two blocks from Anthony’s house. However, when appellant entered the car, he knew it was stolen because Anthony used scissors to start it. Anthony drove the car two blocks before they were stopped by the police.
Appellant also denied driving a 1988 white Toyota Camry to Anthony’s house. He was unaware that Anthony had stolen cars or had been arrested three times for stealing cars. Appellant also acknowledged that he had initially lied to Officer Jeffrey.
I. Discussion
A. Sufficiency of the Evidence
Appellant contends that there was insufficient evidence to support the juvenile court’s finding on count 2. We agree.
In considering a sufficiency of the evidence claim in juvenile delinquency proceedings, this court applies the same standard of review that is applicable in criminal cases. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809.) Thus, this “court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Vehicle Code section 10851, subdivision (a) provides in relevant part that “[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with the intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense....”
Here, it is undisputed that appellant was not the driver of the 1989 Toyota Camry. Thus, the issue is whether there was substantial evidence that appellant was “a party or an accessory to or accomplice in the driving or unauthorized taking or stealing.” (Veh. Code, § 10851, subd. (a).) “ ‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 851.) “Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Such evidence may, however, be considered together with other evidence in determining that a person is an aider and abettor. [Citation.]” (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.)
People v. Clark (1967) 251 Cal.App.2d 868 (Clark) is instructive. In Clark, the defendant was a passenger in a car that went through a stop sign. After the car collided with another vehicle during the ensuing police chase, the defendant and the other occupants of the car ran away. When the defendant was caught, he stated that he did not know the car was stolen until the police chase began. (Clark, at p. 873.) At issue was whether there was substantial evidence to support the defendant’s conviction under Vehicle Code section 10851. (Clark, at p. 874.) As in the present case, the issue was whether there was sufficient evidence that the defendant was an accomplice. (Ibid.) In reversing the judgment, Clark explained: “[T]hat theory requires proof of more than mere presence in the automobile. At a minimum, defendant must have known that the vehicle had been unlawfully acquired and must have had that knowledge at a time when he could be said to have, in some way, aided or assisted in the driving. Knowledge of the unlawful taking, acquired after the ride started and when defendant could neither stop the trip nor leave the vehicle is not enough.” (Ibid., italics added.)
Here, appellant accompanied Anthony to the 1989 Toyota Camry. Appellant gave conflicting testimony regarding whether he believed that Anthony owned the Toyota Camry. In any event, it was undisputed that he knew the car was stolen when Anthony used scissors to start it. However, there is no evidence that appellant was with Anthony when the car was taken. Nor is there any evidence that appellant, a passenger in the car for a mere two blocks, “had that knowledge at a time when he could be said to have, in some way, aided or assisted in the driving.” (Clark, supra, 251 Cal.App.2d at p. 874.) Accordingly, there is insufficient evidence to support count 2.
The cases upon which the People rely do not support their position that “appellant’s acknowledgments and improbable explanations, permitted the trier of fact to infer guilt of the charged offense.” In People v. McFarland (1962) 58 Cal.2d 748 (McFarland), People v. O’Dell (2007) 153 Cal.App.4th 1569 (O’Dell), and People v. Green (1995) 34 Cal.App.4th 165 (Green), the reviewing courts considered whether there was substantial evidence to support the defendants’ convictions for unlawfully driving or taking an automobile. In McFarland, the prosecution presented evidence that the defendant was in possession of parts of two stolen cars in his garage. When the police suggested that his wife had assisted him in stealing one of the cars, the defendant stated that he could show how one person could have done it. He also claimed that he had obtained the parts of the other car at a junkyard, but did not name the yard. (McFarland, at p. 753.) In O’Dell, evidence was introduced that the defendant, who was seen driving a recently stolen vehicle, fled from the police even though they had not approached him, yelling “ ‘I didn’t steal the truck.’ ” (O’Dell, at p. 1572.) In Green, the defendant was driving a stolen car. When the police detained him, they found a screwdriver but no car keys in his possession. (Green, at pp. 172-173.) The defendant also told police that he had been driving with another man all day who had locked the keys in the car, and defendant broke into the car and started the car with the screwdriver. (Green, at p. 174.) McFarland, O’Dell, and Green reasoned that evidence of the defendants’ recent possession of stolen property coupled with their statements constituted substantial evidence to support their convictions. (McFarland, at p. 758; O’Dell, at p. 1577; Green, at pp. 180-181.) In contrast to these cases, here, appellant was not in possession of the stolen 1989 Toyota Camry, but merely a passenger. (See In re Anthony J. (2004) 117 Cal.App.4th 718, 729.)
B. Probation Conditions
Appellant also contends that the juvenile court erred when it imposed vague and overbroad probations conditions relating to gangs.
1. General Legal Principles
A probation condition that restricts a probationer’s exercise of his or her constitutional rights is permissible if “ ‘ “necessary to serve the dual purpose of rehabilitation and public safety.” ’ ” (People v. Peck (1996) 52 Cal.App.4th 351, 362.) “However, probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant. [Citations.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 704.)
“[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.) Thus, “[t]he 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.).)
“[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.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (Ibid.)
The overbreadth doctrine focuses on other, though related, concerns. Under this doctrine, “ ‘ “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” ’ [Citations.]” (In re Englebrecht (1998) 67 Cal.App.4th 486, 497.) “ ‘A law’s overbreadth represents the failure of draftsmen to focus narrowly on tangible harms sought to be avoided, with the result that in some applications the law burdens activity which does not raise a sufficiently high probability of harm to governmental interests to justify the interference.’ [Citation.]” (Ibid.)
A probationer may raise a constitutional challenge to a probation condition for the first time on appeal when a pure question of law is presented. (Sheena K., supra, 40 Cal.4th at p. 889.) This court reviews such constitutional questions de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)
2. Condition No. 22 - Areas of Gang-Related Activity
Condition No. 22 provides “[t]hat said minor not knowingly participate in any gang activity and/or visit any areas of gang-related activity that are known to him unless he has prior permission from his Probation Officer.”
Condition No. 27 states: “For the purposes of these gang conditions, the words gang and gang-related activity refer to a criminal street gang as defined in Penal Code Section 186.22 subdivisions (e) and (f).”
Appellant argues that this condition violates his constitutional “rights to due process and to travel and associate. (U.S. Const., Amends. I, V, XIV; Cal. Const., art. I, § 7) because it uses the vague and overbroad term ‘areas of gang-related activity.’ ” We agree and modify condition No. 22.
In In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.), the reviewing court recognized that the term “gang-related activity, ” as used in an analogous probation condition, might be problematic. “[E]ven with a knowledge requirement, the gang-related activities condition is impermissibly vague in that it does not provide notice of what areas [the minor] may not frequent or what types of activities he must shun.” (Id., at p. 914.) Victor L. found, however, that the probation condition could withstand constitutional challenge by the addition of language authorizing the probation officer to notify the minor of the gang-related areas he must avoid. (Id., at p. 918.) Victor L. further noted that this delegation of authority was consistent with People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359, which held that “ ‘[t]he court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation.’ [Citation.]” (Victor L., at p. 919.) We agree with the reasoning of Victor L. Accordingly, condition No. 22 must be modified to authorize the probation officer to provide adequate notice to appellant.
We also conclude that condition No. 22 must be modified to replace “areas” with “specific locations” in order to ensure that the probation officer’s role is adequately circumscribed. In People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon), this court held that a similar probation condition was unconstitutionally vague, and modified it to read: “ ‘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.’ ” (Ibid.) This modification prevents the probation officer from designating entire towns or neighborhoods as areas of gang activity.
Thus, we modify condition No. 22 to read: “That said minor not knowingly participate in any gang activity and/or visit any specific location known to him or that the probation officer informs him to be an area of gang-related activity.” In our view, these modifications prevent overbroad enforcement of condition No. 22, thereby protecting appellant’s rights to due process, travel, and association.
Appellant, however, urges this court to “instruct the probation officer to bar appellant from no geographic areas unless the appellant’s history as documented in the court file demonstrates that avoidance of the designated area will serve a rehabilitative purpose.” He asserts that “[t]his instruction will insure that the probation officer does not increase condition 22’s infringement upon V.R.’s Constitutional rights to travel and associate by ordering V.R. to stay away from areas of gang-related activity that were unknown to him prior to the probation officer’s order.”
In general, probation officers are entrusted with determining “both the level and type of supervision consistent with the court-ordered conditions of probation.” (Pen. Code, § 1202.8, subd. (a).) The probation officer plays a particularly broad role in the supervision of a minor. (See, e.g., In re Frank V. (1991) 233 Cal.App.3d 1232, 1242-1243 [probation and the juvenile court act as a parent in the rehabilitation of a minor; pursuant to a probation condition, the probation officer may limit a minor’s association with specified people].) Here, given appellant’s admission that he associated with Norteno gang members, information provided by the probation officer regarding locations that were previously unknown to appellant as gang-related can only serve to rehabilitate him. Accordingly, we conclude that condition No. 22, as modified, serves the compelling state interest of rehabilitation while adequately protecting appellant’s constitutional rights.
3. Condition Nos. 23 and 25 - Gang Paraphernalia and Transmitting Gang Symbols and Information
Appellant also argues that condition Nos. 23 and 25 violate his constitutional rights to due process and freedom of expression.
Both the federal and state Constitutions protect the individual’s freedom of speech and association and certain symbolic and expressive conduct. (U.S. Const., 1st & 14th Amend.; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 772. [recognizing liberty interest in personal dress and appearance].) Thus, a probation condition that limits these rights must be closely tailored to achieve a compelling state interest, which in the present case would be the reform and rehabilitation of the minor. (In re Luis F. (2009) 177 Cal.App.4th 176, 189.)
Condition No. 23 provides “[t]hat said minor not knowingly possess, display, or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures which he knows to be gang-related.”
Appellant contends that condition No. 23 must be stricken. He contends that this condition is vague because it “invites arbitrary and discriminatory application because the apparel preferences of criminal street gangs will define its scope.” Alternatively, he suggests that this court remand “with directions to identify for V.R. any particular item of clothing or insignia included within the order that the court may deem appropriate based upon information contained in the court’s file.” The People argue that the condition should be modified as in Leon to supply appellant with the necessary information.
In Leon, supra, 181 Cal.App.4th 943, this court modified a similar condition to read that the probationer was not to possess, display or wear gang paraphernalia that he knew or the probation officer informed him was gang-related. (Id. at p. 951.) We agree with Leon that the delegation of authority to the probation officer to specify gang indicia, coupled with the knowledge requirement, provides adequate notice to appellant regarding which items of gang paraphernalia or gestures are prohibited. Thus, condition No. 23 should read: “That the minor not knowingly possess, display, or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures which he knows or the probation officer informs him to be gang-related.” In our view, this modification sufficiently tailors the probation condition to the state’s interest in the rehabilitation of juveniles who have been involved in gang activities.
Condition No. 25 provides “[t]hat said minor not knowingly post, display, or transmit any symbols or information that the minor knows to be gang-related.”
This condition targets speech that is ordinarily protected by the First Amendment because it appears to target all forms of interpersonal communication. “Transmit” means “to send or convey from one person or place to another.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 1255 (Webster’s).) All “communication” involves the transmission of information. (Webster’s, at p. 233.) As with condition No. 23, modification of condition No. 25 to delegate authority to the probation officer to specify gang content serves to cure any vagueness. (See Leon, supra, 181 Cal.App.4th at p. 951.) However, the overbreadth of the prohibition remains. Appellant could violate the condition in any number of ways that are unrelated to his rehabilitation, such as discussing his past gang conduct to develop strategies to avoid future gang involvement. Thus, we agree with appellant that condition No. 25 is unconstitutionally overbroad because it infringes on his First Amendment rights and is not closely tailored to his rehabilitation.
Nevertheless, condition No. 25 need not be stricken. The purpose of this condition was to prohibit the types of symbols and photographs with explicit gang content that the police found on appellant’s cell phone when he was arrested. The prohibition of such conduct is indisputably closely tailored to appellant’s rehabilitation. Thus, condition No. 25 may be rendered constitutional by restricting it to gang-related information or symbols that are posted, displayed, or transmitted on or through appellant’s cell phone. Accordingly, we will modify condition No. 25 to read: “That said minor not post, display or transmit on or through his cell phone any symbols or information that the minor knows, or which the probation officer has informed him, to be gang-related.”
4. Condition No. 26 - Court Proceedings
Condition No. 26 provides “[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 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 [p]robation [o]fficer.”
Appellant contends that this condition violates his First Amendment rights of access and to attend court proceedings. He also claims that it violates his right to attend juvenile court hearings in support of a crime victim pursuant to Welfare and Institutions Code section 676.5.
As one reviewing court explained, “[t]he restriction on court attendance is aimed at preventing the gathering of gang members to intimidate witnesses at court proceeding” and is “designed to address the problem of gang affiliation.” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983, fn. 13.) “[T]he state’s ability to afford protection to witnesses whose testimony is crucial to the conduct of criminal proceedings is an absolutely essential element of the criminal justice system.” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1149-1150 & fn. 15.) Thus, a limitation on a minor’s appearance at proceedings that involve a gang member is reasonably related to both rehabilitation by limiting the minor’s gang affiliation and to an important state interest in preventing witness intimidation and protecting the integrity of the justice system.
However, a broad ban on attendance at court proceedings may impinge upon an individual’s constitutional rights. The public has a right of access to criminal and civil trials. (See Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 603 [acknowledging right of access to criminal trials; “this right of access is embodied in the First Amendment, and applied to the States through the Fourteenth Amendment”]; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212 [the constitutional right of access extends to civil trials].) Exercise of the right is essential to freedom of speech and to freedom of the press. (See Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 577-580.)
In Leon, supra, 181 Cal.App.4th 943, this court considered constitutional challenges to a probation condition that prohibited the defendant from “ ‘appear[ing] at any court proceeding unless’ ” he was “ ‘a party, ... a defendant in a criminal action, subpoenaed as a witness, or [attended] with permission of probation’ ” on the grounds that the condition was unconstitutionally overbroad and vague. (Id. at p. 952.) This court noted 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, a 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.) This court concluded that “[w]hile our Supreme Court is ‘keenly aware of the serious nature and magnitude of the problem of witness intimidation’ [citation], the current probation conditions as modified already prevent defendant from associating with gang members and from wearing, possessing, or displaying any criminal street gang paraphernalia.” (Ibid.) The courthouse condition in Leon allowed attendance at court proceedings only if the probationer was a party, defendant, subpoenaed witness, or with the prior permission of probation. (Id. at p. 952.) This court found that the clause allowing for attendance with the probation officer’s permission did not rectify the impermissibly “broad sweep” of the condition. (Id. at p. 953.) This court then limited the ban to those court proceedings “ ‘concern[ing] a member of a criminal street gang’ ” or in which “ ‘a member of a criminal street gang is present’ ” and modified the condition to read: “ ‘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 People v. Perez (2009) 176 Cal.App.4th 380, the reviewing court struck a probation condition that provided: “ ‘The defendant shall not attend any Court hearing or be within 500 feet of any Court in which the defendant is neither a defendant nor under subpoena. The defendant shall inform the probation officer prior to any Court appearance.’ ” (Id. at pp. 383, 386.) The court observed that the condition was neither “limited to protecting specific witnesses or parties” nor “confined to a trial involving gang members”; the condition was “so broad” that it prevented activities that were unrelated to future criminality. (Id. at p. 384.) The court further noted that “[m]any courts are located in government complexes that house a variety of public agencies. These may include a county law library; a public defender’s office; a hall of administration, housing a board of supervisors, a city council, or both; a tax collector; and a health department, to name a few.” (Id. at p. 385.) Thus, under Perez, a condition that bars a minor from coming within a specified distance of a courthouse impinges on the minor’s access to public places and participation in civic activities.
The condition in the present case is narrower than the modified condition we approved in Leon. While the condition in Leon barred the probationer from “ ‘any court proceedings, ’ ” here, the condition applies only to “criminal or juvenile proceedings.” The condition in Leon qualifies “ ‘any court proceedings’ ” to include only those where “ ‘a member of a criminal street gang is present’ ” or those “ ‘concern[ing] a member of a criminal street gang.’ ” Similarly, here, the condition qualifies the proceedings as including those that appellant “knows to be a gang member or... a witness or victim of gang-related activity will be present.” Thus, condition No. 26 is, for the most part, narrowly drawn and tailored to serve the state interest of preventing appellant from becoming further involved in a gang.
However, we are concerned that appellant’s ability to engage in civic functions may be circumscribed by the requirement that he remain at least 25 feet from any courthouse. In our view, restricting access to “criminal or juvenile proceedings, ” as opposed to the “courthouse, ” accomplishes the goal of preventing witness intimidation without infringing on the minor’s right of access. Accordingly, we shall modify the condition by striking the restriction that appellant not come within 25 feet of a courthouse.
Relying on Presley v. Georgia (2010) __ U.S. __ [130 S.Ct. 721] (Presley), appellant argues that this court should strike condition No. 26 because he has never disrupted any court proceedings. In Presley, the trial court barred the defendant’s uncle from the courtroom during voir dire because there was insufficient room for him until after the jury was seated. (Presley, at p. __ [130 S.Ct. at p. 722].) The defendant then challenged his conviction on the ground that he had been denied his Sixth Amendment right to a public trial. (Presley, at p. __ [130 S.Ct. at p. 723].) Though it analyzed the issue under the Sixth Amendment, the court also observed that “the public trial right extends beyond the accused and can be invoked under the First Amendment.” (Ibid., citing Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501.) In reversing the defendant’s conviction, the court acknowledged that “[t]here are no doubt circumstances where a judge could conclude that threats of improper communications with juror or safety concerns are concrete enough to warrant closing voirdire. But in those cases, the particular interest, and threat to that interest, must ‘be articulated along with findings specific enough that a reviewing court can determine whether the closure was properly entered.’ [Citations.]” (Presley, at p. __ [130 S.Ct. at p. 725].) The dicta in Presley does not persuade us that condition No. 26 should be stricken. Though there is nothing in the record indicating that appellant had previously disrupted court proceedings, the issue in the present case is the formulation of probation conditions which will protect appellant’s rights while serving the state’s interests of encouraging his rehabilitation and preventing witness intimidation.
Appellant also asserts that if this court elects to modify the condition, it should include an exception for him to attend juvenile court proceedings as a support person. We disagree.
Welfare and Institutions Code section 676.5, subdivision (a) provides in relevant part: “Notwithstanding any other law..., a victim and up to two support persons of the victim’s choosing shall be entitled to be admitted, on the same basis as he or she may be admitted to trials in a court of criminal jurisdiction, to juvenile court hearings concerning petitions filed pursuant to Section 602 alleging the commission of any criminal offense....” Thus, appellant urges this court to modify the condition to provide “[t]hat said minor not attend any court proceeding where he knows or the probation officer informs him that his presence may contribute to disruption of the court proceedings by a member of a criminal street gang unless he is a party, he is a defendant in a criminal action, he is subpoenaed as a witness, he has been asked to attend pursuant to Welfare and Institutions Code section 676.5 , or he has prior permission of his probation officer.” (Italics added.) Modification of the condition to include this exception, as suggested by appellant, would allow him to attend a juvenile court proceeding involving a fellow gang member, which would violate condition No. 21 prohibiting appellant from “knowingly associat[ing] with any person whom he knows to be a... gang member.” Since the purpose of the gang-related probation conditions is the rehabilitation of appellant by prohibiting him from becoming further involved with criminal street gangs, we reject this modification.
III. Disposition
The order is reversed as to count 2 only. On remand the juvenile court shall modify the probation conditions. Condition No. 22 shall read: “That said minor not knowingly participate in any gang activity and/or visit any specific location known to him or that the probation officer informs him to be an area of gang-related activity.” Condition No. 23 shall read: “That the minor not knowingly possess, display, or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures which he knows or the probation officer informs him to be gang-related.” Condition No. 25 shall read: “That said minor not post, display or transmit on or through his cell phone any symbols or information that the minor knows, or which the probation officer has informed him, to be gang-related.” Condition No. 26 shall read: “That said minor shall not be present at any criminal or juvenile proceedings that involve anyone the minor knows to be a gang member or when 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.”
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.