Opinion
Rehearing Denied Jan. 17, 1992.
Review Granted April 3, 1992.
Previously published at 1 Cal.App.4th 1111, 13 Cal.App.4th 392, 7 Cal.App.4th 1582
Carol A. Sobel, Paul L. Hoffman and Mark D. Rosenbaum, Los Angeles, for plaintiffs and appellants.
James K. Hahn, City Attorney, Maureen Siegel, Asst. City Atty., Ronald A. Dwyer and R. Bruce Coplen, Deputy City Attys., Chase, Rotchford, Drukker & Bogust, and John A. Daly, Los Angeles, for defendants and respondents.
ORTEGA, Associate Justice.
Plaintiffs are taxpayers who claim the enforcement of Penal Code section 272 as amended in 1988 would constitute a waste of public funds (Code Civ.Proc., § 526a) because the amended language is unconstitutionally vague, overbroad, and impinges on the right to privacy. The defendants are Ira Reiner, in his capacity as District The amendment provides that the parents' or guardians' failure to exercise "reasonable care, supervision, and control over their minor child" is a crime if the failure causes or tends to cause or encourage either dependency or delinquency (Welf. & Inst.Code, §§ 300, 601, 602). We find the amendment lacks the necessary specificity to provide either fair notice to parents or a standard of enforcement.
Unless otherwise indicated, all further section references are to the Penal Code.
Code of Civil Procedure section 526a provides in relevant part: "An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein...."
We reverse the summary judgment for the defendants and direct the trial court to enter summary judgment for the plaintiffs.
FACTS & PROCEDURAL BACKGROUND
The Legislature recently enacted Senate Bill No. 1555, 1987-1988 Regular Session (the bill), in an effort to control violent criminal street gang activity. (See § 186.21.) A major portion of the bill consisted of the Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq., the STEP Act) which among other things made the knowing, willful and active participation in a criminal street gang and its criminal activities punishable as either a misdemeanor or a felony. (§ 186.22, subd. (a).) In addition, the STEP Act created new sentencing enhancements for felonies committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).) The STEP Act also declared that every building or place used by members of a criminal street gang for the purpose of committing gang activity or burglary, rape, or any offense involving dangerous or deadly weapons, "is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance." (§ 186.22a, subd. (a).)
Our focus here, however, is upon the bill's amendment of section 272, which prohibits the causing, encouraging, or contributing to the delinquency of a minor. Unlike the STEP Act, section 272 is not specifically targeted at controlling juvenile criminal street gang activity. We quote section 272 in relevant part and delineate the final sentence which was added by the 1988 amendment: "Every person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 18 years to come within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code or which act or omission contributes thereto, ... is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment in a county jail, or may be released on probation for a period not exceeding five years. For purposes of this section, a parent or legal guardian to any person under the age of 18 years shall have the duty to exercise reasonable care, supervision, and control over their [sic] minor child."
In addition to amending section 272, the bill also added chapter 2.9B to the Penal Code, entitled "Parental Diversion" (§ 1001.70 et seq.). Under the parental diversion program, parents or legal guardians who are accused of violating section 272 with respect to their own minor children may seek education, treatment or rehabilitation services and also obtain the eventual dismissal of the section 272 charges upon fulfilling the program's requirements.
The plaintiffs filed their original complaint for injunctive and declaratory relief to halt the enforcement of the amendment to section 272 on July 20, 1989. The complaint's introductory paragraph alleged that the final sentence of section 272 (hereafter the amendment) created a new but vague standard of parental conduct which In their statement of facts, the plaintiffs alleged that this new standard of parental conduct was "recently enforced ... against Ms. Gloria Williams, the mother of a 15 year old boy suspected of being a gang member. Although Ms. Williams was arrested and jailed for an alleged violation of ... [s]ection 272, the defendants subsequently dismissed the charge against her. Defendants' enforcement of this provision against Ms. Williams indicates that [p]laintiffs and parents o[f] minor children are similarly at risk of prosecution."
In their first cause of action, the plaintiffs maintained that the amendment to section 272 is impermissibly vague because it fails to provide fair and adequate notice of the parental conduct which it prohibits, and it also fails to establish a standard for police enforcement and ascertainment of guilt. The plaintiffs asserted the amendment violates both federal and state due process requirements.
In their second cause of action, the plaintiffs claimed the amendment is "overbroad in violation of [their] fundamental liberty interests in directing the rearing of their children and their freedom of association [under both federal and state constitutions]. The vague and general terms, 'reasonable care, supervision, protection, and control,' which delineate the new standard of parental conduct embrace[ ] a wide area of innocent and legal parental conduct."
And in their third cause of action, the plaintiffs asserted the amendment violates their right to privacy under both federal and state constitutions. The plaintiffs alleged the amendment "usurps this fundamental right by dictating ... how [parents and guardians] should rear their children ... [and] therefore violates the fundamental parental right to be free from unwarranted governmental intrusion into private matters of family life."
The defendants successfully demurred to the original complaint on grounds that are not relevant to this appeal. The plaintiffs filed a first amended complaint on December 21, 1989, which restated the allegations described above.
The city attorney then answered the amended complaint and affirmatively alleged that the amendment is not vague, overbroad, or violative of the right to privacy. And with regard to the plaintiffs' allegations concerning the prosecution of Ms. Gloria Williams, the city attorney stated: "The City Attorney denies that Defendant Reiner participated in any way in the prosecution of the recent case of Ms. Gloria Williams. The City Attorney affirmatively alleges that his office solely brought this prosecution. The City Attorney further denies that other parents of minor children are at risk of prosecution. The City Attorney affirmatively alleges that other parents of minor children will be prosecuted only if it appears to his satisfaction, and within his ethical obligations as a prosecutor, that said parent has violated each and every element of the offense established in Penal Code section 272...."
The district attorney's answer to the amended complaint was not included in the parties' joint appendix on appeal.
Thereafter, the parties filed cross-motions for summary judgment. The plaintiffs appeal from the summary judgment entered for the defendants.
THE SUMMARY JUDGMENT MOTIONS
A. The Defendants' Motion
The defendants moved for summary judgment on the grounds that the amendment is not vague, overbroad, or intrusive of the right to privacy as a matter of law. The defendants contended that the amendment satisfies due process requirements by giving fair notice of the conduct which it prohibits since "All of the words used in the amendment ... have a commonly accepted meaning, or their meaning can be ascertained by reference to other sources." The defendants pointed out, for example, that numerous dependency cases have amply The defendants further asserted that the criminal negligence standard of enforcement must be read into the amendment pursuant to section 20, which provides: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence." In addition, the defendants claimed it is proper to borrow from judicial interpretations of other statutes such as the parental tort liability law (see, e.g., Civ.Code, § 1714.1) and incorporate lack of knowledge as a defense to a section 272 charge.
The defendants explained that parents must control their minor children from intentionally harming or creating an unreasonable risk of harm to others, if the parents know or should know that they have the ability to control their children, and know or should know of the necessity and opportunity for exercising such control. (See Weisbart v. Flohr (1968) 260 Cal.App.2d 281, 290-291, 67 Cal.Rptr. 114; Poncher v. Brackett (1966) 246 Cal.App.2d 769, 771-773, 55 Cal.Rptr. 59; Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 317-320, 253 P.2d 675.)
In opposition to the defendants' motion, the plaintiffs asserted that the phrase "reasonable care, supervision, and control," does not have an established meaning. Moreover, the plaintiffs objected to the borrowing of concepts from civil law, dependency law, and tort law to judicially create a standard for criminal liability in the absence of specific standards within the amendment. The plaintiffs also contended that the criminal negligence standard, even if applicable, would still be insufficient to cure the amendment's deficiencies.
B. The Plaintiffs' Motion
The plaintiffs moved for summary judgment on the ground that the amendment is vague on its face as a matter of law, is violative of the right of privacy, and is overbroad. In particular, the plaintiffs contended the defendants were planning to enforce the amendment specifically against parents of gang members even though many of the factors which may lead children to become or to associate with gang members are beyond the parents' control.
1. The Plaintiffs' Evidence
As evidence of the defendants' intent, the plaintiffs cited to defendant Reiner's public comment concerning the amendment, which we quote from the plaintiffs' moving papers: " 'These ... gangs are made up of nothing but just a pack of killers ... Each and every one of them is a sociopathic killer. The Crips and the Bloods are nothing but killers ... Frankly, I think it is very good policy to hold these kinds of parents accountable.' ('Crossfire', May 9, 1989)."
As an example of the amendment's "pernicious reach," the plaintiffs referred to two Los Angeles Times articles concerning the Gloria Williams prosecution. These articles were already contained in the record, having been previously submitted in opposition to the defendants' demurrers to the original complaint.
In their moving papers, the plaintiffs summarized the two newspaper articles as follows: "The pernicious reach of the challenged provision is illustrated by the Gloria Williams case. In that highly publicized case, a single mother was arrested under the challenged provision when police found, inter alia, pictures allegedly showing Ms. Williams with her children using street gang hand signs. Defendants believed that this kind of apparent encouragement of her children's involvement in street gang activity was enough to prosecute Ms. Williams under ... [section] 272, as amended. It is unclear why. There was never any evidence that Ms. Williams condoned or was involved in any way in any criminal activity engaged in by her children. In 2. The Defendants' Opposition
The district attorney joined in the city attorney's opposition to the plaintiffs' motion. The city attorney objected to the plaintiffs' references to the facts of the Gloria Williams case, stating: "While the existence of such a case is not disputed, neither the facts of the case, nor any of the surrounding circumstances are properly before this court. Also, Plaintiffs' Separate Statement of Undisputed Material Facts contains a reference to two Los Angeles Times articles. The City Attorney does not dispute that the articles appeared, but does object to consideration of any of the facts therein as hearsay...." (Fn. omitted.)
The city attorney also submitted legislative history materials concerning the 1988 amendment to section 272. Included among these materials was the post-amendment August 3, 1990, declaration of Teri Burns, the legislative assistant to former state Senator Alan Robbins, one of the bill's principal authors.
a. The Burns Declaration
Ms. Burns declared that the actual language of the bill came from the offices of the defendants herein, namely the Los Angeles City Attorney's Office and the Los Angeles County District Attorney's Office. According to Ms. Burns, certain attorneys from those prosecutorial agencies had explained to her during the legislative process leading to the bill's passage that "section 272, as previously worded, created a misdemeanor if a parent failed to perform a legal duty, where that failure caused or encouraged a minor to violate any law. That duty includes the obligation of exercising reasonable care to control their children. This duty was also explained in the analysis prepared for the Senate Judiciary Committee." When former Senator Robbins amended the bill by adding the parental duty language to section 272, Ms. Burns claims he "intended to incorporate existing law into the actual language of ... section 272 thereby clarifying its application to parents and omissions of their duties and allowing easier use by prosecutors. Combined with the diversion program, it was our intent that a larger number of prosecutions be initiated against parents who were in violation of ... section 272 by omitting their legal responsibilities, yet normally providing education and treatment opportunities for these individuals."
The bill as originally drafted proposed to amend section 272 by prohibiting parents or legal guardians from receiving any proceeds derived from illegal gang activity. When this provision met with opposition, former Senator Robbins replaced the gang proceeds provision with the present language which requires parents and legal guardians to exercise reasonable care, supervision, and control over their minor children. At the same time, former Senator Robbins added the parental diversion program set forth in section 1001.70 et seq.
With respect to the question of whether parental knowledge and the ability to control one's children are elements of the offense made punishable by the amendment, Ms. Burns stated in relevant part: "[Former] b. Legislative History
In addition to Ms. Burns' declaration, the defendants submitted a declaration indicating the results of a legislative history search conducted by a private research firm. Apparently, no transcripts or untranscribed tapes were found concerning legislative hearings or committee discussions regarding the amendment.
The defendants' remaining documents concerning the bill's legislative history also failed to reveal any contemporaneous discussion of the parental responsibility amendment. These documents consisted of (1) draft and final versions of the bill; (2) an April 24, 1987, letter from the Los Angeles City Attorney's Office to former Senator Robbins' office concerning an earlier version of the bill; (3) a July 28, 1987, letter in opposition to the bill sent by the American Civil Liberties Union to the members of the Assembly Public Safety Committee; and (4) a Senate Judiciary Committee document discussing an earlier version of the bill.
c. The City Attorney's Guidelines
The city attorney submitted his office's written guidelines for implementing the parental diversion program (§ 1001.70 et seq.). The April 2, 1990, document entitled "City Attorney Parenting Program Procedures (CAPP)," states that the amendment will only be enforced if the parent's or guardian's conduct demonstrates "aggravated, culpable, gross, or reckless indifference to the delinquency of his/her minor child. A parent will not be deemed to be in violation of this section unless he/she knew or should have known that his/her conduct was likely to result in delinquency and he/she and some ability to control the child."
In the "Referral Guidelines" portion of the document, it is explained that "While no factor will singularly determine whether a case should be accepted, each of the following criteria should be considered in any case presented for hearing or prosecution. [p] 1. A detailed description of the acts or circumstances which brought the juvenile within Sections 300, 601 or 602 of the Welfare and Institutions Code; ... [p] 2. A detailed description of the acts or omissions of duty on the part of the parent which caused or encouraged the juvenile to come within [the] above provisions; [p] 3. The number and type of warnings given to the parent and by whom; [p] 4. Whether any parenting programs have been offered to the parents; [p] 5. The statements and attitude of [the] parents and the juvenile during the investigation; (Every effort should be made to thoroughly interview [the] parents concerning the delinquency problem and their efforts to correct it. Miranda warnings should be given when appropriate.); [p] 6. The parents' present actual ability or inability to supervise and control the offending juvenile ...; [p] 7. The experience and training of officers involved in [the] investigation; [p] 8. Neighborhood complaints or other corroboration of the problem with the juvenile and/or [the] parents. [p] All filing decisions will be made on a case by case basis."
Part II of the document sets forth a three-step processing procedure for possible section 272 violations by parents or guardians. The first step consists of an initial review of the documents transmitted by the referring agency, such as "arrest reports, copies of cite-back interviews, SARB reports and referrals, District Attorney referrals and probation reports." If sufficient documentation supports the referral, the case is then forwarded to the Administrator of the Parenting Program for the scheduling of an office hearing with the parent or guardian.
During the second step, the office hearing, "the parent[s] will be informed regarding the basis of delinquency of their minor The third step consists of prosecuting the parents or guardians who fail to participate in the parenting program and who are found to be "unwilling to control their minor children...."
Part III of the city attorney's guidelines describes the 12 goals of the parenting program: "Each program must teach parents 12 skills: [p] 1. How to establish firm rules--no discretionary rules[.] [p] 2. How to set clear directions with limits[.] [p] 3. How to provide consistent and effective supervision[.] [p] 4. How to provide preventive discipline and contracting[.] [p] 5. How to provide effective follow through[.] [p] 6. How to have no hidden consequences[.] [p] 7. How to set example by word and deed[.] [p] 8. How to provide positive feed back with affection[.] [p] 9. How to build and reinforce selfesteem[.] [p] 10. How to handle conflict resolution[.] [p] 11. How to build good habits[.] [p] 12. How to have communication through positive interaction[.]"
3. Plaintiffs' Reply
In reply, the plaintiffs objected to the portions of Ms. Burns' declaration which were not based on her personal knowledge and which contained inadmissible hearsay. According to the plaintiffs, most of Ms. Burns' declaration was inadmissible and, "[s]horn of its inadmissible matter, the declaration merely recites the amending of Senate Bill 1555 as it passed through the legislative process." In addition, the plaintiffs objected to the other legislative history materials which were submitted by the defendants. According to the plaintiffs, the materials failed to shed light on whether the Legislature intended to incorporate a criminal negligence standard in section 272.
C. The Trial Court's Ruling
With respect to the evidentiary objections, the trial court's minute order states in relevant part: "The court need not make a detailed formal ruling for the record regarding the evidentiary objections; it has considered only relevant and competent evidence in the face of evidentiary objections, and evidence to which there was no objection. [Citations.]"
With respect to the vagueness challenge to the amendment, the trial court stated in part: "The effect of the underlined portion is to make it clear that the duties referred to--articulated in language familiar and widely used in the law--are duties of the types involved in the earlier portions of [section] 272. [p] ... The [amendment] gives parents and legal guardians fair notice of what they must do to avoid criminal prosecution, and simply makes explicit a duty which society has long understood to be incumbent upon parents and legal guardians and which has been elaborated upon by an abundance of statutory authority and case law...."
The trial court concluded that the amendment "is not unconstitutionally vague or overbroad, and plaintiffs do not have standing to assert any alleged defect in said statute."
ISSUES ON APPEAL
Plaintiffs contend (I) they have standing to sue; and (II) the amendment is unconstitutionally vague and (III) overbroad.
DISCUSSION
I
The defendants do not dispute on appeal that the plaintiffs have standing to II
We conclude, for the following reasons, that the amendment is unconstitutionally vague.
A. Section 272 Prior to the Amendment
Following a lengthy study and report by "The Special Study Commission on Juvenile Justice," the Legislature revised the Welfare and Institutions Code in 1961. (See 10 Witkin, Summary of Cal. Law (9th ed. 1989) Parent and Child, §§ 450-453, pp. 494-496.) Among other things, the revised law created the new classification of the dependent child and removed former section 702 from the Welfare and Institutions Code, which prohibited acts and omissions which caused or tended to cause the delinquency of a minor. (See 2 Witkin & Epstein, Cal.Crim. Law (2d ed. 1988) Crimes Against Decency and Morals, § 836, pp. 951-953; 10 Witkin, Summary of Cal. Law, supra, Parent and Child, § 453, p. 496.) Section 272 is essentially a restatement of former Welfare and Institutions Code section 702.
Prior to the 1988 amendment, section 272 made punishable as a misdemeanor the commission by any person of any act or the omission by any person of any duty which caused or had a tendency to cause or encourage any minor to come within the provisions of Welfare and Institutions Code sections 300, 601, or 602.
Under Welfare and Institutions Code section 300, a minor may be adjudged a dependent child of the juvenile court if the minor has suffered, or there is a substantial risk that the minor will suffer, among other things: (a) serious physical harm inflicted nonaccidentally by the parent or guardian (Welf. & Inst.Code, § 300, subd. (a)); (b) serious physical harm or illness as a result of the parent's or guardian's failure or inability to adequately supervise or protect the minor, or to provide the minor with adequate food, clothing, shelter, or medical treatment, or to provide regular care for the minor due to the parent's or guardian's mental illness, developmental disability, or substance abuse (Welf. & Inst.Code, § 300, subd. (b)); (c) serious emotional damage (Welf. & Inst.Code, § 300, subd. (c)); or (d) sexual abuse (Welf. & Inst.Code, § 300, subd. (d)).
The first issue we consider is whether, prior to the amendment, section 272 was found to require criminal intent or criminal negligence. The statute is silent on this point. However, two other Penal Code provisions seem to be relevant to this inquiry. Section 20 provides that "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence." And section 26 provides in pertinent part that one is not capable of committing a crime "who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent."
The defendants claim that implicit in section 272's phrase "omits the performance of any duty" is section 20's requirement that "there must exist a union, or joint operation of act and intent, or criminal negligence." We agree. We note the similar phrase "any neglect of duty" which appeared in former section 361 (repealed by Stats. 1987, ch. 828, § 23.5) was found to have "an accepted legal meaning. It means an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty. [Citations.]"
Defendants also assert that implicit in the term "omits the performance of any duty" is section 26's provision that ignorance or mistake of fact which disproves any criminal intent is a defense. For example, in People v. Atchison (1978) 22 Cal.3d 181, 182, 148 Cal.Rptr. 881, 583 P.2d 735, the California Supreme Court reversed the defendant's misdemeanor convictions for "(1) annoying or molesting a child under age 18 ( ... § 647a), and (2) contributing to the delinquency of a child under age 18 (§ 272)." In Atchison, the defendant testified that the minor had appeared to be at least 19 years old, and had claimed to be two months short of his 19th birthday. (People v. Atchison, supra, 22 Cal.3d at p. 182, 148 Cal.Rptr. 881, 583 P.2d 735.) Despite this evidence, the judge instructed the jury that it was immaterial whether or not the defendant knew the age of the minor. The supreme court reversed the convictions, citing People v. Hernandez (1964) 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673. (People v. Atchison, supra, 22 Cal.3d at p. 183, 148 Cal.Rptr. 881, 583 P.2d 735.) Hernandez dealt with a statutory rape charge involving a minor who was three months short of age 18. Citing sections 20 and 26, the Hernandez court held that evidence of the defendant's reasonable mistake concerning the minor's age could be used to disprove he harbored any criminal intent. (People v. Hernandez, supra, 61 Cal.2d at pp. 535-536, 39 Cal.Rptr. 361, 393 P.2d 673; cf. People v. Williams (1991) 233 Cal.App.3d 407, 410-412, 284 Cal.Rptr. 454 (ignorance or mistake of fact defense unavailable when its application would violate strong public policy, i.e., selling cocaine to a minor occurs even if seller has reasonable and good faith belief minor was 18 years old.))
With this background in mind, we turn to the 1988 amendment to section 272.
B. The Amendment to Section 272 is Unconstitutionally Vague
As a result of the 1988 amendment, the last sentence of section 272 now imposes a legal duty upon parents and legal guardians (hereafter jointly referred to as parents) to exercise reasonable care, supervision, and control over their minor children. The amendment, when read in conjunction with the rest of the section, provides in relevant part that the parents' failure to exercise reasonable care, supervision, and control over their minor child is a crime if their failure causes or tends to cause or encourage the child to come within the provisions of Welfare and Institutions Code sections 300, 601 and 602.
The issues we must decide are whether the amendment is unconstitutionally uncertain, Preliminarily, we note that our discussion of the amendment is limited to the context of delinquent behavior as described in Welfare and Institutions Code sections 601 and 602. We do not discuss, and the parties do not dispute, that parents and guardians have an ascertainable duty to provide their children with food, clothing, shelter, and medical care to avoid the risk of harms enumerated in Welfare and Institutions Code section 300. Accordingly, we distinguish the dependency cases relied upon by defendants in which terms similar to "reasonable care, supervision and control" were upheld as judicially construed. (See In re Anne P. (1988) 199 Cal.App.3d 183, 200, 244 Cal.Rptr. 490 [discussing Welfare & Institutions Code section 300, subdivision (a) ]; In re J.T. (1974) 40 Cal.App.3d 633, 638, 115 Cal.Rptr. 553 [discussing former Welfare & Institutions Code section 600, subdivision (a) ]; Marr v. Superior Court (1952) 114 Cal.App.2d 527, 530, 250 P.2d 739 [discussing former Welfare & Institions Code section 700].) The dependency cases are distinguishable because they involve a much closer nexus between the parents' failure to provide the basic necessities of life and their child's risk of suffering physical deprivations and injuries. In dependency cases, the welfare of the child, and not the criminality of the parent, is the paramount concern. (See In re Corrigan (1955) 134 Cal.App.2d 751, 754, 286 P.2d 32.) Also, the child's physical, mental, and emotional condition provides an objective marker by which to gauge the parents' culpability. But in section 272 cases, the child's delinquent behavior is not always an accurate measure of the parents' culpability. The dependency cases do not explain what standard of care, supervision and control is required of parents under the amendment to section 272.
Former Welfare & Institutions Code section 600, subdivision (a) was a dependency statute that applied to any minor " 'Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.' " (In re J.T., supra, 40 Cal.App.3d at p. 636, 115 Cal.Rptr. 553.) Former Welfare & Institutions Code section 700, subdivision (b) was an earlier version of former section 600. (Marr v. Superior Court, supra, 114 Cal.App.2d at pp. 530-532, 250 P.2d 739.)
Because this case involves a purely facial challenge based on the amendment's lack of specificity, our discussion will not focus on any specific factual setting including the Gloria Williams case. We are not persuaded by the decisions cited by the defendants in which statutes similar to section 272 were found to be constitutional in the context of the specific facts of each case (see, e.g., People v. Deibert (1953) 117 Cal.App.2d 410, 417-420, 256 P.2d 355; People v. De Leon (1917) 35 Cal.App. 467, 471-473, 170 P. 173).
The interpretation of a statute is a question of law. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.) The settled presumption is that a material change in statutory language demonstrates the Legislature intended to change the law, not interpret it (McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal.3d 527, 533-534, fn. 5, 105 Cal.Rptr. 330, 503 P.2d 1338; Twin Lock, Inc. v. Superior Court (1959) 52 Cal.2d 754, 761, 344 P.2d 788).
The legislative history supplied by the defendants does not refute this presumption. Although subsequent legislative statements may be considered by the court as nonbinding evidence (California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 213-214, 187 P.2d 702), we refuse to rely upon the declaration of Teri Burns, the aide to former Senator Robbins, because it provides no assurance that the legislators who voted for the bill shared her, and her employer's alleged, view of its meaning (California Teachers Assn. v. San Diego Community College District, supra, 28 Cal.3d at pp. 698-701, 170 Cal.Rptr. 817, 621 P.2d 856).
We find that the amendment constitutes a material change in statutory language. The amendment goes beyond criminalizing The amendment is impermissibly vague, however, because it criminalizes the parents' failure to exercise reasonable care, supervision, and control over their child without establishing a standard for determining what constitutes reasonable care, supervision, and control. The amendment leaves much room for abuse and mischief in its enforcement because any law enforcement agency is free to decide, based on purely subjective factors, whether the parents exercised reasonable control and supervision over their child.
For example, suppose some parents in Los Angeles regularly permitted their minor children to play outdoors without adult supervision in a housing project where it was commonly known that criminal street gang members were openly selling narcotics. Based on this evidence alone, a law enforcement officer might conclude that the children were at risk of being exposed to delinquent behavior and charge the parents with violation of the amendment. But in the absence of a common standard for objectively evaluating the parents' conduct, while the officer might believe there was sufficient evidence to support the charge, another officer might believe otherwise.
The defendants point out that parents who were intentionally and criminally negligent in supervising their children should have known by their morally reprehensible behavior "that [their] continued wrongful acts might, in the individual judgment of the jurors, be deemed unlawful, a result which [they] can readily avoid by righteous living." (People v. Daniel (1959) 168 Cal.App.2d Supp. 788, 798, 337 P.2d 247.) The defendants failed to mention, however, that the Daniel case was later disapproved by the California Supreme Court. (In re Newbern (1960) 53 Cal.2d 786, 797, 3 Cal.Rptr. 364, 350 P.2d 116.) In Newbern, the California Supreme Court considered the same statute which was upheld in Daniel, and voided it for being impermissibly vague. The Newbern court also stated that the statute, which punished "common drunk[s]," was incapable of uniform enforcement because "a person drunk, for example, once a week for four months could be found guilty of a violation of [the statute] in one jurisdiction but not in another." (Id. at p. 797, 3 Cal.Rptr. 364, 350 P.2d 116.)
Similarly here, the amendment fails to provide fair notice to the parents that their behavior may be deemed criminal, and fails to provide an objective standard of enforcement. The amendment creates the hazard that some law enforcement agency might seek to criminalize parental behavior in one neighborhood, but not in another, based on purely subjective standards.
We are not persuaded by the defendants' assertion that the amendment is not vague because the ordinary negligence standard has been applied in other contexts such as vehicular manslaughter (§ 192, subds. (c)(2), (c)(3)). Whereas objective rules of driving are regularly taught in public and private schools, there is no universal guide for teaching parents how to prevent delinquent behavior.
Contrary to the defendants, we do not believe the amendment can be reasonably compared to drunk driving statutes. Defendants' reliance on Burg v. Municipal Court (1983) 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732, which involved the constitutionality of a drunk driving statute, is misplaced. Intoxication, unlike the duty to supervise minors to prevent delinquency, is capable of being measured by objective standards. Accordingly, standards of negligence and criminal negligence can be meaningfully applied to drunk driving statutes. But as we will discuss in section C, infra, the vague phrase, "reasonable care, supervision and control," is not made clearer by applying a criminal negligence standard. " '[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[,] violates the first essential of due process of law.' (Connally v. General Const. Co. [ (1926) ] 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322]....) A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it. [Citations.]" (People v. McCaughan, supra, 49 Cal.2d at p. 414, 317 P.2d 974.)
The amendment is no less vague than the statute which was voided in Coates v. City of Cincinnati (1971) 402 U.S. 611, 614-616, 91 S.Ct. 1686, 1688-1689, 29 L.Ed.2d 214. In that case, the court struck down a penal statutethat prohibited conduct which was annoying to passers by. The court concluded that what annoys some people may not annoy others, thus the defendant would have to guess at what the standard of conduct means. Similarly, in Kolender v. Lawson (1983) 461 U.S. 352, 353-354, 357-361, 103 S.Ct. 1855, 1856, 1858-1860, 75 L.Ed.2d 903, the court struck down an identification statute since the statute did not define what was authentic identification.
Although a lesser standard of review to determine vagueness is applied in economic and business regulation cases (Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 498-499, 102 S.Ct. 1186, 1193-1194, 71 L.Ed.2d 362), a more stringent test applies when the law threatens to inhibit the exercise of constitutionally protected rights or imposes criminal penalties (ibid.).
Parental rights are fundamentally protected rights. They include " 'the right to direct [the child's] activities and make decisions regarding [the child's] care and control, education, health, and religion.' [Citation.] The United States Supreme Court has termed this constellation of parental interests 'essential' (Meyer[ ] v. Nebraska (1923) 262 U.S. 390, 399 [43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045, 29 A.L.R. 1446] ), among the 'basic civil rights of man' (Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660] ), and '[r]ights far more precious ... than property rights' (May v. Anderson (1953) 345 U.S. 528, 533 [73 S.Ct. 840, 843, 97 L.Ed. 1221, 1226] )." (Walker v. Superior Court, supra, 47 Cal.3d at p. 134, 253 Cal.Rptr. 1, 763 P.2d 852; see Bd. of Dirs. of Rotary Int'l v. Rotary Club (1987) 481 U.S. 537, 545-546, 107 S.Ct. 1940, 1945-1946, 95 L.Ed.2d 474; Roberts v. United States Jaycees (1984) 468 U.S. 609, 617-620, 104 S.Ct. 3244, 3249-3251, 82 L.Ed.2d 462; Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 65-66, 93 S.Ct. 2628, 2639-2640, 37 L.Ed.2d 446; Wisconsin v. Yoder (1972) 406 U.S. 205, 229-234, 92 S.Ct. 1526, 1540-1542, 32 L.Ed.2d 15; Pierce v. Society of Sisters (1925) 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070; Meyer v. Nebraska (1923) 262 U.S. 390, 399-400, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042; City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 128-130, 164 Cal.Rptr. 539, 610 P.2d 436 (right of privacy unconstitutionally abridged by ordinance prohibiting unrelated people from living together in area zoned for families).)
We believe the Legislature must give careful consideration to penal statutes which affect the fundamental and sensitive area of the family. (See Note, "Constitutional Limitations on State Power to Hold Parents Criminally Liable for the Delinquent Acts of Their Children" (1991) 44 Vanderbilt L.Rev. 441, 459-472.) "The unique role in our society of the family, the institution by which 'we inculcate and pass down many of our most cherished values, moral and cultural,' [citation] requires that constitutional principles be applied with sensitivity and flexibility to the special needs of parents and children." (Bellotti v. Baird (1979) 443 U.S. 622, 634, 99 S.Ct. 3035, 3043, 61 L.Ed.2d 797 (lead opn. of Powell, J.).)
The legislative branch, with its ability to hold fact-finding hearings and to debate issues, is better equipped than the judicial branch to establish parental standards of conduct. This undoubtedly is one of the most sensitive areas of governmental regulation. C. We May Not Create A Standard of Enforcement
With this standard in mind, we next consider whether it is possible to ascertain the amendment's proper meaning and application by objective standards. Although a statute does not meet constitutional standards of specificity, a court may not hold the amendment " 'void for uncertainty if any reasonable and practical construction can be given its language.' [Citation.] If by fair and reasonable interpretation we can construe [the amendment] to sustain its validity, we must adopt such interpretation [citations]...." (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253, 158 Cal.Rptr. 330, 599 P.2d 636.)
"A statute will be upheld if its terms may be made reasonably certain by reference to the common law [citations] or to its legislative history or purpose. [Citations.] A statute will likewise be upheld, despite the fact that the acts it prohibits are defined in vague terms, if it requires an adequately defined specific intent. [Citation.] A court, however, may not create a standard [citations], and a specific intent defined in the same vague terms as those defining the prohibited acts does not make a statute acceptably definite." (People v. McCaughan, supra, 49 Cal.2d at p. 414, 317 P.2d 974.)
The defendants properly point out that "statutes are not automatically invalidated as impermissibly vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. [Citation.]" (Findley v. Justice Court (1976) 62 Cal.App.3d 566, 570, 133 Cal.Rptr. 241.) The defendants also correctly assert that the courts are required to interpret and apply statutes according to the Legislature's intent. (People v. Daniels (1969) 71 Cal.2d 1119, 1127-1128, 80 Cal.Rptr. 897, 459 P.2d 225).
But we are not being called upon to interpret a drunk driving or kidnapping statute. The amendment pertains to the highly sensitive and protected areas of family privacy and parental control. In Findley v. Justice Court, supra, 62 Cal.App.3d 566, 133 Cal.Rptr. 241, the court faced the wholly distinguishable question of whether a Vehicle Code section which prohibited the throwing of any substance at any vehicle or any occupant was impermissibly vague. The Findley court held it was not, stating in relevant part: "Accordingly, as we interpret the law, it merely bars the throwing of any substance at a vehicle while it is moving along or is parked on a highway or a street, which could distract the driver, or result in his injury or in an injury to any occupant, or do some mischief to the vehicle itself. In other words, the paramount purpose of the statute in question is in furtherance of the rights of citizens to use the state's highways in safety without obstruction or interruption, and hence, it is a reasonable regulation in an area in which the state has broad and flexible power; the fact that it incidentally prohibits traditionally innocent While the state has regularly exercised its broad and flexible powers to regulate public use of the highways, it has not traditionally exercised its powers to dictate the amount and type of supervision which parents must provide their children in order to prevent their exposure to delinquent behavior.
People v. Daniels, supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, also fails to support the defendants' position. In Daniels, the question was whether the aggravated kidnapping statute (§ 209) was impermissibly vague because it failed to set forth a specific linear standard to determine when an aggravated kidnapping allegation was supported. Distance, however, is irrelevant to the actual kidnapping offense and criminalizing kidnapping does not implicate a defendant's fundamentally protected rights and does not generally infringe on First Amendment speech and association rights. Parenting, however, is a fundamentally protected right.
The various aids for determining the Legislature's intent fail to cure the amendment's impermissible lack of specificity. To our knowledge, there is no common law standard for supervising children to prevent delinquency. On the contrary, the common law required a much closer causal nexus between the parent's behavior and the child's behavior than does the amendment. "Traditionally, under the common law, the mere fact of a parent-child relationship was not a basis for vicarious liability. [Citation.] At common law, parental liability for a child's tort was imposed only when there was an agency relationship [citation] or when the parent was himself or herself guilty in some way in the commission of the crime [citation]." (Cynthia M. v. Rodney E. (1991) 228 Cal.App.3d 1040, 1042, 279 Cal.Rptr. 94.)
As we previously noted, although section 272 lacks a specific intent or criminal negligence requirement, we may infer those requirements pursuant to section 20. But even then, the amendment would not be cured of its vagueness. Although a statute will be upheld against a vagueness claim if it requires an adequately defined specific intent, "[a] court, however, may not create a standard [citations], and a specific intent defined in the same vague terms as those defining the prohibited acts does not make a statute acceptably definite." (People v. McCaughan, supra, 49 Cal.2d at p. 414, 317 P.2d 974.) Since we are unable to adequately define a common standard of parental conduct with respect to preventing juvenile delinquency or exposure to juvenile delinquency, a specific intent defined in the same vague term used in the amendment of "reasonable care, supervision and control," does not make the statute acceptably definite.
Similarly, neither would a criminal negligence standard cure the amendment's deficiency. According to the defendants, the criminal negligence standard adequately meets due process notice requirements, and thus the difficulty of setting more exact parenting standards should not preclude the Legislature from prohibiting criminal conduct. The defendants contend that while it was possible to draft a more precise vagrancy statute in Kolender v. Lawson, supra, 461 U.S. at p. 361, 103 S.Ct. at p. 1860, it is impossible to draft a more precise rule of parental responsibility to prevent delinquent behavior. The defendants assert the courts must consider the vagueness question in the context of the subject matter. (See People v. Beaugez (1965) 232 Cal.App.2d 650, 657-658, 43 Cal.Rptr. 28.) The defendants object to the use of tortured reasoning and imaginative hypothesizing to strike down the amendment when it may be made clear by common sense interpretation.
In support of this position, the defendants rely on Nash v. United States (1913) 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232, in which thecourt noted that in deciding whether a killing was murder, manslaughter, or accidental, the jury must estimate the degree of culpability "by common experience in the circumstances known to the actor." Defendants also rely on the fact that section 270, which requires parents to provide the necessary food, But even a criminal negligence standard would not provide an objective standard of behavior under the amendment. Whether parents, by their lack of supervision and control, cause or tend to cause delinquent behavior in their children is a perplexing question. This question lacks the focus of a murder case where the defendant's own culpability for the killing can be directly assessed against him, or of a section 270 case where the parents' own culpability for failing to feed, clothe, shelter and provide medical care for their children can be directly assessed against them.
In the context of section 272, the parents' intentional failure to properly supervise their child is a step removed from their child's own willful delinquent behavior. Undoubtedly, in some section 272 cases this causal link is self evident, such as when the parents play a direct role in causing or encouraging the child's delinquent behavior. But if the parents do nothing to directly encourage the delinquent behavior, it would be virtually impossible to fairly determine whether a causal link actually exists in the absence of an articulable standard. Parenting, by its very nature, is a highly individualized responsibility which cannot fairly be judged as criminally negligent without considering many diverse factors. Similarly, the delinquent behavior of children may or may not be linked to their parents' styles and patterns of care, supervision and control. The record in this case is silent on whether punishing parents for failing to control their children will effectively reduce or prevent juvenile delinquency.
Unlike the cases cited by the defendants (Wainwright v. Stone (1973) 414 U.S. 21, 22-23, 94 S.Ct. 190, 192-193, 38 L.Ed.2d 179 (sodomy statute upheld against vagueness claim); People v. Nguyen (1984) 161 Cal.App.3d 687, 691-694, 207 Cal.Rptr. 870 (definition of gill net fishing upheld against vagueness claim); People v. Cramblit (1978) 84 Cal.App.3d 437, 445, 148 Cal.Rptr. 440 (technical term in statute upheld against vagueness claim); People v. Smith (1953) 117 Cal.App.2d 698, 699-700, 256 P.2d 586 (sodomy statute upheld against vagueness claim)), this case involves the unique and controversial question of what type and degree of parental supervision and control will prevent juvenile delinquency. Parenting in itself is a controversial topic apart from any considerations of delinquency. Even the most dedicated, intelligent, and responsible parents may disagree on how to raise a child, and may spawn, in spite of themselves, a delinquent child.
The defendants rely on California's parental tort liability doctrine (Weisbart v. Flohr, supra, 260 Cal.App.2d at pp. 290-291, 67 Cal.Rptr. 114; Poncher v. Brackett, supra, 246 Cal.App.2d at pp. 771-773, 55 Cal.Rptr. 59; Ellis v. D'Angelo, supra, 116 Cal.App.2d at pp. 317-320, 253 P.2d 675; Civ.Code, §§ 1714.1, 1714.3) to supply the missing standard of parental supervision and control to section 272. Under the judicially adopted rule in this state, parents may incur civil damages for their minor child's intentional torts if they knew or had reason to know of their ability to control the minor, and knew or should have known of the necessity and opportunity for exercising such control. This doctrine is an exception to the general common law rule that there is no vicarious liability on the parent for the child's tort. In California, liability will attach when the parents' negligence made it possible and probable for the child to cause the injury. (Singer v. Marx (1956) 144 Cal.App.2d 637, 645, 301 P.2d 440.)
The city attorney's Parenting Program Procedures described earlier in this opinion were apparently based on the parental tort liability doctrine. The defendants claim they will not enforce the statute against parents who lacked the ability to control their child and who were unaware of their child's delinquent behavior. The city attorney's self-imposed limitation on enforcement is not, in our view, sufficient to provide the requisite minimal guidelines for its enforcement. (Cf. Grayned v. City of Rockford (1972) 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (In reviewing state statutes, federal courts may refer "to some degree, to the interpretation of the statute given by those charged with enforcing it.").) While the amendment may undoubtedly be constitutionally applied to many specific instances of gross parental neglect, that is not sufficient to cure the amendment's defect, which is so invasive of a basic freedom. "If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. [Citations.] It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. [Citations.]" (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888; see Kolender v. Lawson, supra, 461 U.S. at pp. 357-361, 103 S.Ct. at pp. 1858-1860; Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 162-171, 92 S.Ct. 839, 843-848, 31 L.Ed.2d 110.)
Moreover, the city attorney's reliance upon the standard of the parental tort liability doctrine is not based upon any express Legislative intent concerning section 272. Although the Legislature codified the parental tort liability doctrine, the defendants do not contend, nor have they presented any evidence to show, that the Legislature enacted Civil Code sections 1714.1 and 1714.3 for any purpose other than to shift the economic damages from the innocent victim to the negligent parents. The record contains no evidence to support a finding that the Legislature intended or even considered whether it should apply the civil tort liability standard to section 272. We decline to judicially criminalize a civil statute by applying the parental tort liability standard to section 272. Section 272 makes no reference to the civil laws and evinces no intent to import such a standard into a criminal statute. (SeeUnited States v. Laub (1967) 385 U.S. 475, 486-487, 87 S.Ct. 574, 580-581, 17 L.Ed.2d 526; Keeler v. Superior Court (1970) 2 Cal.3d 619, 632, 87 Cal.Rptr. 481, 470 P.2d 617; People v. Armitage (1987) 194 Cal.App.3d 405, 415, 239 Cal.Rptr. 515.)
We conclude that the amendment to section 272 is impermissibly vague and incapable of being uniformly enforced or applied by law enforcement agencies and courts.
III
In view of our holding, we do not reach the plaintiffs' remaining contention that the amendment is unconstitutionally overbroad.
DISPOSITION
We reverse the judgment and remand the matter to the trial court, which is ordered to enter summary judgment for the plaintiffs. The plaintiffs are entitled to recover their costs on appeal.
SPENCER, P.J., and VOGEL, J., concur.
Welfare and Institutions Code section 601 provides that a minor may be determined to be a ward of the juvenile court if he persistently or habitually disobeys his parents or guardians, if he is beyond the control of his parents or guardians, if he violates curfew ordinances, or if he is a habitual truant.
Welfare and Institutions Code section 602 provides that any minor who violates any state or federal law or any local criminal ordinance other than a curfew based solely on age is within the jurisdiction of the juvenile court and may
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be determined to be a ward of the court.We do not find Walker's analysis helpful or dispositive in this case because unlike sections 273a and 368, section 272 does not mention any scienter requirement.