In re A.P. CA4/2

• Court: California Court of Appeal
• Decided: August 18, 2015
• Docket: E062579
• Status: Unpublished

Opinion

Filed 8/18/15 In re A.P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.P., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E062579 Plaintiff and Respondent, (Super.Ct.No. J257475) v. OPINION A.P.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed as modified.

Kevin Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

1 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kristen

Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant and defendant A.P. (minor) admitted as true the allegations that he

committed the crime of vandalism with damage under $400 (Pen. Code, § 594,

subd. (b)(2)(A), count 1)1 and battery (§§ 242/243, subd. (a), count 3).2 The juvenile

court declared minor a ward of the court and placed him in the custody of his mother on

probation under certain terms and conditions. On appeal, minor contends that one of the

probation conditions imposed must be stricken or modified. The People concede, and we

agree, that the probation condition should be modified. Otherwise, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Vandalism (Count 1)

On November 16, 2014, sheriff deputies responded to a call at Bear Gulch Park,

concerning several people loitering in the parking lot and smoking narcotics. Minor

began running when the deputies tried to contact him. A foot pursuit ensued, and he was

apprehended. Deputies located new tagging with the initials “SR” and the moniker

1 All further statutory references will be to the Penal Code, unless otherwise noted.

2Minor was also charged with resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) in count 2, another count of vandalism (Pen. Code, § 594, subd. (b)(2)(A)) in count 4, and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)) in count 5. However, the juvenile court dismissed those counts, pursuant to a motion by the People.

2 “Smokey” spray painted on the water fountain, playground, and inside the women’s

restroom. The graffiti was identical to the graffiti found in another case one week prior.

One of the deputies knew that minor’s moniker was “Smokey”; minor’s mother had

previously allowed access to her residence for the police to retrieve a notebook

displaying minor’s tagging and moniker. Minor was handcuffed and read his Miranda3

rights. Minor then told the deputies he was a member of the tagging crew called SR,

which stood for Stay Ready or Slightly Ruthless. Minor said he went by the name

“Smokey.” He estimated that the SR crew tagged various locations in the park about

once a week. He said he did not know why he tagged, and he knew it was illegal.

Battery (Count 3)

On October 10, 2014, minor and his mother (mother) got into a verbal argument

about his truancy from school. Mother searched minor’s backpack and found marijuana

and pipes inside. Minor attempted to grab the backpack and a struggle ensued. Minor

pushed mother into a wall, pulled her to the ground, punched her hands, and elbowed her

until she released the backpack.

Mother later told a probation officer that she felt that minor was “hanging around

with the wrong kids,” and she felt like she had no control over him.

3 Miranda v. Arizona (1966) 384 U.S. 486.

3 Procedural Background

Minor admitted the allegations in counts 1 and 3. The juvenile court declared him

a ward and then imposed specific conditions of probation. One of the terms required that

minor: “Not be present in any area, which he/she knows to be a gang gathering area. For

the purpose of this paragraph, the word ‘gang’ means a ‘criminal street gang’ as defined

in Penal Code Section 186.22[, subdivision] (e)(f).” Defense counsel objected to the term

as being unconstitutionally vague and argued that there needed to be “more specific

information about which gang and their areas of location.” The court overruled the

objection and modified the term to add “or any tagging crew or party crew.” Thus, the

modified condition (No. 22) read as follows: “Not be present in any area, which he/she

knows to be a gang gathering area. For the purpose of this paragraph, the word ‘gang’

means a ‘criminal street gang’ as defined in Penal Code Section 186.22[, subdivision]

(e)(f) or any tagging crew or party crew.”

ANALYSIS

Probation Condition No. 22 Should Be Modified

Minor states that probation condition No. 22 was fine in its original form, but

contends that the addition of the terms “tagging crew” and “party crew” made it

unconstitutionally vague and overbroad, in violation of his First, Fifth, and Fourteenth

Amendment rights. He specifically argues that the condition is vague because the

undefined terms of “tagging crew” and “party crew” do not give clear guidance as to

what locations he must avoid. Minor further contends the condition is overbroad, since

4 there was no evidence that his offenses had anything to do with a “party crew.” The

People concede, and we agree, that the term “party crew” should be stricken from the

probation condition. Otherwise, we uphold the condition.

A. Relevant Law

“A juvenile court is vested with broad discretion to select appropriate probation

conditions. [Citation.] The court 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.] A condition of probation that is impermissible for an

adult probationer is not necessarily unreasonable for a minor. [Citation.] Juveniles are

deemed to be more in need of guidance and supervision than adults, and their

constitutional rights are more circumscribed. [Citation.] Further, when the state asserts

jurisdiction over a minor, it stands in the shoes of the parents. A parent may curtail a

child’s exercise of constitutional rights because a parent’s own constitutionally protected

‘“‘liberty’”’ includes the right to ‘“‘bring up children’”’ and to ‘“‘direct the upbringing

and education of children.”’” [Citation.] Thus, the juvenile court may impose probation

conditions that infringe on constitutional rights if the conditions are tailored to meet the

needs of the minor. [Citation.]” (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033-

1034.)

“Prohibitions against a variety of gang-related activities have been upheld when

imposed upon juvenile offenders. [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th

615, 624.) “[P]robation terms have been approved which bar minors from being present

5 at gang gathering areas, associating with gang members, and wearing gang clothing.

[Citation.]” (Ibid.) “Because ‘[a]ssociation with gang members is the first step to

involvement in gang activity,’ such conditions have been found to be ‘reasonably

designed to prevent future criminal behavior.’ [Citation.]” (Ibid.)

B. The Phrase “Tagging Crew” is Sufficiently Precise for Minor to Know What is

Required of Him

Minor argues that the term “tagging crew” does not provide him with adequate

notice as to what areas he must avoid in order to comply with his probation terms and, as

such, is unconstitutionally vague. He specifically asserts that there was no definition of

what constituted a “tagging crew.” We uphold that portion of term No. 22.

“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.” (In re Sheena K.

(2007) 40 Cal.4th 875, 890.) “A condition is sufficiently precise if its terms have a ‘plain

commonsense meaning, which is well settled. . . .’” (In re R.P. (2009) 176 Cal.App.4th

562, 566.)

Condition No. 22 prohibited minor from being present in any area he knew to be a

gang gathering area, and it stated that, “[F]or the purpose of this paragraph, the word

‘gang’ means a ‘criminal street gang’ as defined in Penal Code Section 186.22[,

subdivision] (e)(f) or any tagging crew or party crew.” A criminal street gang is defined

as an ongoing association or group of three or more people with a common name or

6 common identifying symbol, that has as one of its primary activities the commission of

crimes, such as felony vandalism (§ 594, subd. (b)(1)), and whose members engage in a

pattern of criminal gang activity (§ 186.22, subds. (e)(20) & (f)).

Minor’s probation report disclosed that he admitted he and 20 kids were “chilling

at the park” on November 20, 2014, and that he had tagged the park that day. He further

admitted he belonged to the SR tagging crew, and he went by the name of “Smokey.” He

said he frequently hung out with the group and estimated that they went to Bear Gulch

Park about once a week and tagged various locations. Minor said he knew that tagging

was illegal. In light of minor’s description, it was reasonable to assume that the SR

tagging crew fit within the definition of a criminal street gang under section 186.22,

subdivision (f), with its primary activity being vandalism. (§ 186.22, subd. (e)(20).)

Furthermore, given minor’s admitted membership in the SR tagging crew and his

description of their activities together, it was clear he understood what a tagging crew

was. Thus, the term “tagging crew,” as used in minor’s probation condition, was not

unconstitutionally vague.

Minor argues that condition No. 22 should be modified to limit it solely to the

tagging crew with which he was associated, the SR tagging crew. However, we agree

with the People that the court could reasonably require minor to stay away from all

tagging crews. Minor’s admitted affiliation with the SR tagging crew, combined with his

impressionable age and the fact that he knowingly committed crimes, certainly warranted

the court’s concern that he was in danger of falling under the influence of any tagging

7 crew. The imposition of condition No. 22, with the phrase “tagging crew,” was thus a

reasonable preventive measure in helping minor to avoid future criminality and to set him

on a productive course. (See In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502 (Laylah

K.).) Moreover, the probation condition was not punitive and was imposed simply to

help minor keep away from tagging crews.

In his reply brief, minor further complains that condition No. 22 put him “in an

impossible position if he were found in an area where a tagging crew other than the SR

tagging crew happened to gather from time to time.” He claims he could be found in

violation of his probation if he “happen[ed] to wander into such a location,” and asserts

that there was no evidence “he ha[d] any idea where other tagging crews might

congregate.” Nonetheless, “he [was] expected to avoid those areas or risk violating his

probation.” However, condition No. 22 only prohibited minor from being in areas where

he knew gangs gathered. Furthermore, a probation term should be given “the meaning

that would appear to a reasonable, objective reader.” (People v. Bravo (1987) 43 Cal.3d

600, 606.) Thus, minor would only be in violation of this condition if he was found in an

area where he knew other tagging crews gathered, not when he happened to wander into

such area.

C. The Phrase “Party Crew” Should Be Stricken

Minor argues that the term “party crew” is unconstitutionally vague and

overbroad, and that it infringes on his right to freedom of association. The People

concede that the phrase “party crew” is unconstitutionally vague and overbroad. Nothing

8 in the record explains what a “party crew” is, nor does the record indicate that minor was

involved with a “party crew.” Thus, we agree with the People that the term “party crew”

should be stricken from condition No. 22.

In sum, probation condition No. 22, as modified, simply directed minor to refrain

from gang/tagging crew association and was a reasonable preventive measure to help him

avoid future criminality. (See Laylah K., supra, 229 Cal.App.3d at p. 1502.)

DISPOSITION

Probation term No. 22 should be modified to read as follows: “Not be present in

any area, which he/she knows to be a gang gathering area. For the purpose of this

paragraph, the word ‘gang’ means a ‘criminal street gang’ as defined in Penal Code

Section 186.22, subdivision (e)(f), or any tagging crew.” In all other respects, the

judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST J.

We concur:

RAMIREZ P. J.

CODRINGTON J.