Filed 4/7/17; pub. order 5/2/17 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION TWO


In re OSWALDO R., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,
         Plaintiff and Respondent,
v.                                                      A148364
OSWALDO R.,                                             (Solano County
         Defendant and Appellant.                       Super. Ct. No. J43300)


         Oswaldo R. appeals from orders of the juvenile court continuing a previously
declared wardship and probation. He challenges a condition of probation requiring him
not to “participate in gang-related activities” as unconstitutionally vague because it lacks
an express knowledge requirement. We affirm the orders.
                                     STATEMENT OF THE CASE
         Appellant, then 14 years of age, was initially declared a ward of the court and
placed on probation on March 10, 2016, after he admitted the allegation of a Welfare and
Institutions Code section 602 petition that he committed misdemeanor battery on the
property of a school, park, or hospital (Pen. Code, § 243.2).1 The court dismissed an
allegation of felony resisting an executive officer (Pen. Code, § 69).


         1
        Further statutory references will be to the Penal Code except as otherwise
specified.


                                                    1
       The present section 602 petition, filed on April 6, 2016, alleged two counts of
felony vandalism causing damage of over $400. On April 19, the probation officer filed
a notice of hearing alleging that appellant had violated probation by failing to obey all
laws, comply with his court-ordered curfew, attend school and behave appropriately in
school. At a hearing on April 27, pursuant to the parties’ agreement, appellant admitted
the first count, reduced to a misdemeanor, and the second count and allegations of
probation violations were dismissed.2
       On May 11, the court continued appellant as a ward, removed him from parental
custody and committed him to the custody of the probation officer for placement in the
New Foundations program at Juvenile Hall. The court ordered conditions of probation,
including gang terms to which appellant objected.
       Appellant filed a timely notice of appeal on May 12, 2016.
                                      DISCUSSION
       Among the gang terms imposed as conditions of probation, the court ordered that
appellant “shall not be in any specific locations where gang members are known by him
to meet or gather or specific locations known by him for gang-related activity or specified
by his probation officer or a parent, in writing, as involving gang-related activity, nor
shall he participate in any gang-related activity.” (Italics added.)3 Appellant’s sole


       2
         The underlying facts, which are not relevant to the only issue raised on this
appeal, were summarized in the probation officer’s supplemental report, based on the
police department’s report concerning the incident. About 11:00 p.m. on March 21,
2016, appellant and another minor were contacted by police officers regarding reported
vandalism in which two vehicles owned by members of the same family had their
windshields smashed by what was later determined to be a baseball bat. The minors had
attempted to flee but were detained by members of the victims’ family. Appellant initially
denied responsibility, then later admitted briefly holding the bat but denied damaging the
cars. Appellant admitted drinking alcohol and associating with the Norteno Gang, and
the officers observed that he was wearing a long red necklace with a cross, an item
“closely associated with the Norteno Gang.”
       3
         As stated in the court’s disposition order, the condition read: “The Minor shall
not be in any ‘specific locations’ where gang members are known by the Minor to meet
or gather or ‘specific locations’ known by the Minor for gang-related activity, or

                                              2
contention on appeal is that the italicized language lacks an express knowledge
requirement and is facially vague in violation of his due process rights.
       Citing our decision in In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.),
appellant contends that the portion of the probation condition forbidding him from
participating in gang activities is unconstitutionally vague because the activities it
prohibits are “neither specified nor obvious.” He argues the condition should be
modified to include an express knowledge requirement in order to provide advance
warning that he would violate the condition only if he knew beforehand—from personal
knowledge or notification by his probation officer—that the activity in which he engaged
was prohibited “gang-related activity.”4
       As we explained in Victor L., “[u]nder the void for vagueness doctrine, based on
the due process concept of fair warning, an order ‘ “must be sufficiently precise for the
probationer to know what is required of him, and for the court to determine whether the
condition has been violated.” ’ (Sheena K., supra, 40 Cal.4th at p. 890.) The doctrine
invalidates a condition of probation ‘ “ ‘so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.’ ” ’ (Ibid.) By failing to
clearly define the prohibited conduct, a vague condition of probation allows law
enforcement and the courts to apply the restriction on an ‘ “ ‘ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application.’ ” ’ (Ibid.)”
(Victor L., supra, 182 Cal.App.4th at p. 910.)
       Victor L. found it necessary to add a knowledge requirement to probation
conditions which otherwise left uncertain what was required of the minor. For example,
a condition requiring him not to associate with “any person prohibited by his parent or

specified by his/her Probation Officer or parent in writing as involving gang-related
activity, nor shall he/she participate in any gang-related activity.” (Italics added.)
       4
         This claim is cognizable on appeal despite appellant’s failure to object on this
specific ground in the juvenile court because it is “capable of correction without
reference to the particular sentencing record developed in the trial court,” presenting “a
pure question of law, easily remediable on appeal by modification of the condition.” (In
re Sheena K. (2007) 40 Cal.4th 875, 885, 887-889 (Sheena K.).)


                                              3
probation officer” was modified to prohibit him from associating “with anyone whom the
Minor knows a parent or the probation officer prohibits association”; a condition
requiring him not to “remain in any building or vehicle, or in the presence of any person,
where dangerous or deadly weapons or firearms or ammunition exist” was modified to
prohibit him from remaining in such locations or presence where “the Minor knows one
or more” dangerous or deadly weapons, firearms or ammunition exist. (Victor L., supra,
182 Cal.App.4th at pp. 911-913, 931-932.) Absent addition of the knowledge
requirement, these conditions did not inform the minor in advance which persons and
places he was required to avoid. (Id. at pp. 911-913; see Sheena K., supra, 40 Cal.4th at
pp. 890-892.)
       Appellant relies upon our discussion in Victor L. of a condition requiring that he
“ ‘not be in any areas where gang members are known by Minor to meet or get together,
or areas known by Minor for gang-related activity, nor participate in any gang activity.”
(Victor L., supra, 182 Cal.App.4th at p. 913, fn. 7.) The minor challenged the portion of
this condition requiring him to stay away from “ ‘areas known by [him] for gang-related
activity.’ ” (Ibid.) We held that although it included a knowledge requirement, the
condition was impermissibly vague because “it does not provide notice of what areas he
may not frequent or what types of activities he must shun.” (Id. at p. 914.) In particular,
we noted that “the word ‘activity’ is one of surpassing breadth. One dictionary defines it,
inter alia, as ‘the quality or state of being active,’ with ‘active’ being defined as,
‘characterized by action rather than contemplation or speculation.’ (Webster’s New
Collegiate Dict. (1981) p. 12.) The use of the phrase ‘gang-related activity’ in the
condition of probation raises the specter that it could be misapplied by law enforcement
unless further specification were provided. (Id. at p. 915.) And, without further
specificity, the condition was “not sufficiently clear to put Victor on notice of the
prohibited conduct. The ambiguity of the chosen language conjures up divergent
possible definitions of the term ‘gang-related activity,’ and reasonable minds may differ




                                               4
as to precisely which ‘areas’ would come within the condition’s purview.” (Id. at
p. 916.)5
       Our concern in Victor L. was with the broadness of the term “activity” as used to
define locations the minor was required to avoid. (Victor L., supra, 182 Cal.App.4th at
pp. 915-917.) We noted that “ ‘[a]n area with “gang related activity” might be, in some
instances, an entire district or town[,]’ ” that “if a minor lived within the area described
by the gang-related boundaries, his banishment from it would be constitutionally suspect”
and that if the minor worked or went to school in such an area, the condition would need
to permit travel to these locations. (Id. at pp. 916-917, quoting In re H.C. (2009) 175
Cal.App.4th 1067, 1072.) We modified the condition to state that the minor “ ‘shall not
be in any areas where gang members are known by Minor to meet or get together, or
areas known by Minor for gang-related activity (or specified by his probation officer as
involving gang-related activity), nor shall he participate in any gang activity.’ ” (Victor
L., at pp. 917-918, 931–932.)
       Victor L. did not require modification of the last portion of the condition requiring
the minor not to “participate in any gang activity”—the condition at issue in the present
case—to add a knowledge requirement. This portion of the condition was not challenged
in Victor L., and in keeping with the challenge that was raised in that case, our focus was
on giving the minor notice of the areas he was required to avoid.
       Respondent initially maintains that modification of the condition is unnecessary
because “[g]iven the requirement that the probation officer or parent notify appellant of
what constitutes a location known for gang-related activity, it is implicit that any activity
violating the condition must be known to appellant to be gang-related.” In respondent’s
       5
         The minor in Victor L. suggested that because gang members “might mail a letter
at the post office ‘for the benefit’ of a street gang, or might purchase groceries ‘in
association’ with other gang members (Pen. Code, § 186.22, subd. (b)(1)),” he “might be
guilty of violating probation simply by shopping at the same grocery store or using the
same post office that other gang members patronize.” (Victor L., supra, 182 Cal.App.4th
at p. 915.) Although we agreed the probation condition required additional specificity,
we noted that we did not believe the suggested interpretation of the condition would be
reasonable. (Ibid.)


                                              5
view, the knowledge requirement stated in the part of the condition requiring appellant to
stay away from areas of gang-related activity need not be repeated in the portion
requiring him to refrain from participating in gang-related activities. The grammatical
construction of the condition, however, does not support this argument. The condition
imposes three requirements—that appellant not be in any “specific locations” where gang
members meet or gather, that he not be in any specific locations of gang-related activity,
and that he not participate in gang-related activity. Each of the first two requirements
includes an express knowledge component: “He shall not be in any specific locations
where gang members are known by him to meet or gather or specific locations known by
him for gang-related activity or specified by his probation officer or a parent, in writing,
as involving gang-related activity . . . .” The third requirement states simply, “nor shall
he participate in any gang-related activity.” Given the express inclusion of a knowledge
component for each of the first two requirements (avoid locations where gang members
meet or gather, avoid locations of gang-related activity), it is not reasonable to imply the
knowledge component into the third requirement (no participation in gang-related
activity), as to which it was not similarly stated. This is particularly true as the condition
is structured to state the third requirement as distinct from the first two, separated from
them by a comma.
       Respondent argues that the recent decision in People v. Hall (2016) 2 Cal.5th 494,
497 (Hall) establishes that the probation condition at issue in the present case does not
require modification. The probation conditions challenged in Hall prohibited possession
of firearms or illegal drugs without explicitly stating they applied only to “knowing”
possession. (Ibid.) The Supreme Court rejected the argument that these conditions were
unconstitutionally vague in that they did not expressly define the mens rea necessary to
sustain a probation violation, holding that the conditions “include[d] an implicit
requirement of knowing possession” and therefore afforded the defendant fair notice of
the required conduct. (Ibid.) The Hall court explained that “California case law already
articulates not only a general presumption that a violation of a probation condition must
be willful, but also specifically provides that probation conditions barring possession of


                                              6
contraband should be construed to require knowledge of its presence and its restricted
nature.” (Id. at p. 501.) Since case law requires the conditions to be construed as
prohibiting knowing possession of the contraband, their substance would not be changed
if they were modified to include the word “knowingly.” (Id. at pp. 503-504.) While trial
courts are free to explicitly “specify the requisite mens rea” when imposing such a
probation condition, inclusion of the express knowledge requirement is not
constitutionally compelled. (Ibid.)
       Hall distinguished the argument made in that case—that the conditions were vague
because they did not “articulate the requisite scienter”—from the argument in Sheena K.,
supra, 40 Cal.4th at pages 890-891, where the minor was prohibited from associating
with “ ‘anyone disapproved of by probation’ ” and claimed “that the category of
prohibited persons was vague, in that the condition failed to specify which persons the
probation officer had disapproved of.” (Hall, supra, 2 Cal.5th at pp. 502-503.) The Hall
court noted that Sheena K. did not modify the no-association condition to require that the
probationer avoid “knowingly associating with the specified group of persons.” (Hall, at
pp. 502-503.) Doing so would not have clarified which persons the minor was required
to avoid.
       Respondent either misunderstands or ignores the fact that appellant’s argument in
the present case is of the type considered in Sheena K. and Victor L., not the type
considered in Hall. Appellant is not suggesting that although he understands what
activities he is barred from participating in, he might nevertheless unwittingly participate
in one, and he is not asking that the condition be modified to include the requirement that
he not participate in the prohibited activities “knowingly.” If it is not clear what activities
constitute “gang related activities,” directing appellant not to “knowingly” participate in
them would not make any clearer what activities he is required to avoid. His argument is
that because the term “activity” is so broad, he cannot ascertain in advance what activities
he is required to avoid. He is concerned, for example, that he might engage in what he
believes to be innocent behavior, such as “attending a particular musician’s concert at a
multi-purpose venue or watching an automobile sideshow on a public street,” only to


                                              7
learn that his probation officer viewed it as forbidden conduct. Consequently, he seeks
the sort of modification ordered in Sheena K., to specify that he is not to participate in
activities he knows or is informed by a probation officer are gang-related.6
       Nevertheless, Hall does lead us to conclude that the modification appellant seeks
is not required. As Hall explained, the nature of the condition in Sheena K., which was
defined by reference to the probation officer’s approval, was such that the minor had no
way to know which people she was required to avoid unless she was specifically
informed. The present case does not present the same problem, because the scope of the
condition is readily ascertainable.
       In determining whether a probation condition is “sufficiently definite,” a court “is
not limited to the condition’s text” but “must also consider other sources of applicable
law.” (Hall, supra, 2 Cal.5th at p. 500.) A provision “is not void for vagueness ‘ “if its
terms may be made reasonably certain by reference to other definable sources.” ’ ” (Id. at
pp 500-501, quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117

       6
          Hall was decided after briefing in the present case was complete. In response to
our request for a supplemental letter brief addressing the application of Hall, respondent
fails to distinguish between the type of probation conditions addressed in Hall, which
sufficiently define the required conduct and therefore need not include an express
knowledge requirement in order to “prevent unwitting violations” (Hall, supra, 2 Cal.5th
at p. 503, fn. 2), and conditions that are “not easily amenable to precise definition”
(People v. Moore (2012) 211 Cal.App.4th 1179, 1185), which is what appellant actually
claims here. Respondent’s prior briefing also fails to address the substance of appellant’s
argument. The majority of its brief discusses the reasonableness of the gang condition, a
point appellant did not challenge. Respondent then attempts to distinguish Victor L. by
focusing on the condition we found vague and modified to include a knowledge
requirement—that the minor not “remain” in locations or in the presence of persons
where dangerous or deadly weapons or ammunition existed—and arguing that the
condition challenged in the present case does not contain the word “remain.”
Respondent’s point, apparently, is that Victor L. does not support finding an express
knowledge requirement necessary in the present case because our only reason for
requiring modification in Victor L. was that the word “remain” did not inherently
establish a knowledge requirement. (Victor L., supra, 182 Cal.App.4th at p. 912.) That
point has no apparent bearing on whether the condition in the present case, prohibiting
participation in gang-related activities, sufficiently describes what activities appellant is
required to avoid.


                                              8
(Acuna).) “Thus, a probation condition should not be invalidated as unconstitutionally
vague ‘ “ ‘if any reasonable and practical construction can be given to its language.’ ” ’ ”
(Hall, at p. 501, quoting Williams v. Garcetti (1993) 5 Cal.4th 561, 567.)
       The challenged condition was one of a number imposed with reference to the law
concerning criminal street gangs. The gang terms, as printed on the dispositional order
and as stated orally by the court, began with the order that appellant “not be a member of
any gang, meaning a ‘criminal street gang’ as defined in Penal Code Section 186.22(f)
. . .” According to the statutory definition, “ ‘criminal street gang’ means any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of the criminal acts
enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision
(e), having a common name or common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a pattern of criminal gang
activity.” (§ 186.22, subd. (f), italics added.)
       “[I]n evaluating challenges based on claims of vagueness, . . . ‘[t]he particular
context is all important.’ ” (Acuna, supra, 14 Cal.4th at p. 1116.) The statutory
definition of criminal street gang, together with other provisions of section 186.22,
necessarily inform further references to “gang” in the probation conditions, including the
phrase “gang-related activity.” Section 186.22, subdivision (e), defines “pattern of
criminal gang activity” as “the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of
the following offenses,” committed on separate occasions, by two or more persons,
within a specified time frame; the “following offenses” are a list of 33 criminal acts
ranging from homicide to unlawful use of personal identifying information. (Ibid.)
Under section 186.22, subdivision (a), the offense of participation in a criminal street
gang is committed by a person who “actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang. . . .” An enhancement must be imposed if a person “is


                                               9
convicted of a felony 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)(1).)
       Considered in context, it is apparent that the “gang-related activity” referred to in
the probation condition is activity facilitating or involving the commission of crimes for
the benefit of or in association with a criminal street gang. The phrase cannot reasonably
be understood as applying to lawful activities that happen to take place where gang
members are present.
       The Hall court, referring to the argument that inclusion of an express knowledge
requirement in the probation condition was preferable to courts construing weapon and
drug possession conditions as requiring knowledge of the contraband’s presence and its
restricted nature, commented, “At core, what defendant seeks through modification is
‘absolute clarity’ in the text of the condition itself, without the need to rely on ‘a judicial
construction.’ But the question before us is not whether this degree of precision would be
desirable in principle, but whether it is constitutionally compelled. As we have
previously observed, the vagueness doctrine demands ‘ “no more than a reasonable
degree of certainty.” ’ ” (Hall, supra, 2 Cal.5th at p. 503, quoting Acuna, supra, 14
Cal.4th at p. 1117.)
       So, here, appellant seeks “absolute clarity” in the text of the condition. Both to
inform the probationer and to guard against the possibility of arbitrary enforcement, we
encourage trial courts to provide as much clarity in probation conditions as reasonably
possible. Because the condition in the present case provides “ ‘ “a reasonable degree of
certainty” ’ ” (Hall, supra, 2 Cal.5th at p. 503), however, we cannot find it
unconstitutionally vague.
                                           DISPOSITION
       The judgment is affirmed.




                                              10
                                 _________________________
                                 Kline, P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




                            11
Filed 5/2/17

                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


In re OSWALDO R., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,
                                                    A148364
        Plaintiff and Respondent,
v.                                                  (Solano County
                                                    Super. Ct. No. J43300)
OSWALDO R.,
        Defendant and Appellant.                  ORDER CERTIFYING OPINION
                                                  FOR PUBLICATION

THE COURT:
        The opinion in the above-entitled matter, filed on April 7, 2017, was not certified
for publication in the Official Reports. For good cause, appellant’s request for
publication is granted.
        Pursuant to California Rules of Court, rules 8.1105 and 8.1120, the opinion is
ordered certified for publication in the Official Reports.




Dated: _____________________                       _________________________
                                                   Kline, P.J.




                                              1
Trial Court:                    Solano County Superior Court

Trial Judge:                    Hon. D. Scott Daniels


Attorneys for Appellant:        By Appointment of the Court
                                of Appeal Under the First District
                                Appellate Project

                                Kathryn Seligman

Attorneys for Respondent;       Kamala D. Harris
                                Attorney General of the State of California

                                Gerald A. Engler
                                Chief Assistant Attorney General

                                Jeffrey M. Laurence
                                Senior Assistant Attorney General

                                Donna M. Provenzano
                                Supervising Deputy Attorney General

                                Aileen Bunney
                                Deputy Attorney General




                            2
