Filed 3/6/15 In re A.R. CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

In re A.R., a Person Coming Under the                                H041047
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. JV40060)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

A.R.,

         Defendant and Appellant.


         At disposition on multiple juvenile wardship petitions, A.R. was declared a ward
of the court.1 The juvenile court ordered him placed at the Santa Clara County Juvenile
Rehabilitation Facilities, Enhanced Ranch Program and, upon successful completion of
that program, returned to parental custody under the supervision of the probation officer.
The court ordered A.R. to “not use or possess any graffiti-related materials or engage in
any illegal graffiti-related activity.”
         On appeal, A.R. contends that this probation condition is unconstitutionally vague
and overbroad. A claim that a probation condition is unconstitutionally vague or
1
       A.R. admitted certain allegations on petitions A, C, and D. Count 2 of Petition A
was dismissed with a Harvey waiver (see People v. Harvey (1979) 25 Cal.3d 754). That
count alleged that A.R. committed vandalism (Pen. Code, § 594, subds. (a) & (b)(2)(A))
by “maliciously defac[ing] with graffiti and other inscribed material property, school
fixtures/premises, not his/her own, in the amount of less than four hundred dollars ($400).
unconstitutional overbroad on its face is not forfeited by the failure to raise it in the
juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) We agree
that, in the absence of an express requirement of knowledge, the prohibition against using
or possessing any graffiti-related materials is unconstitutionally vague on its face and,
consequently, we will modify the probation condition.
                                          Discussion
A. Unconstitutional Vagueness
       A.R. asserts that the graffiti condition is unconstitutionally vague because it does
not contain a knowledge requirement and does not provide him with adequate notice of
what is required of him. He maintains that the condition “must be stricken or, if possible,
modified to lawfully achieve an intended legitimate purpose.”
       In particular, A.R. argues that “the phrase ‘graffiti-related materials’ is
extraordinarily vague because it does not define these materials . . . .” A.R. contends that
the condition requires him “to speculate as to what other people might consider to be
‘graffiti-related materials’ or ‘graffiti activity.’ ” A.R. also claims the condition is
unconstitutionally vague because it lacks a knowledge requirement and “he could be in
possession of the prohibited items without knowing it.” The People suggest modification
of the condition to require A.R. to “not knowingly use or possess any graffiti-related
materials, or knowingly engage in any illegal graffiti-related activity.” A.R. maintains
that the People’s proposed modification does not cure the unconstitutional vagueness.
       “A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (In re
Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he underpinning of a vagueness challenge is
the due process concept of ‘fair warning.’ (People v. Castenada (2000) 23 Cal.4th 743,
751, [97 Cal.Rptr.2d 906, 3 P.3d 278].) The rule of fair warning consists of ‘the due
process concepts of preventing arbitrary law enforcement and providing adequate notice
                                               2
to potential offenders’ (ibid.), protections that are ‘embodied in the due process clauses of
the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const.,
art. I, § 7).’ (Ibid.)” (Ibid.)
       “The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.” [Citations.]’ [Citation.]
A vague law ‘not only fails to provide adequate notice to those who must observe its
strictures, but also “impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the
adequacy of any notice afforded those bound by a legal restriction, we are guided by the
principles that ‘abstract legal commands must be applied in a specific context,’ and that,
although not admitting of ‘mathematical certainty,’ the language used must have
‘ “reasonable specificity.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
       In Sheena K., which A.R. cites, the probation condition at issue prohibited Sheena
from associating “ ‘with anyone disapproved of by probation.’ ” (Sheena K., supra, 40
Cal.4th at p. 880.) That “condition did not notify defendant in advance with whom she
might not associate through any reference to persons whom defendant knew to be
disapproved of by her probation officer.” (Id. at pp. 891-892.) The Supreme Court
agreed that “modification to impose an explicit knowledge requirement [was] necessary
to render the condition constitutional. [Citations.]” (Id. at p. 892.) Sheena K. indicates
that a vagueness problem may arise whenever a probation condition imposes general,
categorical restrictions on conduct but does not provide adequate notice that particular
conduct is within the purview of the condition.
       “A condition is sufficiently precise if its terms have a ‘plain commonsense
meaning, which is well settled . . . .’ (People v. Rodriquez (1975) 50 Cal.App.3d 389,
398 . . . ; see also People v. Morgan (2007) 42 Cal.4th 593, 605 . . . [‘ “ ‘any reasonable
                                              3
and practical construction’ ” ’ of the statutory language at issue defeats a vagueness
challenge].)” (In re R.P. (2009) 176 Cal.App.4th 562, 566-567.) The phrase “graffiti-
related materials” is reasonably understood as referring to materials for creating graffiti.
The word “graffiti” is defined by a dictionary as “inscriptions, slogans, drawings, etc.
scratched, scribbled, or drawn, often crudely, on a wall or other public surface.”
(Webster’s New World Dict. (4th college ed. 2008) p. 616.) The word “materials” is
defined by a dictionary as “implements, articles, etc. needed to make or do something
[writing materials].” (Webster’s New College Dict., supra, at p. 886.) The general
phrase “graffiti-related materials” is not so vague that people of common intelligence
must guess at its meaning. (See Sheena K., supra, 40 Cal.4th at p. 890.) Moreover, as
the United States Supreme Court has recognized in the context of a vagueness challenge,
“[c]ondemned to the use of words, we can never expect mathematical certainty from our
language.” (Grayned v. City of Rockford (1972) 408 U.S. 104, 110 [92 S.Ct. 2294],
fn. omitted.)
       We recognize, however, the challenged graffiti condition suffers from a Sheena K.
type of deficiency in that A.R. might be unaware that a particular item comes within the
generally described class of materials. The inclusion of a scienter requirement, however,
“may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the
complainant that his conduct is proscribed.” (See Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc. (1982) 455 U.S. 489, 499, fn. omitted; see also Posters ‘N’ Things,
Ltd., et al. v. United States (1994) 511 U.S. 513, 526 [the court’s inference of a scienter
requirement assisted in avoiding any vagueness problem with the Mail Order Drug
Paraphernalia Control Act].) Consequently, we will add an express knowledge
requirement with respect to the prohibited use or possession of “graffiti-related materials”
to ensure that minor has fair notice of what is expected of him. Thus, A.R. will violate
probation only if he uses or possesses items that he knows qualify as “graffiti-related
materials,” i.e., materials for creating graffiti.
                                                4
       A.R. has an additional concern that he might, unbeknownst to himself, possess
graffiti-related materials. He suggests, for example, that “someone could ask him to
carry a backpack with marking substances or graffiti tools in it” or lend him “a jacket
with such objects in the pockets.” We agree that, as the graffiti condition was written, the
mental state necessary to establish a violation of probation for the use or possession of
any graffiti-related materials is uncertain. The condition does not specify any mental
state and conceivably the condition could be construed as making A.R. responsible for
the mere unknowing possession of such materials. That potential uncertainty will be
eliminated, however, since we will add an express knowledge requirement to the
probation condition.
       A.R. also maintains that the condition is unconstitutionally vague because it does
not require him to know that he is engaging in illegal graffiti-related activity. Here, we
disagree. “Activity” is a very broad term that covers “any specific action or pursuit.”
(Webster’s New College Dict., supra, at p. 14.) The phrase “graffiti-related activity” is
reasonably understood as referring to activities related to creating graffiti. The word
“illegal” means “prohibited by law.” (Webster’s New College Dict., supra, at p. 710.)
The express prohibition against engaging in any illegal graffiti-related activity is merely a
subset of the implicit probation condition requiring a probationer to “obey all laws.” (See
People v. Leal (2012) 210 Cal.App.4th 829, 838.) The express prohibition is sufficiently
precise to give A.R. fair warning that he will violate probation if he engages in graffiti-
related activity that is illegal.2

2
        A number of different statutes criminalize conduct related to graffiti. For
example, “[e]very person who maliciously commits any of the following acts with
respect to any real or personal property not his or her own, in cases other than those
specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed
material . . . .” (Pen. Code § 594, subd. (a).) As used in Penal Code section 594, “the
term ‘graffiti or other inscribed material’ includes any unauthorized inscription, word,
figure, mark, or design, that is written, marked, etched, scratched, drawn, or painted on
(continue)
                                              5
       To the extent that A.R. may be contending that the prohibition is
unconstitutionally vague because it does not require him to know that any
“graffiti-related activity” in which he engages is illegal, we reject the contention. That
argument is inconsistent with the “fundamental principle that, in the absence of specific
language to the contrary, ignorance of a law is not a defense to a charge of its violation.”
(Hale v. Morgan (1978) 22 Cal.3d 388, 396; see People v. Snyder (1982) 32 Cal.3d 590,
592-593 [defendant’s lack of knowledge that she was a convicted felon forbidden to
possess concealable firearms no defense]; see also Pen. Code, § 7, subd. 5 [As a general
rule, “[t]he word ‘knowingly’ imports only a knowledge that the facts exist which bring
the act or omission within the provisions of this code” and “[i]t does not require any
knowledge of the unlawfulness of such act or omission.”].) For this reason, we will
modify the graffiti condition to make clear that no knowledge requirement applies to the
prohibition against engaging in any illegal graffiti-related activity.
B. Unconstitutional Overbreadth
       A.R. asserts that the challenged graffiti condition is “unconstitutionally overbroad
because it restricts [his] possession of objects regardless of their function or use, and
regardless of his intent in possessing such objects.” He claims that the condition
“prohibits [him] from possessing a pen or pencil, any kind of paint, or any number of
substances and implements.” Citing California Constitution, article I, section 1, A.R.
complains that the condition “impinges upon [his] fundamental constitutional right to


real or personal property.” (Pen. Code, § 594, subd. (e).) As another example, “[e]very
person who possesses a masonry or glass drill bit, a carbide drill bit, a glass cutter, a
grinding stone, an awl, a chisel, a carbide scribe, an aerosol paint container, a felt tip
marker, or any other marking substance with the intent to commit vandalism or graffiti, is
guilty of a misdemeanor.” (Pen. Code, § 594.2, subd. (a).) For purposes of Penal Code
section 594.2, “marking substance” “means any substance or implement, other than
aerosol paint containers and felt tip markers, that could be used to draw, spray, paint,
etch, or mark.” (Pen. Code § 594.2, subd. (c)(2).)

                                              6
possess property, and is not narrowly tailored to the state’s compelling interest in his
reformation and rehabilitation.”3
       It is well established that “[a] probation condition that imposes limitations on a
person’s constitutional rights must closely tailor those limitations to the purpose of the
condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]”
(Sheena K., supra, 40 Cal.4th at p. 890.) “The essential question in an overbreadth
challenge is the closeness of the fit between the legitimate purpose of the restriction and
the burden it imposes on the defendant’s constitutional rights—bearing in mind, of
course, that perfection in such matters is impossible, and that practical necessity will
justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
       The constitutional problem of prohibiting use or possession of common objects
that may potentially be used for legitimate purposes as well as improper purposes is not
new. The addition of a knowledge requirement corrects the potential overbreadth
problem by narrowing the condition to objects whose nature is known by the probationer
to fit within the proscription. (See e.g., People v. Rodriguez (2013) 222 Cal.App.4th 578,
594 [trial court directed to add knowledge requirement to proscription against use or
possession of intoxicants since that word “may include common items such as adhesives,
bath salts, mouthwash, and over-the-counter medicines”]; People v. Lopez (1998) 66
Cal.App.4th 615, 629 [condition had to be modified to require defendant not to “wear or
possess any item of gang clothing known to be such by defendant”].) No reasonable
person would read the graffiti condition as modified to mean that A.R. cannot use or
possess a pen, pencil, or marker for legitimate purposes, such as doing school work.



3
       California Constitution, article I, section 1 states: “All people are by nature free
and independent and have inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.” (Italics added.)

                                              7
Those materials would not be known by A.R. to be “graffiti-related.” We decline A.R.’s
request to strike the graffiti condition.
                                        DISPOSITION
       The challenged probation condition is modified to read: “That said minor not
knowingly use or possess any graffiti-related materials and said minor not engage in any
illegal graffiti-related activity.” As modified, the dispositional order is affirmed.




                                              8
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.
