Filed 3/20/13 In re Elizabeth V. CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re ELIZABETH V., a Person Coming
Under the Juvenile Court Law.
                                                                 D061651
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. J230398)

         v.

ELIZABETH V.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Carlos O.

Armour, Judge. Reversed in part, affirmed in part, and remanded with directions.

         The San Diego County District Attorney's Office filed a juvenile petition under

section 602 of the Welfare and Institutions Code (undesignated statutory references will

be to the Welfare and Institutions Code unless otherwise specified) alleging Elizabeth V.

made criminal threats on October 29, 2011, and January 9, 2012 (counts 1 & 3,
respectively: Pen. Code, § 422; victim: Leticia C.),1 committed vandalism on October

29, 2011 (count 2: Pen. Code, § 594, subds. (a) & (b)(1); victim: Elena C.) and willfully

disobeyed a restraining order on January 9, 2012 (count 4: Pen. Code, § 166, subd.

(a)(4)). Following a contested hearing, the juvenile court sustained the petition as to

counts 2, 3 and 4. The court dismissed count 1 "due to an insufficiency of the evidence."

       At the disposition hearing, the juvenile court declared Elizabeth a ward of the

court and ordered that she be placed on probation subject to a variety of conditions,

including the four conditions Elizabeth challenges in this appeal, which prohibit her from

(1) "ALL ONLINE COMMERCE"; (2) "us[ing] a computer for any purpose other than

school related assignments"; (3) "be[ing] in any privately owned vehicle with more than

one person under the age of 18 unless accompanied by a parent or legal guardian, or with

permission of the Probation Officer"; and (4) "appear[ing] in Court or at any courthouse

unless a party or witness in the proceedings, or with permission of the Probation Officer."

       Elizabeth contends the four foregoing conditions of her probation should be

stricken because they are unconstitutionally vague and overbroad. We conclude we must

strike the all online commerce prohibition because it is unconstitutionally overbroad. We

also conclude the computer use restriction prohibiting Elizabeth, even under supervision,

from using a computer "for any purpose other than school related assignments" is

unconstitutionally overbroad and must be modified to protect her constitutional rights by

adding language allowing her to have supervised use of a computer not only for school-


1     We refer to Leticia C. and her mother, Elena C., by their first names because it
appears Leticia, like Elizabeth, was a minor.
                                             2
related assignments, but also for legitimate work or personal purposes as her probation

officer may reasonably permit from time to time. The People concede and we agree we

must modify the restricted driving condition to include a knowledge requirement. We

also conclude we must strike the restricted court access condition because it is

unconstitutionally overbroad and remand the matter to the juvenile court to fashion a

narrower condition if the juvenile court finds the condition is still necessary. In all other

respects, we affirm the juvenile court's judgment.

                               FACTUAL BACKGROUND

       A. The People's Case

       At around 4:00 a.m. on October 29, 2011, Elena heard a loud noise in the front of

her house and then her car alarm going off. She looked outside and saw a group of

people, including Elizabeth, standing near her car and laughing. Elena and her daughter,

Leticia, saw Elizabeth throw a brick at the car. The brick landed on the windshield.

Later, when they went outside, they found another brick on the hood of the car. Elena

estimated that the damage to the windshield and hood of the car was more than $2,000.

       In the morning on January 9, 2012, following a hearing, the juvenile court issued a

restraining order prohibiting Elizabeth from contacting Elena or Leticia. Elizabeth was

present at the hearing.

       Later that same day, Leticia received a telephone call from Elizabeth, who asked

Leticia why she was pursuing criminal charges against her. Elizabeth angrily threatened

Leticia, saying, "It ain't over. I'm going to beat your ass. I'm going to stomp you out

until you bleed."

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       B. Defense Case

       Elizabeth testified in her own defense. She denied that she threw a brick at Elena's

car and stated she was in Tijuana, Mexico, on the day the incident happened. She also

denied that she called Letiticia.

       On cross-examination, Elizabeth acknowledged that she told a police officer in

early November 2011 that she was present at the scene during the incident. She testified

that she made that statement to the officer because her mother "was crying to [her] to

admit to it and to pay the damages." Elizabeth acknowledged her mother offered to pay

for the damage to Elena's car. Elizabeth also admitted she has a Facebook account in

which she posted a statement that Leticia is "stupid."

                                       DISCUSSION

                                              I

                                       FORFEITURE

       Preliminarily, we conclude that although Elizabeth acknowledges her counsel did

not object in the juvenile court to the four probation conditions she challenges here, she

has not (as the Attorney General contends) forfeited her claims that these conditions are

unconstitutionally vague and overbroad. Failure to object to a probation condition as

vague or overly broad does not result in a forfeiture where, as here, the objection presents

a facial challenge raising a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875,

888 (Sheena K.); In re E.O. (2010) 188 Cal.App.4th 1149, 1153, fn. 1.) As Elizabeth

correctly points out, she does not refer to any particular facts in this case and the Attorney

General has presented no argument why her claims should be deemed forfeited. The

                                              4
Attorney General merely asserts that "[b]ecause [Elizabeth] never objected to any of the

conditions imposed, she has forfeited the contentions on appeal." Accordingly, we

address the merits of her claims.

                                             II

                 CONSTITUTIONALITY OF THE FOUR CHALLENGED
                         CONDITIONS OF PROBATION

       Elizabeth challenges on constitutional grounds the four probation conditions

prohibiting her from (1) "ALL ONLINE COMMERCE"; (2) "us[ing] a computer for any

purpose other than school[-]related assignments"; (3) "be[ing] in any privately owned

vehicle with more than one person under the age of 18 unless accompanied by a parent or

legal guardian, or with permission of the Probation Officer"; and (4) "appear[ing] in

Court or at any courthouse unless a party or witness in the proceedings, or with

permission of the Probation Officer."

       A. General Legal Principles

       "The state, when it asserts jurisdiction over a minor, stands in the shoes of the

parents." (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) When a juvenile court

adjudges a minor a ward of the court under section 602 and places the ward under the

supervision of a probation officer, "[t]he court may impose and require any and all

reasonable [probation] conditions that it may determine fitting and proper to the end that

justice may be done and the reformation and rehabilitation of the ward enhanced."

(§ 730, subd. (b).)




                                             5
       "The juvenile court has wide discretion to select appropriate [probation]

conditions . . . ." (Sheena K., supra, 40 Cal.4th at p. 889.) The permissible scope of the

juvenile court's discretion in formulating the terms of a minor's probation is greater than

that allowed for adult probationers "because juveniles are deemed to be 'more in need of

guidance and supervision than adults, and because a minor's constitutional rights are

more circumscribed.'" (In re Victor L. (2010) 182 Cal.App.4th 902, 910; In re Antonio

R., supra, 78 Cal.App.4th at p. 941.) Thus, a probation condition that would be

unconstitutional or otherwise improper for an adult probationer may be permissible for a

minor under the supervision of the juvenile court. (Sheena K., supra, at p. 875.)

       Generally, a probation condition will be upheld unless it " '(1) has no relationship

to the crime of which the offender was convicted, (2) relates to conduct which is not in

itself criminal, and (3) requires or forbids conduct which is not reasonably related to

future criminality . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted,

abrogated by Proposition 8 on another ground as explained in People v. Wheeler (1992) 4

Cal.4th 284, 290-292.)

       Furthermore, the juvenile court must not order conditions that are

unconstitutionally vague or overbroad. (Sheena K., supra, 40 Cal.4th at p. 890.)

Although challenges to the constitutionality of probation conditions on the grounds of

vagueness and overbreadth are frequently made together, the concepts are distinct.

       [T]he underpinning of a vagueness challenge is the due process concept of 'fair

warning.'" (Sheena K., supra, 40 Cal.4th at p. 890; see U.S. Const., Amends. 5, 14; Cal.

Const., art. I, § 7.) A probation condition is unconstitutionally vague if it is not

                                              6
"'sufficiently precise for the probationer to know what is required of him [or her], and for

the court to determine whether the condition has been violated.'" (Sheena K. at p. 890.)

"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." ' " (Ibid., quoting People ex rel. Gallo v. Acuna

(1997) 14 Cal.4th 1090, 1116-1117.)

       In contrast, a probation condition is unconstitutionally overbroad if it imposes

limitations on the probationer's constitutional rights and it is not closely or narrowly

tailored and reasonably related to the compelling state interest in reformation and

rehabilitation. (Sheena K., supra, 40 Cal.4th at p. 890; In re Victor L, supra, 182

Cal.App.4th at p. 910.) "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.)

       In an appropriate case, a probation condition that is not " 'sufficiently narrowly

drawn' " may be modified and affirmed as modified. (People v. Lopez (1998) 66

Cal.App.4th 615, 629; see also In re E.O., supra, 188 Cal.App.4th at p. 1158.)

       1. Standard of review

       Generally, "[t]he juvenile court's exercise of discretion in establishing conditions

of probation in juvenile cases 'will not be disturbed in the absence of manifest abuse.'"

                                              7
(In re Christopher M. (2005) 127 Cal.App.4th 684, 692; In re Josh W. (1997) 55

Cal.App.4th 1, 5.) However, a facial challenge to a term of probation on the ground of

unconstitutional vagueness or overbreadth that is capable of correction without reference

to the particular sentencing record developed in the trial court presents a pure question of

law, and we review such challenges de novo. (Sheena K., supra, 40 Cal.4th at p. 887; In

re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

       B. Analysis

       1. First restricted computer use condition

       Elizabeth first contends the probation condition that she is prohibited from all

online commerce should be stricken because it is unconstitutionally vague and overbroad

on its face. She asserts (1) the condition is unconstitutionally vague because it

"necessarily chills her exercise of protected Constitutional rights" and she "cannot tell

what behavior is prohibited"; and (2) it is unconstitutionally overbroad because (among

other things) it is not narrowly tailored to achieve the juvenile court's goals of

rehabilitating her and promoting public safety.

       We conclude this online commerce ban is unconstitutionally overbroad and must

be stricken. "Restrictions upon access to the Internet necessarily curtail First Amendment

rights." (In re Stevens (2004) 119 Cal.App.4th 1228, 1235.) As already discussed, the

overbreadth doctrine requires that conditions of probation that impinge on constitutional

rights be closely or narrowly tailored, and reasonably related, to the compelling state

interest in reformation and rehabilitation of the juvenile probationer. (Sheena K., supra,



                                              8
40 Cal.4th at p. 890; In re Victor L., supra, 182 Cal.App.4th 910; see also In re Stevens,

at p. 1237.)

       Here, the court imposed the challenged probation conditions, including the blanket

online commerce ban, after it found true the petition allegations that Elizabeth (1)

vandalized Elena's car on October 29, 2011 (count 2); (2) made criminal threats against

Leticia during a phone call on January 9, 2012 (count 3); and (3) willfully disobeyed a

restraining order by making that call on January 9, 2012 (count 4). The Attorney General

has not shown, and cannot demonstrate, that the challenged online commerce ban is

narrowly tailored and reasonably related to the compelling state interest in Elizabeth's

reformation and rehabilitation. This sweeping probation condition imposes far-reaching

restrictions that, for example, would prevent her from using the Internet to buy books,

find medical or social service resources, search for a college, or purchase bumper stickers

and other materials related to political campaigns or charitable causes. None of these and

innumerable similar "online commerce" restrictions are closely tailored and reasonably

related to the state's interests in rehabilitating Elizabeth and promoting public safety. The

online commerce prohibition is unconstitutionally overbroad and must be stricken.2




2      In light of our conclusion, we need not reach Elizabeth's related claim that the
online commerce prohibition is unconstitutionally vague.

                                             9
       2. Second restricted computer use condition

       Elizabeth also contends a second computer use condition of probation prohibiting

her from "us[ing] a computer for any purpose other than school related assignments"3

should be stricken because it is unconstitutionally vague and overbroad on its face. She

asserts the condition is unconstitutionally vague because "[i]t is unclear exactly what a

school-related assignment might encompass"; and it is unconstitutionally overbroad

because this prohibition, "when read in tandem with the 'ONLINE COMMERCE'

prohibition, sweeps far too broadly in its attempt to achieve the government's goals of

rehabilitation and crime prevention."

       "Computers and Internet access have become virtually indispensable in the

modern world of communications and information gathering." (United States v. Peterson

(2nd Cir. 2001) 248 F.3d 79, 83.) Computers and the Internet now "'comprise[] the

"backbone" of American academic, governmental, and economic information systems.'"

(In re Stevens, supra, 119 Cal.App.4th at p. 1234.) "The Supreme Court has

characterized the Internet as 'a vast library including millions of readily available and

indexed publications . . . .' " (Ibid.)

       As already noted, "[r]estrictions upon access to the Internet necessarily curtail

First Amendment rights." (In re Stevens, supra, 19 Cal.App.4th at p. 1235.) Thus, a



3      The full text of this probation condition is as follows: "The minor is not to use a
computer for any purpose other than school related assignments. The minor is to be
supervised when using a computer in the common area of his/her residence or in a school
setting." (Italics added.) Elizabeth does not challenge the portion of this condition
requiring supervision of her computer use.
                                             10
probation condition that restricts the use of a computer to access the Internet "must

closely tailor those limitations to the purpose of the condition to avoid being invalidated

as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890; see In re

Stevens, at p. 1237.)

       Here, the blanket restriction on Elizabeth's use of a computer for only school-

related assignments precludes her extracurricular use of a computer to write letters; create

art; use software to learn a foreign language; learn about current local, national, and

international news; obtain medical information; and obtain other legitimate information

wholly unrelated to her criminal conduct in this case. Such a broad restriction is not

narrowly tailored and reasonably related to the state's interests in rehabilitating Elizabeth

and deterring future criminality.

       Accordingly, we conclude this restriction is unconstitutionally overbroad and must

be modified to protect her constitutional rights by adding language allowing her to have

supervised use of a computer not only for school-related assignments, but also for

legitimate work or personal purposes as her probation officer may reasonably permit

from time to time. (See In re Hudson (2006) 143 Cal.App.4th 1, 11 ["[Defendant] will be

allowed to use a computer and access the Internet if he first obtains permission from [his

parole officer.].) Furthermore, in the interest of avoiding any uncertainty regarding such

permitted use, the probation officer shall describe such permitted legitimate use in

writing and deliver that writing to Elizabeth and her parents or other adults charged with

supervising her use of a computer. As so modified, we believe the probation condition

will not unduly impinge on Elizabeth's constitutional rights.

                                             11
       We reject Elizabeth's claim that the condition at issue here is unconstitutionally

vague because "[i]t is unclear exactly what a school-related assignment might

encompass." As noted, the language of a probation condition must be reasonably specific

and will be found unconstitutionally vague if it is not " 'sufficiently precise for the

probationer to know what is required of him [or her], and for the court to determine

whether the condition has been violated.' " (Sheena K., supra, 40 Cal.4th at p. 890.)

Here, the term "school related assignments" is reasonably specific, and we are persuaded

it is sufficiently precise for Elizabeth to " 'know what is required of [her], and for the

court to determine whether the condition has been violated.' " (Ibid.)

       3. Restricted driving condition

       The restricted driving condition prohibits Elizabeth from being "in any privately

owned vehicle with more than one person under the age of 18 unless accompanied by a

parent or legal guardian, or with permission of the Probation Officer." Elizabeth

contends, the People concede, and we agree the restricted driving condition must be

modified to include a knowledge requirement. (See, e.g., Sheena K., 40 Cal.4th at pp.

890-892; People v. Leon (2010) 181 Cal.App.4th 943, 950 (Leon).) As the Attorney

General acknowledges, "it is possible that [Elizabeth] could be in the presence of minors

without knowing that they were under 18 years of age."

       4. Restricted court access condition

       The restricted court access condition prohibits Elizabeth from "appear[ing] in

Court or any courthouse unless [she is] a party or witness in the proceedings, or with

permission of the Probation Officer." Elizabeth contends we must strike or modify the

                                              12
restricted court access condition because it is unconstitutionally overbroad. We conclude

this condition is unconstitutionally overbroad and must be stricken.

       Three appellate courts have recently considered similar probation conditions, and

all three concluded the conditions were unconstitutionally overbroad. In Leon, supra,

181 Cal.App.4th 943, the Court of Appeal held unconstitutionally overbroad a condition

that stated: "You shall not appear at any court proceeding unless you're a party, you're a

defendant in a criminal action, subpoenaed as a witness, or with permission of

probation." (Id. at pp. 952-953.) Quoting Bill Johnson's Restaurants, Inc. v. NLRB

(1983) 461 U.S. 731 for the proposition that "'[t]he right of access to the courts is an

aspect of the First Amendment right to petition the Government for redress of

grievances,'" the Leon court observed that "[a] general ban on being present at any

courthouse or court proceeding, except when scheduled for a hearing or subpoenaed as a

witness, may impinge upon a host of constitutional rights." (Leon, at p. 952.) The

appellate court in Leon also observed that "[t]here can be a variety of legitimate reasons

for being at a court proceeding, other than to intimidate or threaten a party or witness.

For example, defendant may need to file a document regarding a family matter or he

may, as a member of the public, wish to observe a newsworthy trial not involving a gang

member or himself." (Id. at p. 953.)

       In People v. Perez (2009) 176 Cal.App.4th 380 (Perez), the appellate court held

unconstitutionally overbroad a condition that prohibited the probationer from attending

any court hearing or being "within 500 feet of any Court in which [he] is neither a

defendant nor under subpoena." (Id. at pp. 382, 385.) The Perez court struck the

                                             13
condition, as it "impose[d] unnecessary restrictions on [the probationer's] right to access

the courts and government offices" and prevented him from "filing or appearing in a civil

action or voluntarily testifying in a case in which he has not been subpoenaed." (Id. at p.

385.) However, the Perez court did not attempt to fashion a condition free of the

constitutional infirmities it identified; rather, it struck the offending condition and

remanded the matter with the observation that the trial court might "impose a narrower

condition if it deems necessary." (Id. at p. 386.)

       More recently, in In re E.O., supra, 188 Cal.App.4th 1149, the Court of Appeal

held unconstitutionally overbroad a condition that prohibited the juvenile probationer

from "knowingly com[ing] within 25 feet of a Courthouse when the minor knows there

are criminal or juvenile proceedings occurring which involve[] anyone the minor knows

to be a gang member or where the minor knows a witness or victim of gang-related

activity will be present, unless the minor is a party in the action or subpoenaed as a

witness or needs access to the area for a legitimate purpose or has prior permission from

his Probation Officer." (Id. at p. 1152.) The In re E.O. court observed that the condition

"unnecessarily infringe[d]" upon the probationer's "specific right under the state

Constitution to attend and participate in court proceedings if he or a family member is a

victim of a crime;" and it would also "prevent him from testifying voluntarily or

addressing the court in a setting, such as a sentencing hearing, where comments from

members of the public might be received. (Id. at p. 1155.)

       The conclusions and observations in Leon, Perez, and In re E.O., apply equally in

this case. Accordingly, we conclude we must strike the restricted court access condition

                                              14
and remand the matter to the juvenile court to fashion a narrower condition if the court

continues to find the condition necessary. (See Perez, supra, 176 Cal.App.4th at p. 386.)

                                     DISPOSITION

       We modify the judgment by striking the probation condition prohibiting "ALL

ONLINE COMMERCE."

       We also modify the judgment by striking the probation condition prohibiting

Elizabeth from using a computer "for any purpose other than school related assignments,"

and we modify that condition to state: "The minor is not to use a computer for any

purpose other than school-related assignments, except as her probation officer may from

time to time reasonably permit for legitimate work or personal purposes by a written

notice delivered to the minor, his parents, and other adults supervising his computer use."

We affirm the related probation condition that states: "The minor is to be supervised

when using a computer in the common area of [her] residence or in a school setting."

       We further modify the judgment by striking the probation condition prohibiting

Elizabeth from "be[ing] in any privately owned vehicle with more than one person under

the age of 18 unless accompanied by a parent or legal guardian, or with permission of the

Probation Officer," and we remand the matter to the trial court with directions to modify

the restricted driving condition to include a knowledge requirement.

       We also modify the judgment by striking the probation condition prohibiting

Elizabeth from "appear[ing] in Court or any courthouse unless [she is] a party or witness

in the proceedings, or with permission of the Probation Officer," and we



                                            15
remand the matter to the trial court with directions to the juvenile court to fashion a

narrower condition if the juvenile court finds the condition is still necessary. In all other

respects, we affirm the juvenile court's judgment.


                                           NARES, J.

WE CONCUR:


HUFFMAN, Acting P. J.


McDONALD, J.




                                             16
