Filed 2/26/15 In re C.R. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

In re C.R., a Person Coming Under the                                H040753
Juvenile Court Law.                                                 (Monterey County
                                                                     Super. Ct. No. J46598)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

C.R.,

         Defendant and Appellant.


         The juvenile court found true the allegations that C.R. (minor) possessed metal
knuckles in violation of Penal Code section 21810. Minor was declared a ward of the
court for 12 months and was granted probation subject to various terms and conditions.
On appeal, minor argues the juvenile court erred in denying his motion to suppress. He
also argues the probation condition prohibiting him from going to gang gathering areas
and participating in gang activities is impermissibly vague. We modify minor’s
probation condition and affirm the order.
                              FACTUAL AND PROCEDURAL BACKGROUND
         The Offense and Search
         Hugo Silva was a campus supervisor for King City High School. He had been
employed at the school for approximately 14 years. As part of his duties, he ensured
students went to class and stopped students from fighting. Silva was trained to look for
suspicious behaviors. He knew there was an area on campus (the “Norteno Tree”) where
students associated with the Norteno gang congregated.
       On January 24, 2014, Silva was on campus at the high school near the Norteno
Tree at around 3:00 p.m. Silva saw minor standing near the tree with approximately 10
or 15 other students. Minor was holding his backpack on his shoulder, which Silva
thought was suspicious, because students usually carry backpacks on their backs. Minor
did not have the backpack’s straps over his arms.
       Silva walked towards minor. Minor appeared nervous and was looking around in
all directions. As Silva approached, minor placed the backpack onto the ground near his
feet. Silva asked minor if he had anything in his backpack, and minor responded “no.”
Minor adjusted his clothes, and Silva took the backpack and searched it. Silva did not
ask minor for his permission to search the backpack.1 Silva found metal knuckles, which
he confiscated.
       Procedural History
       On January 28, 2014, a juvenile wardship petition was filed charging minor with
possession of metal knuckles (Pen. Code, § 21810).
       Subsequently, minor filed a motion to suppress the evidence pursuant to Welfare
and Institutions Code section 700.1. He argued the search of his backpack violated his
Fourth Amendment rights.
       After a hearing, the juvenile court denied minor’s motion. The court applied the
two-prong test articulated in New Jersey v. T.L.O. (1985) 469 U.S. 325 (T.L.O.). First,
the juvenile court determined the search was justified at its inception, because Silva had a
reasonable suspicion that minor was violating school rules or the law. The court based its

       1
        Silva testified that the school’s student handbook stated that school
administrators had the right to search students’ backpacks “if they’re suspicious of
something [sic].”

                                             2
determination on several factors: (1) the Norteno tree was a “well-known hangout for the
Norteno gang members,” (2) Silva had 14 years of experience at the school and was
familiar with the students and knew which ones were aligned with the Norteno gang, (3)
minor was holding the backpack in an unusual manner, and (4) minor was “looking
around” nervously. Considering the totality of the circumstances, the juvenile court
concluded Silva had a “reasonable suspicion that there was something going on with this
particular minor.”
       The court also found that the search of the backpack was not intrusive, because the
backpack was on the ground next to minor’s feet. Therefore, minor was not forced to
give up the backpack, and Silva was not required to physically take the backpack off of
him.
       Minor admitted the charge alleged in the petition that same day. A month later,
the juvenile court declared minor a ward of the court for 12 months and placed him on
probation. The court imposed various terms and conditions, including a gang condition
that stated: “You shall not visit or remain in any SPECIFIC locations known by you to
be identified as gang gathering areas, areas where gang members or associates are
congregating or areas specified by your Probation Officer as involving gang related
activity, nor shall you participate in any gang activity.”2 Minor appealed.
                                       DISCUSSION
   1. Motion to Suppress
       Minor argues the juvenile court erred when it denied his motion to suppress,
because the search of his backpack violated his constitutional rights. We disagree.



       2
         During the dispositional hearing, the court imposed the probation conditions as
recommended by the probation department, modifying several of the conditions in the
process.

                                             3
       Our review of a ruling on a motion to suppress in a juvenile court proceeding is
the same as our review of a motion to suppress in an adult criminal proceeding. We defer
to the trial court’s factual findings when supported by substantial evidence. (People v.
Camacho (2000) 23 Cal.4th 824, 830.) We then exercise our independent judgment to
determine if the facts found by the juvenile court support its determination that the search
was reasonable under the Fourth Amendment. (Ibid.)
       “The Fourth Amendment protects students on a public school campus against
unreasonable searches and seizures. [Citations.] However, strict application of the
principles of the Fourth Amendment as used in criminal law enforcement matters does
not appropriately fit the circumstances of the operation of the public schools. The need to
maintain discipline, provide a safe environment for learning and prevent the harmful
impact on the students and staff of drugs and weapons cannot be denied.” (In re Sean A.
(2010) 191 Cal.App.4th 182, 186.) “[T]he privacy interests of schoolchildren . . . do[]
not require strict adherence to the requirement that searches be based on probable cause
to believe that the subject of the search has violated or is violating the law. Rather, the
legality of a search of a student should depend simply on the reasonableness, under all
circumstances, of the search.” (T.L.O., supra, 469 U.S. at p. 341.)
       “Determining the reasonableness of a search is a two-fold inquiry: (1) whether the
search was justified at its inception, and (2) whether the scope of the search, as actually
conducted, was reasonably related to the circumstances that justified the initial search.”
(In re Lisa G. (2004) 125 Cal.App.4th 801, 805.) Membership in a criminal street gang,
by itself, does not permit a detention. (People v. Rodriguez (1993) 21 Cal.App.4th 232,
239.) Although “a person cannot be detained for mere presence in a high crime area
without more [citations], this setting is a factor that can lend meaning to the person’s
behavior.” (People v. Limon (1993) 17 Cal.App.4th 524, 532.) “[N]ervous, evasive



                                              4
behavior is a pertinent factor in determining reasonable suspicion.” (Illinois v. Wardlow
(2000) 528 U.S. 119, 124.)
       Minor argues Silva’s search of his backpack was not justified at its inception,
because Silva lacked reasonable grounds for suspecting he had violated or was violating
the law or school rules. Minor insists In re William G. (1985) 40 Cal.3d 550 (William G.)
is analogous to his case.3
       In William G., a school administrator saw William and two other students walking
through the center of campus. (William G., supra, 40 Cal.3d at p. 555.) The school
administrator noticed William was carrying a small vinyl calculator case, which had an
“odd-looking bulge.” (Ibid.) The school administrator asked the students where they
were going and why they were late for class. (Ibid.) As he was speaking to the students,
William placed the calculator case “in a palmlike gesture to his side and then behind his
back.” (Ibid.) When asked what was in his hand, William replied, “ ‘Nothing.’ ” (Ibid.)
The school administrator attempted to see the case, and William told him he needed to
get a warrant. (Ibid.) William was taken to the school administrator’s office, and after
“repeated unsuccessful efforts to convince William to hand over the case, [the school
administrator] forcefully took and unzipped it.” (Ibid.) Inside the case were four baggies
of marijuana, a small metal gram weight scale, and some cigarette papers. (Ibid.)


       3
         “Because the search in William G. occurred before the passage of Proposition 8,
which amended the California Constitution in 1982 [citation], the William G. court rested
its decision on both state and federal law.” (In re K.S. (2010) 183 Cal.App.4th 72, 78, fn.
3.) Therefore, the People claim that William G. is not binding authority, since the court
rested its decision in part on independent state grounds. As the People note, we are
“bound to follow ‘the Supreme Court’s modern Fourth Amendment jurisprudence.’ ”
(People v. McKay (2002) 27 Cal.4th 601, 608, fn. 2.) However, the majority in William
G. found its decision “consistent” with the standard set forth by the Supreme Court in
T.L.O., supra, 469 U.S. 325. (William G., supra, 40 Cal.3d at p. 564; In re K.S., supra, at
p. 78.) Accordingly, we reject the People’s contention that William G. is not good law.

                                             5
       Our Supreme Court concluded the search of William’s calculator case was illegal.
The school administrator had not articulated any facts to support a “reasonable suspicion
that William was engaged in a proscribed activity justifying a search. The record
reflect[ed] a complete lack of any prior knowledge or information on the part of [the
school administrator] relating William to the possession, use, or sale of illegal drugs or
other contraband.” (William G., supra, 40 Cal.3d at p. 566.) The William G. court
further noted that “William’s ‘furtive gestures’ in attempting to hide his calculator case
from [the school administrator’s] view [could not], standing alone, furnish sufficient
cause to search. [Citations.] Similarly, William’s demand for a warrant did not create a
reasonable suspicion upon which to base the search.” (Id. at p. 567.)
       William G. is distinguishable. Unlike the minor in William G., minor’s furtive
gestures were not the only circumstances that triggered Silva’s suspicions. Silva testified
during the suppression hearing that (1) minor was near an area on campus that was an
established gathering area of Norteno gang members (the Norteno tree), (2) minor was
holding the backpack in an unusual manner, (3) minor appeared nervous and was looking
in all directions, (4) when Silva approached, minor placed the backpack on the ground,
and (5) minor said he did not have anything in the backpack. Taken alone, these
circumstances would not have individually supported a reasonable suspicion that minor
may be violating the law. However, when viewed together the circumstances are
sufficient to support the trial court’s determination that the search was justified at its
inception.4

       4
         In their reply brief, the People asserted the search was also reasonable because a
school policy set forth in the student handbook states that students’ backpacks may be
searched if there is a reasonable suspicion they are violating rules. Therefore, the People
argued this policy “lowered the expectation of privacy that the student might otherwise
have held.” (In re Cody S. (2004) 121 Cal.App.4th 86, 93.) Here, the school policy did
not state that students would be subject to suspicionless searches; Silva testified that the
(continued)
                                               6
       Indeed, as articulated by the trial court, the factual circumstances of this case are
similar to those contemplated in In re Bobby B. (1985) 172 Cal.App.3d 377 (Bobby B.).
In Bobby B., a school administrator saw two students, Bobby and another boy, in a school
restroom when they were supposed to be in class. (Id. at p. 380.) Neither boy was able
to provide the administrator with a school pass before the search, the administrator was
aware of marijuana activity within the restroom, and Bobby appeared to be nervous.
(Ibid.) The administrator asked Bobby to empty his pockets, and after a search he found
two cigarettes that appeared to contain marijuana and a bindle that was stipulated to
contain a gram of cocaine. (Ibid.) Bobby moved to suppress evidence, which the trial
court denied. Relying on T.L.O., supra, 469 U.S. 325, the appellate court determined that
the search was justified at its inception. (Bobby B., supra, at p. 382.)
       Like in Bobby B., there were multiple circumstances that justified Silva’s search of
minor’s backpack. As explained above, Silva did not simply rely on minor’s furtive
gestures.5 Therefore, we conclude the trial court did not err when it denied minor’s
motion to suppress.


policy allowed for searches of a student’s backpack if there were suspicions the student
was violating the rules. Therefore, our analysis still turns on whether there was a
reasonable suspicion to justify the search under the circumstances. Furthermore, the
issue of whether minor’s expectation of privacy was diminished due to this policy is of
no moment, because we conclude the warrantless search of minor’s backpack was
justified under the relevant Fourth Amendment jurisprudence.
        5
          Minor argues that “[t]o the extent Bobby B. conflicts with William G., it is also
worth noting that the Court of Appeal in Bobby B. did not have the benefit of the
Supreme Court’s guidance in William G., as the latter was decided several months after
Bobby B.” While minor is correct that Bobby B. was decided before William G., we do
not find the cases are in conflict. William G. held that a minor’s furtive gestures--
standing alone--could not justify a search. (William G., supra, 40 Cal.3d at p. 566.) As
stated in Bobby B., there were several circumstances that justified the administrator’s
search, which was not based solely on Bobby’s nervous demeanor. (Bobby B., supra,
172 Cal.App.3d at p. 382.)

                                              7
   2. Probation Condition
       Next, minor challenges the probation condition that states: “You shall not visit or
remain in any SPECIFIC locations known by you to be identified as gang gathering
areas, areas where gang members or associates are congregating or areas specified by
your Probation Officer as involving gang related activity, nor shall you participate in any
gang activity.” Minor claims the condition requires modification because it does not
provide him fair notice of what activity is prohibited since the phrases “areas where gang
members or associates are congregating” and “gang activity” are vague. He also insists
the condition requires an express knowledge requirement to render it constitutional.
       “A court of appeal may review the constitutionality of a probation condition, even
when it has not been challenged in the trial court, if the question can be resolved as a
matter of law without reference to the sentencing record. (In re Sheena K. (2007) 40
Cal.4th 875, 888-889 (Sheena K.).) Our review of such a question is de novo.” (People
v. Pirali (2013) 217 Cal.App.4th 1341, 1345.)
       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “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.” (Ibid.) That is, the defendant must know in
advance when he may be in violation of the condition. “[T]he law has no legitimate
interest in punishing an innocent citizen who has no knowledge” that he or she may be
violating a probation condition. (People v. Freitas (2009) 179 Cal.App.4th 747, 752.)
       First, we address minor’s arguments regarding the first part of the challenged
condition, which prohibits him from visiting or remaining in specific locations known to
him to be gang gathering areas or areas of gang activity.



                                              8
       Defendant argues this court’s decision in In re H.C. (2009) 175 Cal.App.4th 1067
requires modification of his probation condition. The minor in H.C. objected to a
condition requiring him to “ ‘not frequent any areas of gang related activity and not
participate in any gang activity.’ ” (Id. at p. 1072.) This court found two areas of
vagueness in this condition. First, we concluded that the word “ ‘frequent’ ” would be
“especially challenging to understand” and noted that from plain wording of the condition
“the minor would not violate the condition with one or two visits, yet we glean from the
record that the trial court intended the minor not to visit such areas at all.” (Ibid.)
Second, we reasoned “[a]n area with ‘gang related activity’ might be, in some instances,
an entire district or town. It would be altogether preferable to name the actual geographic
area that would be prohibited to the minor and then to except from that certain kinds of
travel, that is, to school or to work. At the very least, the condition . . . should be revised
to say that the minor should not visit any area known to him to be a place of gang-related
activity.” (Ibid.) We then remanded the case to the trial court so it could more closely
tailor the condition to be consistent with In re Sheena K., supra, 40 Cal.4th at page 890.
       H.C. does not stand for the proposition that the phrase “areas of gang related
activity” is inherently unconstitutionally vague or overbroad. Although this court noted it
would be preferable if the trial court listed specific geographic areas the minor was to
avoid, we also concluded that inclusion of a knowledge requirement would sufficiently
provide the minor notice about what specific locations are prohibited.
       Consistent with the reasoning set forth in H.C., this court has modified similar
probation conditions to include a scienter element. In People v. Leon (2010) 181
Cal.App.4th 943, we modified a condition that stated “ ‘You’re not to frequent any areas
of gang-related activity’ ” to “ ‘You are not to visit or remain in any specific location
which you know to be or which the probation officer informs you is an area of criminal-
street-gang-related activity.’ ” (Id. at p. 952.)

                                               9
       Similarly, in People v. Barajas (2011) 198 Cal.App.4th 748, we concluded that no
modification was necessary to a challenged probation condition that stated: “ ‘You’re not
to visit or remain in any specific location which you know to be or which the probation
officer informs you to be an area of criminal street gang-related activity.’ ” (Id. at p.
754.) We determined the condition was not impermissibly vague because “[t]he
knowledge condition suffices to give defendant fair warning of what areas to avoid and
ensures that he will not be found in violation due to a factual mistake, accident, or
misfortune.” (Id. at p. 760.)
       The reasoning set forth in Barajas applies here. We are confident the requirement
that minor refrain from remaining in or visiting specific locations either known to him to
be gang gathering areas, or those places that are specified by his probation officer to be
gang gathering areas, will give minor sufficient warning of prohibited places. The
inclusion of the phrase “areas where gang members or associates are congregating” does
not render the condition unconstitutional.
       Furthermore, we reject minor’s contention that this clause lacks a knowledge
requirement. The condition states the minor is prohibited from “visit[ing] or remain[ing]
in any SPECIFIC locations known by you to be identified as gang gathering areas, areas
where gang members or associates are congregating or areas specified by your Probation
Officer as involving gang related activity . . . .” (Italics added.) Indeed, the phrase
“locations known by you” must be interpreted as modifying all of the subsequent area
descriptions, including “gang gathering areas,” “areas where gang members or associates
are congregating,” and “areas specified by your Probation Officer as involving gang
related activity.” Accordingly, each location minor is required to refrain from remaining
or visiting is subject to an express knowledge requirement, and we are satisfied that this




                                              10
language would prevent minor from mistakenly violating the condition due to a factual
mistake.6
       However, we do find one area of vagueness. The term “gang” was not defined by
the juvenile court in the challenged condition. “Although ‘gang’ has in the recent past
likely acquired generally sinister implications, the word has considerable benign
connotations.” (People v. Lopez (1998) 66 Cal.App.4th 615, 631 (Lopez).) But in the
context of a criminal probation condition, “it is apparent the word was intended to apply
only to associations which have for their purpose the commission of crimes.” (Id. at p.
632.) Nonetheless, in order to alleviate potential concerns over vagueness, we modify the
challenged condition to expressly refer to the statutory definition of a “criminal street
gang” in Penal Code section 186.22, subdivision (f). (Lopez, supra, at pp. 632-634, 638.)
       Next, we address minor’s argument that the second part of the challenged
condition, which prohibits him from participating in gang activity, requires modification.
Minor argues the condition must be modified to provide him notice as to what would be
construed as a “gang activity.” We disagree.
       In the context of the probation condition at issue, the phrase “gang activity” is
reasonably understood to be activity conducted for the benefit of, at the direction of, or in
association with a criminal street gang. (See People ex rel. Gallo v. Acuna (1997) 14
Cal.4th 1090, 1116-1117 [when considered in context, language in a probation condition


       6
         In his reply brief, minor suggests the condition be modified so minor is
prohibited from “knowingly go[ing] to ‘areas where gang members or associates are
gathering.’ ” However, this portion of the condition already contains an express
knowledge requirement--that minor may not visit or remain in specific places known to
him to be identified as related to gang activity--the addition of a second knowledge
requirement is unnecessary. The language of the condition already makes it clear that
minor does not violate the condition if he unwittingly passes through a location with gang
activity. He would only be violating the condition if he visited or remained in the
proscribed locations, which he must affirmatively know are prohibited areas.

                                             11
may have “constitutionally sufficient concreteness”]; Pen. Code, § 186.22.) Accordingly,
no modification is necessary to render the term “gang activity” sufficiently precise. We
do not believe the term is susceptible to an interpretation that would prohibit minor from
engaging in lawful activities that merely have other gang members in attendance.
       However, minor insists in his reply brief that at the very least, the condition should
be modified to include a knowledge requirement so minor would be prohibited from
“knowingly ‘participat[ing] in gang activity.’ ” Although we find it unlikely that a
probation officer would deem passive conduct to be a violation of this condition, out of
an abundance of caution we will modify the condition to include an express knowledge
requirement. This will provide minor with clear notice as to what conduct will constitute
a violation of his probation. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
                                       DISPOSITION
       The challenged probation condition is modified to read: “You shall not visit or
remain in any SPECIFIC locations known by you to be identified as gang gathering
areas, areas where gang members or associates are congregating or areas specified by
your Probation Officer as involving gang related activity, nor shall you knowingly
participate in any gang activity. For purposes of this condition, ‘gang’ refers to a
criminal street gang as defined by Penal Code section 186.22, subdivision (f).”
       As modified, the order is affirmed.




                                             12
                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
