IN RE: HECTOR G. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS AND PROCEDURAL HISTORY

This is an appeal from a dispositional order entered after the juvenile court found that the minor, appellant Hector G., had violated the terms of probation previously imposed upon him.   We find insufficient evidence to support that finding and therefore reverse the adjudication and dispositional order.

In 2007, appellant Hector G., then 14 years old, admitted the allegation of a petition filed under Welfare and Institutions Code section 602, that he possessed a deadly weapon to further and assist in criminal conduct by a criminal street gang, in violation of Penal Code section 186.22, subdivision (d).  The juvenile court adjudicated him a ward of the court.   Terms of probation were imposed and he was committed to the juvenile center for a period of “no less than 30 days.”

For the next two and a half years, appellant repeatedly violated the terms of his probation and was committed to various Kings County juvenile institutions for various periods of time.

On April 13, 2010, the probation officer filed a notice of hearing alleging that appellant had violated his probation.   Among the operative terms of appellant's probation was a requirement that he not associate “with any known criminal gang members as identified by the probation officer.”   The notice of hearing alleged as follows:

“On February 25, 2010, the undersigned officer contacted the minor on Madera/7 th Street in Avenal.   The minor was walking with an individual who was wearing red gang related paraphernalia.   The minor was admonished and released.

“On February 26, 2010, Deputy Thomas from the Kings County Sheriff's Department contacted the minor.   The minor was again walking with an individual who was wearing red gang related clothing.

“On April 7, 2010, the minor submitted a drug test that showed presumptive positive for marijuana.

“On April 9, 2010, the undersigned officer located the minor at the residence of Agustin [sic ] V, who is a registered northern gang member pursuant to 186.30 PC. Agustin [sic ] V is also on felony probation supervision in Kings County.

“On April 11, 2010, Deputy Machado of the Kings County Sheriff's Department contacted the minor during a traffic stop.   The minor was found to be with gang members, was under the influence of alcohol, gave false information to Deputy Machado, and was in possession of marijuana.   The minor attempted to eat the marijuana during the arrest in an attempt to destroy evidence.   The minor was subsequently booked into the Kings Juvenile Center.  (Case # 3–10–000251)”

At the contested probation violation hearing, the witness to the April 11, 2010, incident was unavailable, no evidence was presented concerning that incident, and the juvenile court struck that allegation.   In addition, the juvenile court excluded the evidence proffered by the People relating to the April 7, 2010, drug test.   Appellant did not present any evidence.

Appellant's counsel argued that no evidence had been presented that appellant knew that any of the persons he was with were gang members or that any of them had been identified to him as such by a probation officer.   In addition, there was no evidence that appellant had tested positive for marijuana.

The juvenile court found that appellant was “in violation of his probation as set forth in the report of a violation of probation filed with the Court ․ minus the last paragraph, which has been stricken.”   At the dispositional hearing two weeks later, summarizing appellant's violations, the juvenile court included the positive marijuana test as one of the violations.   When the minor stated “[t]hey never told me they were gang members, sir,” the juvenile court responded:  “If you don't know Augustine is a gang banger something's wrong with you.   Avenal is a small town every banger knows every other banger in town.  [¶] And, you didn't know that the red was gang insignia?”   The juvenile court readjudged appellant a ward of the court, committed him “to the Kings County Juvenile Academy Program for a period not to exceed one year but no less than 45 days,” and imposed conditions of probation including the requirement that appellant “not ․ associate with any known criminal street gang members as identified by the probation officer or that he knows is a criminal street gang member.”  (The italicized phrase was not included in the printed conditions of probation attached to the minute order of the dispositional hearing.)

DISCUSSION

Appellant raises two issues on appeal.   First, he contends there is insufficient evidence to support the finding that he violated the terms and conditions of his probation.   Second, he asserts that the condition limiting his association with gang members is unconstitutionally vague and overbroad.   As to the second point, appellant requests that we modify the condition “to include a personal knowledge requirement to cure the defect.”   Respondent concurs that the condition is unconstitutionally vague and that we should modify the condition.

First, there was no evidence admitted at the hearing concerning appellant's use of marijuana or his submission of a urine sample that tested positive for marijuana use.   The evidence was, therefore, insufficient to support that finding.

Second, the evidence was insufficient to support a finding that appellant associated “with any known criminal gang member as identified by the probation officer.”   We have reviewed the reporter's transcript of the probation violation hearing.

On February 25, 2010, deputy probation officer Barry Rambonga saw appellant and five or six other males walking down the street.   Another person “was walking up [to them], he was wearing a red hat and also had on a red shirt.”   Rambonga intervened and told the group to “keep walking.”   He took appellant aside and told him not to associate with individuals wearing the gang color red;  appellant asked if he “was allowed to go to his grandmother's house” and was permitted to do so.   Rambonga “found out after the contact” from a deputy sheriff that the person in the red hat was a known gang member.

On February 26, 2010, deputy sheriff Jessica Thomas saw appellant and another person walking across the parking lot of the local high school during school hours.   She knew the other person to be an admitted gang member.   Thomas stopped appellant and “talked to him regarding where he was going and what he was doing,” but she did not discuss with him the fact that he was with a gang member.   Thomas said appellant “told me he was on his way home from school.   And, I explained to him that he needed to walk around the high school not through the parking lot.”

On April 9, 2010, Rambonga went to an apartment “to conduct a probation contact on Augustine.”   Appellant was also at the apartment, along with Augustine's sister and two small children.   Augustine was not wearing gang clothing.   Rambonga “advised [appellant] that Augustine is on felony probation and a registered gang member and he's not to have any association with him while [appellant] was on probation.   And, [appellant] was instructed to leave the residence, which he complied with.”

In each of these three instances of “association” with gang members, a deputy sheriff or a deputy probation officer encountered appellant in the presence of a gang member, appellant was told to leave, and appellant did so.   On each occasion, appellant was with a different person.   There was no evidence anyone ever told appellant to stay away from that person previously or that appellant was ever seen with that individual again.

“A probation condition is subject to the [Fourteenth Amendment] ‘void for vagueness' doctrine, and thus ‘must be sufficiently precise for the probationer to know what is required of him․’  [Citations.]”  (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)   The reverse is also true:  When a probation condition specifies what conduct is prohibited, it is that conduct, not some other conduct, that is prohibited.   Here, the probation condition appellant is alleged to have violated was that he must not associate “with any known criminal gang member as identified by the probation officer.”   There was no evidence presented to the juvenile court that appellant associated with any person after he was instructed not to do so by the probation officer.

It appears that the juvenile court interpreted the condition of probation as forbidding appellant from associating with any person known to appellant to be a gang member.   That, however, was not the condition—as the juvenile court made clear by adding that very condition when it orally re-imposed the condition of probation in the present proceeding.   It appears from our record that the written probation condition in this case is part of a standard form used by the juvenile court and probation department.   That form needs to be modified so that the “non-association” provision includes those persons known to the minor to be gang members, if the court intends the provision to reach beyond those persons specifically identified to the probationer by the probation officer.  (See People v. Lopez, supra, 66 Cal.App.4th at p. 628.) ¹

Our reversal of the May 4, 2010, adjudication of violation of probation does not, of course, discharge appellant from probation on the conditions previously imposed by the juvenile court in this matter.   It does, however, vacate the order of May 18, 2010, re-imposing conditions of probation as a result of the May 4 adjudication.   As a result, we decline the parties' invitation to modify those May 18 conditions of probation.   We leave it to the juvenile court on remand to determine whether the minor's rehabilitation requires

modification of the conditions imposed in earlier proceedings to include a broader class of persons appellant must avoid.

DISPOSITION

The adjudication of May 4, 2010, and the dispositional order of May 18, 2010, are reversed.

FOOTNOTES

FN1. This is not a case like People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117, in which a “knowledge” requirement can be implied to limit the reach of a condition that is otherwise too vague.   Instead, the court's imposition of a “knowledge” requirement in the present case expanded the reach of the condition beyond the scope of its stated terms so as to include a wholly new set of persons appellant had to avoid—not only those persons designated by the probation officer but, additionally, anyone appellant knew to be a gang member.   While there is nothing inherently wrong with that expanded prohibition, it is not the prohibition that had been imposed on appellant in the present case..  FN1. This is not a case like People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117, in which a “knowledge” requirement can be implied to limit the reach of a condition that is otherwise too vague.   Instead, the court's imposition of a “knowledge” requirement in the present case expanded the reach of the condition beyond the scope of its stated terms so as to include a wholly new set of persons appellant had to avoid—not only those persons designated by the probation officer but, additionally, anyone appellant knew to be a gang member.   While there is nothing inherently wrong with that expanded prohibition, it is not the prohibition that had been imposed on appellant in the present case.

THE COURT