PEOPLE EX REL GALLO v. ACUNA (1995)

The City of San Jose has added a new weapon to its arsenal in the war against gangs;  an injunction, based on public nuisance law, to abate gang activity in a four-block neighborhood.   We are asked in this case to determine the constitutionality of the injunction.   We conclude that, insofar as this injunction reaches no further than the Constitution allows, it can properly be used to abate gang-related criminal activity as a public nuisance.   We also conclude that the STEP Act (The California Street Terrorism Enforcement and Prevention Act, Pen.Code, § 186.22, et seq.) is not at issue here.   We will therefore modify the injunction's provisions to delete those constitutionally offensive portions, and, as modified, affirm its validity.

The underlying facts are these:  In 1992, two “Sureno” street gangs, Varrio Sureno Loco (VSL) and Varrio Sureno Treces, or Varrio Sureno Town (VST), considered a four-block area of San Jose known as Rocksprings to be their turf, or barrio.   Although gang members did not live in this neighborhood, they would congregate there, marking their territory with graffiti, socializing and “partying” at all hours of the day and night, and engaging, despite law enforcement efforts, in almost constant drug dealing activity.   Neighborhood residents were often too intimidated to leave their homes, and, fearing retaliation, often failed to report crimes to the police.

In response, respondent City of San Jose filed a complaint, on February 26, 1993, seeking preliminary and permanent injunctive relief against 38 named and 100 unnamed defendants, all of whom it had purportedly “validated” as members of VSL or VST.   Twenty four of these defendants were served with copies of the summons and complaint.   On this same date the trial court issued a temporary restraining order and an order to show cause, setting a hearing for March 10.   Five defendants appeared at this hearing.   The court issued a preliminary injunction against those defendants who had not appeared, and left the TRO standing against those defendants who had contested the preliminary injunction.   On May 28, 1993, six defendants moved to vacate the preliminary injunction.   These six defendants, in addition to the five who appeared to contest the injunction, are the appellants here.

On June 28, 1993, following a hearing, the trial court issued an order authorizing a preliminary injunction against the five defendants who contested the preliminary injunction, denying the six defendants' motion to vacate the injunction, and providing that the injunction would expire in one year or upon the grant or denial of a permanent injunction.¹  Appellants filed a timely notice of appeal on August 27, 1993.

Appellants challenge the power of the trial court to issue an injunction they claim is unauthorized either by the STEP Act or by civil nuisance law.   They also argue the injunction is an impermissible prior restraint on their First Amendment rights of speech and association, and is unconstitutionally vague and overbroad.   We will examine these arguments seriatim.

I. The STEP Act

 Appellants first argue that the STEP Act (Act), was the true basis on which respondent and the trial court relied for this injunction, but that such an injunction is not authorized by the statute, which cannot enjoin street gang activity of the kind, or in the area described in the complaint.   They also contend the Act was intended to preempt the general nuisance and injunction provisions of the Civil Code and the Code of Civil Procedure and that, since it was enacted recently, and the public nuisance law was enacted in 1872, the more recently enacted law should be given governing effect.   In addition, they argue that the use of the STEP Act was constitutionally impermissible as infringing on their freedom of association.   Last, they contend that even if the STEP Act applies, respondent failed to show that each defendant committed one of the felonies referred to in Penal Code section 186.22a.

Respondent does not argue that the STEP Act authorizes the injunction.   It contends instead that it used the definitions in the Act to demonstrate the propriety of the injunction, but based its complaint only on public nuisance law.   We need not, therefore, reach the issue of the Act's applicability.   Even if, as appellants suggest, the trial court relied on the Act in error, its decision may nonetheless be affirmed.   We will uphold a judgment if it is correct for any reason “ ‘regardless of the correctness of [its] grounds․'  ‘It is judicial action and not judicial reasoning which is the subject of review․’ ”  (United Pacific Ins. Co. v. Hanover Ins. Co. (1990) 217 Cal.App.3d 925, 933, 266 Cal.Rptr. 231;  9 Witkin, Cal.Procedure (3d ed. 1985), § 259, p. 266.)

 Neither do we agree that the STEP Act is the exclusive means of enjoining street gang activity.   Appellants rely on the principles of statutory construction in support of this argument, but we need look no further than the language of the Act to make this determination.  (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238, 8 Cal.Rptr.2d 298.)   In examining statutory language, courts are to give the words their ordinary, everyday meaning.  (Ibid.)  If the meaning is unambiguous, the language controls.  (Id. at p. 1239, 8 Cal.Rptr.2d 298.)  Penal Code section 186.22a, subdivision (d) provides that “Nothing in this chapter shall preclude any aggrieved person from seeking any other remedy provided by law.”   This plain language expressly contemplates the use of any other applicable means, statutory or otherwise, to abate gang activity.   Nothing in the Act prohibits other statutory or common law remedies from being utilized.   And as we shall see, public nuisance law provides an available alternative.

II. Public Nuisance Law

 To view the injunction's use of public nuisance law in context, we first examine its genesis.   Dean Prosser, in the Restatement of Torts, Second, encapsulates its history as follows:  At common law, “public nuisance” described a large and diverse group of minor criminal offenses, all interfering with the interests of the community at large;  public health, public safety, public morals, public peace and public comfort.   These interferences were so unreasonable as to constitute crimes, in addition to constituting torts.   Most states have since enacted statutes providing criminal penalties for public nuisance without defining the term with any, or much specificity, in addition to enacting statutes declaring specific “conduct or conditions” to be public nuisances.  (Rest.2d, § 821B, at pp. 87–92;  see also, e.g., CEEED v. California Coastal Zone Conservation Com. (1974) 43 Cal.App.3d 306, 118 Cal.Rptr. 315.)

 “[A] public nuisance is always a criminal offense․  [A]ny conduct that is found to be a public nuisance is for that reason a criminal offense, either at common law or under statute.”  (Rest.2d Torts, supra, § 821B, p. 89.)   Conduct becomes a public nuisance when there is an interference with a right common to all members of the public.  (Rest.2d Torts, supra;  Prosser & Keeton, Torts (5th ed.1984), §§ 86 at p. 618 and 90 at pp. 643–646;  see also Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100, fn. 4, 253 Cal.Rptr. 470.)

In California, Penal Code section 370, enacted in 1872, defines a public nuisance as “Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, ․”  Civil Code section 3480 defines a public nuisance as “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”  (See also Venuto v. Owens–Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 99 Cal.Rptr. 350.)

Historically, the remedies for a public nuisance were prosecution as a criminal offense, or a suit brought on behalf of the state or public authority to abate or enjoin the nuisance.  (Rest.2d, § 821C, at p. 94.)  Civil Code section 3494, authorizes “any public body or officer” to abate a public nuisance.  (See People v. Wheeler (1973) 30 Cal.App.3d 282, 106 Cal.Rptr. 260.)  Civil Code section 3491, defines the statutory remedies for a public nuisance in California as indictment or information, a civil action, or abatement.

Both California statutory and common law definitions of public nuisance law, and the remedies for such a nuisance, thus appear to be applicable to abate the criminal activity which was interfering with the Rocksprings' residents' use and enjoyment of their homes and streets.   Thus, those provisions in the injunction which enjoin only criminal conduct—its prohibitions on drinking, using drugs, fighting, vandalism, trespassing, blocking ingress and egress, discharging firearms, demanding entry, littering, and urinating and defecating in public (paragraphs (b), (d), (f), (g), (h), (j), (p), (t), and (u))—may appropriately be enjoined under public nuisance law.

III. Constitutionality

 Having concluded that the criminal conduct in the injunction is properly prohibited under public nuisance law, we turn to the other provisions of the injunction to determine if they survive constitutional scrutiny.²  Appellants contend that the injunction imposes an impermissible burden on First Amendment rights;  that it is overbroad;  and that it is vague.   Since “[t]he California public nuisance statutes must be enforced in such a way as to operate in a constitutional fashion” (People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600, cert. den. sub nom., Van de Kamp v. Projection Room Theater (1976) 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289), we will examine the injunction's provisions to determine if they accord with constitutional guarantees.³

A. First Amendment

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  (Texas v. Johnson (1989) 491 U.S. 397, 414, 109 S.Ct. 2533, 2545, 105 L.Ed.2d 342, citations omitted.)   This constitutional principle is so tightly woven into the fabric of our national identity that, as Justice Brandeis observed over six decades ago, “Fear of serious injury cannot alone justify suppression of free speech and assembly.”  (Whitney v. California (1927) 274 U.S. 357, 376, 47 S.Ct. 641, 648, 71 L.Ed. 1095.)   Governmental interference with the right of free speech and expression cannot be condoned even when the wise listener would be moved to counsel the imprudent speaker to “[m]end your speech a little, lest you may mar your fortunes.”  (William Shakespeare, King Lear, Act I, Scene i, 1. 96.)

Hence, “The First Amendment generally prevents government from proscribing speech [citation], or even expressive conduct [citation], because of disapproval of the ideas expressed.   Content-based regulations are presumptively invalid.”  (R.A.V. v. City of St. Paul, Minnesota (1992) 505 U.S. 377, ––––, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 citations omitted;  Texas v. Johnson, supra, 491 U.S. at p. 414, 109 S.Ct. at p. 2545.)

 We must also be mindful, as the Supreme Court recently reiterated in Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, ––––, 114 S.Ct. 2516, 2524, 129 L.Ed.2d 593, of the important differences between an ordinance that criminalizes certain conduct and an injunction such as that before us.   As the Supreme Court noted, “[i]njunctions also carry greater risks of censorship and discriminatory application than do general ordinances,” and therefore require “somewhat more stringent application of general First Amendment principles.”  (Ibid.)  We proceed to review the injunction's provisions with these cautions in mind.

The injunction contains two provisions dealing specifically with speech and with expressive conduct.  (See, e.g., Clark v. Community for Creative Non–Violence (1984) 468 U.S. 288, 294, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 [“a message may be delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative.”])   It prohibits defendants from “(v) Using words, phrases, physical gestures, or symbols commonly known as hand signs or engaging in other forms of communication which describe or refer to the gang known as ‘VST’ or ‘VSL’ ․” and “(w) Wearing clothing which bears the name or letters of the gang known as ‘VST’ or ‘VSL’.”   Appellants argue these paragraphs impermissibly infringe on speech and expressive conduct.

 What respondent seeks to prevent in these two provisions is unequivocally content-related;  it is only the speech, symbols, gestures, and hand signs relating to two specific gangs.   The First Amendment strictly forbids such restrictions.  (Madsen, supra, 512 U.S. at p. ––––, 114 S.Ct. at p. 2523.)   Where expressive conduct is restricted because of the content of the message conveyed, the asserted interests in restricting this expression are subject to “ ‘the most exacting scrutiny.’ ”  (Texas v. Johnson, supra, 491 U.S. at p. 412, 109 S.Ct. at p. 2544, quoting Boos v. Barry (1988) 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333.)

Respondent claims that any infringement on First Amendment protections is justified by its substantial interest in taking action to protect the residents of the Rocksprings neighborhood.   But what, precisely, are the asserted interests here?   Respondent does not claim, as the State of Texas did in arguing that its interest in preventing breaches of the peace justified Johnson's conviction for flag desecration (Texas v. Johnson, supra, 491 U.S. at p. 407, 109 S.Ct. at p. 2542), that the display of the letters VSL or VST on defendants' clothing, or their use of hand signals, gestures, or hand signs will, per se, incite the residents of Rocksprings to violence.   No argument is made here that this symbolic conduct is the equivalent of “fighting words,” and proscribable per se.  (Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031.)

As respondent acknowledges in its brief, the injunction was aimed at “abating the conduct of the VSL/VST criminal street gangs within the Rocksprings neighborhood that constitutes a public nuisance.”   While protecting the quiet enjoyment of the Rocksprings residents in their homes and neighborhood is a laudable goal, “The First Amendment does not permit [a city] to impose special prohibitions on those speakers who express views on disfavored subjects.”   (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2547.)

The Supreme Court in R.A.V. invalidated a Bias–Motivated Crime Ordinance, which prohibited the “display of a symbol which one knows or has reason to know ‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’ ”  (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2540;  Wisconsin v. Mitchell (1993) 508 U.S. 476, ––––, 113 S.Ct. 2194, 2200, 124 L.Ed.2d 436.)   In R.A.V. a juvenile was charged under this ordinance after allegedly “burning a cross on a black family's lawn.”   (Ibid.)  The trial court dismissed the charge on overbreadth grounds, and because the ordinance was content-based, but the Minnesota Supreme Court reversed, on the grounds that it applied only to “fighting words,” and that it was narrowly tailored to serve a compelling governmental interest in “protecting the community against bias-motivated threats to public safety and order.”  (Ibid.)  The United States Supreme Court reversed, concluding that the ordinance was “facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”  (Id. 505 U.S. at p. ––––, 112 S.Ct. at p. 2542.)

Respondent also cites Frisby v. Schultz (1988) 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420, a case in which restrictions on residential picketing were upheld on such a ground, in support of its argument.   But the court in R.A.V. distinguished Frisby, a content-neutral ordinance, from Carey v. Brown (1980) 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263, a case in which it had invalidated a residential picketing ban which exempted labor picketing.   As the court pointed out, it had upheld reasonable time, place and manner restrictions only when and if they were “ ‘justified without reference to the content of the regulated speech.’ ”  (Id. 505 U.S. at p. ––––, 112 S.Ct. at p. 2544, citing Ward v. Rock Against Racism (1989) 491 U.S. 781, 791, 109 S.Ct. 2746, 2753–2754, 105 L.Ed.2d 661, and Clark, supra, 468 U.S. at p. 298, 104 S.Ct. at 3071.)   A facially content-based statute requires that “that weapon be employed only where it is ‘necessary to serve the asserted [compelling] interest,’ ․”  (Id. at p. ––––, 112 S.Ct. at p. 2549, citing Burson v. Freeman (1992) 504 U.S. 191, –––– [112 S.Ct. 1846, 1852, 119 L.Ed.2d 5];  see also Madsen, supra, 512 U.S. at p. ––––, 114 S.Ct. at p. 2524.)

Respondents have not shown a lack of content-neutral alternatives to these content-based restrictions.  (R.A.V., supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2550, citing Boos v. Barry, supra, 485 U.S. 312, 329, 108 S.Ct. 1157, 1168).   Since they plainly display respondent's “special hostility” towards the message conveyed (R.A.V., supra, at p. ––––, 112 S.Ct. at p. 2550), they must be invalidated as impermissible infringements on protected First Amendment rights.

B. Vagueness and Overbreadth

 To survive a vagueness challenge, due process requires that a statute, or in this case an injunction, be “ ‘definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.’ ”  (Walker v. Superior Court (1988) 47 Cal.3d 112, 141, 253 Cal.Rptr. 1, 763 P.2d 852;  see also Williams v. Garcetti (1993) 5 Cal.4th 561, 577, 20 Cal.Rptr.2d 341, 853 P.2d 507;  People v. Green (1991) 227 Cal.App.3d 692, 698, 278 Cal.Rptr. 140.)   These requirements are designed to avoid the dangers of arbitrary and discriminatory enforcement.  (Grayned v. City of Rockford (1972) 408 U.S. 104, 108–109, 92 S.Ct. 2294, 2298–2299, 33 L.Ed.2d 222.)   Reasonable certainty is all that is required.  (Ibid.)

Overbreadth is a related but equally onerous constitutional infirmity, defined by the California Supreme Court as follows:  “[A]n overbreadth challenge implicates the constitutional interest in due process of law.  (U.S. Const., Amends. V, XIV;  Cal. Const., art. 1, §§ 7, subd. (a), 24.)   The overbreadth doctrine provides that ‘a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ ”  (Williams v. Garcetti, supra, 5 Cal.4th 561, 577, 20 Cal.Rptr.2d 341, 853 P.2d 507, quoting NAACP v. Alabama (1964) 377 U.S. 288, 307, 84 S.Ct. 1302, 1313–1314, 12 L.Ed.2d 325.)

 A facial overbreadth challenge can only prevail if appellants demonstrate that the challenged decree “ ‘could never be applied in a valid manner’ or that even though it may be validly applied to the plaintiff and others, it nevertheless is so broad that it ‘may inhibit the constitutionally protected speech of third parties.’ ”  (New York State Club Assn. v. New York City (1988) 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1.)   And such a challenge will not succeed unless the injunction is “ ‘substantially’ overbroad, which requires the court to find ‘a realistic danger that the [decree] itself will significantly compromise recognized First Amendment protections of parties not before the Court.’ ”  (Ibid., citation omitted.)

“The overbreadth doctrine is ‘strong medicine’ that is used ‘sparingly and only as a last resort.’  [Citation.]  ․ [A]ppellant must demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally.”  (New York State Club Assn., supra, at p. 14, 108 S.Ct. at p. 2234, quoting Broadrick v. Oklahoma (1973) 413 U.S. 601, 613, 93 S.Ct. 2908, 2916–2917, 37 L.Ed.2d 830;  see also Wisconsin v. Mitchell, supra, 508 U.S. at p. ––––, 113 S.Ct. at p. 2201.)  “[T]he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.”   (Cantwell v. Connecticut (1940) 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213.)

We proceed to examine the remaining provisions of the injunction to determine if they are either unconstitutionally vague and/or overbroad.

Paragraph (a):  Standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant, or any other known VSL or VST member.

 We conclude the injunction's first paragraph is both vague and overbroad.   Respondents assert that the only reasonable construction of this prohibition is that it requires defendants to know the person is a gang member.   This succinctly demonstrates the arbitrary enforcement problem inherent here:  Much of the material submitted in support of the injunction documented police identification of gang members.   Appellants attest, however, that gang membership is fluid, uncertain, and often claimed by non-members for status reasons.   In either case, it is apparent that a defendant could be engaged in one of the activities prohibited in paragraph (a) with a person not known to him or her but known to police as a gang member, and suffer penalties for refusing to obey the injunction as a result.   This is a classic case of vagueness.   Since this provision also prohibits otherwise protected associational conduct it suffers, in addition, from overbreadth.   Both these infirmities require this provision be struck from the injunction.

We are also unpersuaded by respondents' contention that the associational rights at issue here are unworthy of protection.   Respondent would have us assume, on the basis of evidence that VSL/VST is a “criminal street gang” as defined in Penal Code section 186.22, subdivision (f), that all associational activities by gang members are either illegal or unprotected.   But as it acknowledges, the STEP Act was carefully drafted to provide enhanced punishments for assisting in felonious criminal conduct committed by members of such a gang while recognizing lawful associational rights.   The Legislature explicitly recognized in Penal Code section 186.21 that “It is not the intent of this chapter to interfere with the exercise of the constitutionally protected rights of freedom of expression and association.”   Mere membership in a street gang is not a crime.  (People v. Green, supra, 227 Cal.App.3d 692, 699, 278 Cal.Rptr. 140.)   And non-criminal associational conduct by VSL/VST members cannot be enjoined solely on the basis of this membership alone.

Paragraph (c):  Possessing any weapons including those enumerated in Penal Code section 12020 and any object capable of inflicting serious bodily injury.

 The latter part of paragraph (c) also suffers from overbreadth.   In addition to forbidding the possession of a list of weapons contained in Penal Code section 12020, it also prohibits possession of “any object capable of inflicting serious bodily injury including but not limited to the following:  ․”  The ensuing list includes, inter alia, crowbars, marbles, and ball bearings, all items which have legitimate, non-criminal uses.   By contrast, the items in the first part of the list are all defined by the Penal Code as deadly weapons.

While the state has a strong interest in regulating weapons possession, this latter list is the equivalent of decreeing an entire class of otherwise innocent tools, and toys, to be considered deadly weapons only when in the hands of defendants.   Paragraph (c), therefore, survives only to its definitional end, “as defined in the California Penal Code.”

Paragraphs (e) and (f):  Using or possessing sharp objects capable of defacing property;  and spraypainting or applying graffiti.

 These two paragraphs must be considered together.   Paragraph (f) enjoins “[s]pray painting or otherwise applying graffiti on any public or private property, ․” the crime of vandalism (Pen.Code, § 594, et seq.), and is enjoinable as a public nuisance.   Paragraph (e), however, enjoins in addition the use or possession of potential means of applying graffiti, including “marker pens, ․ nails, ․ screwdrivers, or other sharp objects capable of defacing private or public property.”   Again, these objects have legitimate, non-criminal uses, as do other objects “capable of” defacing property, and their possession and use by defendants, other than for criminal purposes, may not be judicially enjoined.   We conclude paragraph (e) is overbroad, and must be struck.

Paragraph (i):  Approaching vehicles, engaging in conversation, or otherwise communicating with the occupants of any vehicle, or obstructing or delaying the flow of vehicular or pedestrian traffic.

 The prohibition in this paragraph on “Approaching vehicles, engaging in conversation, or otherwise communicating with the occupants of any vehicle” also suffers from overbreadth.   It prevents defendants' communicating with the occupants of any vehicle, for any reason whatever.   This includes, as appellants point out, asking a bus driver for a transfer ticket, or even saying “Good morning” to a fellow passenger.

What respondents are clearly attempting to prohibit in (i)—drive-by drug dealing—could be prevented by enjoining that conduct alone, without reaching into the area of protected rights of speech and association.   This provision must consequently be struck from the injunction.

Paragraph (k):  Confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting, battering residents, patrons, or visitors to Rocksprings, or persons known to have complained about gang activity or provided information in support of the complaint.

 This provision suffers from two infirmities;  first, it does not sufficiently define “confront,” “intimidate,” “annoy,” “provoke,” “challenge” or “harass” so as to provide a standard of conduct for those whose activities are proscribed.  (Grayned, supra, 408 U.S. at p. 108, 92 S.Ct. at pp. 2298–2299.)   Second, like paragraph (a), it also speaks of persons “known” to have complained about gang activities, without indicating how or whether a defendant is to be charged with this knowledge.   This presents, again, the specter of arbitrary enforcement.   Both these infirmities come under the broad rubric of vagueness.

Respondent argues this type of provision is similar to those authorized by Code of Civil Procedure section 527.6 to prevent harassment.  (See, e.g., Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 274 Cal.Rptr. 447.)   “Harassment,” however, is specifically defined in Code of Civil Procedure section 527.6, subdivision (b).   This, and the procedural due process protections in subsequent subdivisions, which require, inter alia, a hearing, and proof of harassment based on clear and convincing evidence, vitiate the constitutional problems presented by the undefined and judicially enjoined conduct here.

This paragraph may be saved in part, however:  threatening and assaultive behavior, as defined in the Penal Code, may properly be enjoined against anyone in this neighborhood under public nuisance law.

Paragraph (l):  Causing, encouraging or participating in the use, possession or sale of narcotics.

 “Causing,” “encouraging,” and “participating” are ill-conceived terms that suffer both from vagueness and overbreadth.   A defendant advocating the legalization of marijuana, for instance, could conceivably be penalized for exercising his or her protected First Amendment rights under this language.   It is also unclear whether participation is the same as, or different from, possession or use.   Hence, these terms must be struck.

The rest of this paragraph, which enjoins the use, possession and sale of narcotics, and is a criminal offense, may properly be enjoined under public nuisance law.

Paragraph (m):  Owning, possessing, or driving a vehicle found to have any contraband, narcotics, or illegal or deadly weapons.

 While possessing contraband, narcotics, or illegal or deadly weapons is clearly enjoinable under public nuisance law, the proscription on owning, possessing or driving a vehicle “found to have” (presumably by police) one of the items prohibited by this paragraph is impermissibly vague.   First, it is unclear from this language whether it prohibits the vehicle, or its occupant(s) from possessing contraband, drugs, or weapons.   If the latter, it conceivably metes out additional punishment for what is already a criminal act.   If the former, does it require the occupant to be aware that the vehicle contains the prohibited items?

This paragraph presents both the spectre of arbitrary enforcement—of police stopping vehicles with the knowledge or suspicion that its occupants have violated this proscription—and also raises procedural due process concerns if its intent, or effect, is to deprive defendants of ownership or possession of their vehicles.   This paragraph is thus void for vagueness.

Paragraph (n):  Using or possessing beepers in any public place.

 This proscription is evidently intended to prevent activity in aid of the rampant, drive-by drug-dealing which characterized gang activity in the Rocksprings neighborhood prior to the injunction's issuance.   Nonetheless, it is too broad to withstand constitutional scrutiny.   Respondents have not shown that curtailment of this activity cannot be achieved by narrower means.   Thus, this provision must also be struck.

Paragraph (o):  Possession of instrumentalities capable of being used to break into locked vehicles.

 The vagueness and overbreadth in this provision are self-evident.   Many of the listed instrumentalities, including pliers, screwdrivers and spark plugs have legitimate uses, particularly by those who drive cars.   If the possession of marbles is enjoinable on such a ground, why not a baseball?   The dangers of arbitrary enforcement, and the concomitant intrusion on innocent activities, are too obvious to ignore.   This provision does not survive constitutional scrutiny.

Paragraph (q):  Sheltering, concealing or permitting another person to enter into a residence not their own when said person appears to be running, hiding, or otherwise evading a law enforcement officer

 This paragraph also suffers from vagueness.  “Sheltering” is undefined.   And who decides whether a person “appears to be” evading law enforcement?   The possibility of arbitrary enforcement renders this paragraph impermissibly vague.

Paragraph (r):  Signalling to or acting as a lookout for other persons to warn of the approach of police officers and soliciting, encouraging, employing or offering payment to others to do the same.

 This paragraph fails to define “signalling.”   It also fails to explain how police will distinguish between those activities designed to alert defendants to police presence, and those which might have other, innocent intentions.   It thus suffers from vagueness.

Paragraph (s):  Climbing any tree, wall or fence, or passing through any wall or fence using tunnels or other holes in such structures.

 Like paragraph (n), this paragraph suffers from overbreadth in its assumption that otherwise innocent activities, engaged in by defendants, become means to criminal ends.   Since it potentially involves trespassing, which is properly enjoined in paragraph (g), we see no need to validate such a “meat cleaver” approach to gang activity in Rocksprings.

Paragraph (x):  Making, causing, or encouraging others to make loud noises of any kind, at any time of the day or night.

 How loud is loud?   Does it include talking above a whisper?   Does it have to bother, or interfere with the quiet enjoyment of a Rocksprings resident?   Does it include playing a car radio or stereo at any volume?   The lack of a standard of proscribed conduct here, and the danger of interfering with protected freedoms again dooms this provision as both vague and overbroad.

C. Summary

To encapsulate our previous discussions, paragraphs (b), (d), (f), (g), (h), (j), (p), (t), and (u) all survive as enjoinable criminal activities under public nuisance law.   Paragraphs (a), (e), (i), (m), (n), (o), (q), (r), (s), (v), (w), and (x) are all constitutionally impermissible.   And paragraphs (c), (k) and (l ) all survive in part, consistent with constitutional limitations.

IV. Defendants

 In light of our conclusion that parts of the injunction must be upheld, we must now address appellants' remaining argument that as to six of the named defendants, there has been no adequate showing that they are active gang members.   These defendants are Blanca Gonzalez, Jorge Gonzalez, Ebarardo Cervantes, Miguel Lopez, Miguel Moreno and Rafael Ruiz.   We will first summarize the evidence presented by respondents against these six defendants.

A. Blanca Gonzalez

On May 20, 1992, an officer stopped a car driven by Ms. Gonzalez, apparently because it had been cruising in an area of open conflict between Norteno and Sureno gangs.   She and her passengers were all dressed in Sureno-style clothing, and she and two passengers claimed gang membership.   Ms. Gonzalez told the officer she claimed VST and VCT (Varrio Colonio Treces) membership.

On October 31, 1992, another officer on foot patrol in Rocksprings encountered Ms. Gonzalez and another young woman.   They told the officer they did not live in Rocksprings, and that they were members of VSL.

B. Jorge Gonzalez

On September 25, 1992, police officers stopped a car driven by Mr. Gonzalez for a mechanical violation.   Mr. Gonzalez told the officers he was a member of VSL, and on parole from the California Youth Authority (CYA) for an assault with a deadly weapon conviction.   After the officers obtained Mr. Gonzalez's consent to search the car, they found three bags of cocaine and three bags of marijuana under a seat.   All four passengers also claimed gang membership.

On January 8, 1993, in response to a report of a gang-related disturbance in Rocksprings, an officer approached a group of young men at the scene, including Mr. Gonzalez, to obtain information about the incident.   All three were dressed in Sureno colors and styles, and claimed VSL membership.

C. Eberardo Cervantes

On December 21, 1992, officers observed two suspects, one of whom was Eberardo Cervantes, selling illegal drugs on the corner of Nordale and Welch in Rocksprings.   The two were arrested, and four bags of marijuana and one baggie of cocaine were retrieved.   Mr. Cervantes told the officers he claimed VST membership.   The two suspects were subsequently prosecuted for possession for sale and sales of marijuana and cocaine.

On May 5, 1993, officers were investigating a gang-related homicide in which a woman Norteno gang member was shot while riding as a passenger in a car with other Nortenos.   One of the field interview cards given to the officer for follow-up was one for “Eduardo Dominguez;”  the officer recognized this individual as Mr. Cervantes, who had escaped from Boy's Ranch about two weeks earlier.   Confronted, Mr. Cervantes acknowledged his identity, and indicated his VST membership.

D. Miguel Lopez

On January 15, 1992 officers conducting surveillance in Rocksprings observed several drug sales conducted by Mr. Lopez and another young male.   Neither lived in Rocksprings.   Mr. Lopez told officers he was a VSL member;  he had a 3–dot tattoo on his left hand.

On July 17, 1992, Mr. Lopez was a passenger in a car stopped by an officer in Rocksprings for a Vehicle Code violation.   Mr. Lopez told the officer he was on probation for a burglary conviction and was a VST member.

On September 18, 1992, an officer encountered Mr. Lopez across the street from Yerba Buena High School.   A records check showed him to be an escapee from Boys' Ranch.   Mr. Lopez told the officer he was a VST member, and showed him a tattoo of this acronym on his stomach and the 3–dot tattoo on his hand.

E. Miguel Moreno

On August 28, 1992, an officer on foot patrol in Rocksprings encountered Mr. Moreno, dressed Sureno-style.   He told the officer he lived in the neighborhood, although he could not remember the address, and that he was a VST member.

On October 13, 1992, another officer on foot patrol in Rocksprings observed what appeared to be a drug transaction take place.   When he accosted the suspected buyer, he admitted having purchased marijuana.   The officer then approached the alleged seller, Mr. Moreno, who had exactly the amount of money the purchaser told the officer he had paid in his possession.   The officer determined Mr. Moreno was truant from high school at the time of this transaction.

F. Rafael Ruiz

Officers responded to a gang-related call on October 1, 1992.   The reporting party had told police that several gang members were selling drugs, and were harassing his wife and daughter.   Officers saw five young males in the vicinity, one corresponding to the reporting party's description.   All five were dressed Sureno-style, and all claimed VST membership.   One officer took two photographs of the group, which included Mr. Ruiz.

Appellants argue this evidence is insufficient to demonstrate these defendants are active members in a criminal street gang who devote all or a substantial part of their time and efforts to the gang.   We conclude this is not the appropriate test for determining the propriety of their being subject to the injunction, however:  In order to be properly named, there must be some connection between the individual defendants and the conduct to be enjoined.

 We note again, in beginning this discussion, that mere membership in a street gang is not a crime.  (People v. Green, supra, 227 Cal.App.3d at p. 699, 278 Cal.Rptr. 140.)  “[C]riminal liability may not be predicated on nothing more than membership;  i.e., nothing more than some association with a group.”  (Ibid.)  As the United States Supreme Court has stated, “In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ․ that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.”  (Scales v. United States (1961) 367 U.S. 203, 224–225, 81 S.Ct. 1469, 1484, 6 L.Ed.2d 782.)

“Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.   For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.  [Fn. omitted.]  ‘In this sensitive field, the State may not employ “means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” ’ ”  (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 920, 102 S.Ct. 3409, 3429, 73 L.Ed.2d 1215;  Carroll v. Princess Anne (1968) 393 U.S. 175, 183–184, 89 S.Ct. 347, 352–353, 21 L.Ed.2d 325;  see also Healy v. James (1972) 408 U.S. 169, 186, 92 S.Ct. 2338, 2348–2349, 33 L.Ed.2d 266.)

 As these cases demonstrate, even membership in an organization which advocates or engages in illegal activity is not, by itself, grounds for the imposition of punishment.   There must be some personal, individual participation in the illegal conduct for that conduct to be restrained (cf. NAACP, supra, at p. 924, fn. 67, 102 S.Ct. at p. 3431, fn. 67) in order to comply with due process.   As respondent acknowledges, and as we have already pointed out, the STEP Act was carefully drafted to impose enhanced criminal liability on active gang members who assist in felonious criminal conduct by their members only under carefully circumscribed conditions.   It specifically does not criminalize membership in a gang alone, or non-criminal conduct by gang members.

It is therefore, for all practical purposes, irrelevant whether respondent has shown that these six defendants are, or are not, members of VSL/VST.   What matters is if there has been a showing that the conduct they have engaged in is the same, or similar to that conduct which respondent seeks to enjoin.   Only thus can due process be served.

Having determined the standard by which the propriety of these appellants presence in this suit should be judged, the result is self-evident.   As to Blanca Gonzalez, no showing has been made that she has done anything other than dress Sureno-style, claim gang membership, and be seen in Rocksprings.   This is an inadequate foundation for civil liability.   All the other defendants were suspected of participating in, and/or were arrested or prosecuted for activity which is the subject of this injunction—mainly narcotics sales, possession or use.   Thus we conclude that five of the defendants at issue were properly named, but Ms. Gonzalez must be dismissed as a defendant.

Disposition

The order authorizing the preliminary injunction is modified consistent with the views discussed herein;  as modified, it is affirmed.   Each party to bear its own costs on appeal.

FOOTNOTES

1.   The order granting preliminary injunction enjoins defendants from:“(a) Standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant herein, or with any other known ‘VST’ (Varrio Sureno Town or Varrio Sureno Treces) or ‘VSL’ (Varrio Sureno Locos) member;“(b) Drinking alcoholic beverages in public excepting consumption on lawfully licensed premises, or using drugs;“(c) Possessing any weapons including but not limited to knives, dirks, daggers, clubs, nunchukas, BB guns, concealed or loaded firearms, and any other illegal weapons as defined in the California Penal Code, and any object capable of inflicting serious bodily injury including but not limited to the following:  metal pipes or rods, glass bottles, rocks, bricks, chains, tire irons, screwdrivers, hammers, crowbars, bumper jacks, spikes, razor blades[,] razors, sling shots, marbles, ball bearings;“(d) Engaging in fighting in the public streets, alleys, and/or public and private property;“(e) Using or possessing marker pens, spray paint cans, nails, razor blades, screwdrivers, or other sharp objects capable of defacing private or public property;“(f) Spray painting or otherwise applying graffiti on any public or private property, including but not limited to the street, alley, residences, block walls, vehicles and/or any other real and personal property;“(g) Trespassing on or encouraging others to trespass on any private property;“(h) Blocking free ingress and egress to the public sidewalks or street, or any driveways leading or appurtenant thereto in ‘Rocksprings';“(i) Approaching vehicles, engaging in conversation, or otherwise communicating with the occupants of any vehicle or doing anything to obstruct or delay the free flow of vehicular or pedestrian traffic;“(j) Discharging any firearms;“(k) In any manner confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting and/or battering any residents or patrons, or visitors to ‘Rocksprings', or any other persons who are known to have complained about gang activities, including any persons who have provided information in support of this Complaint and requests for Temporary Restraining Order, Preliminary Injunction and Permanent Injunction;“(l ) Causing, encouraging, or participating in the use, possession and/or sale of narcotics;“(m) Owning, possessing or driving a vehicle found to have any contraband, narcotics, or illegal or deadly weapons;“(n) Using or possessing pagers or beepers in any public place;“(o) Possessing channel lock pliers, picks, wire cutters, dent pullers, sling shots, marbles, steel shot, spark plugs, rocks, screwdrivers, ‘slim jims' and other devices capable of being used to break into locked vehicles;“(p) Demanding entry into another person's residence at any time of the day or night;“(q) Sheltering, concealing or permitting another person to enter into a residence not their own when said person appears to be running, hiding, or otherwise evading a law enforcement officer;“(r) Signal[l]ing to or acting as a lookout for other persons to warn of the approach of police officers and soliciting, encouraging, employing or offering payment to others to do the same;“(s) Climbing any tree, wall, or fence, or passing through any wall or fence by using tunnels or other holes in such structures;“(t) Littering in any public place or place open to public view;“(u) Urinating or defecating in any public place or place open to public view;“(v) Using words, phrases, physical gestures, or symbols commonly known as hand signs or engaging in other forms of communication which describe or refer to the gang known as ‘VST’ or ‘VSL’ or in any way serving to further or facilitate the nuisances and crimes committed by the gang known as ‘VST’ or ‘VSL’ as described in this Complaint or any of the accompanying pleadings or declarations;“(w) Wearing clothing which bears the name or letters of the gang known as ‘VST’ or ‘VSL’;“(x) Making, causing, or encouraging others to make loud noise of any kind, including but not limited to yelling and loud music at any time of the day or night.“(y) This injunction shall expire one year from today's date or upon the granting or denial of a permanent injunction, whichever shall occur first.”

2.   At the June 28 hearing, respondents presented evidence that the preliminary injunction issued on March 10 had been extremely successful in ridding Rocksprings of the gangs' presence and activities.   While this result may be laudable, it does not resolve the underlying issue of the constitutionality of the tool used to achieve it.

3.   Respondent makes a number of constitutional arguments vis-a-vis several of the injunction's provisions.   For simplicity, we will group the offending provisions under only one heading.

ELIA, Associate Justice.

PREMO, Acting P.J., and BAMATTRE–MANOUKIAN, J., concur.