1 Filed 2/27/14 In re S.T. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

In re S.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,

v. S.T., Defendant and Appellant. E058869 (Super.Ct.No . RIJ1300163) OPINION

APPEAL from the Superior Court of Rive rside County. Roger A. Luebs, Judge. Affirmed in part; reversed in part and remanded. Nancy S. Brandt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Charles C. Ragland and Marissa Bejarano, Deputy Attorn eys General, for Plaintiff and Respondent.2 Minor S.T. admitted she committed second degree burglary (Pen. Code, 1 § 459) and used force on a peace officer (§ 243, subd. (b)). The juven ile court declared minor to be a ward of the court, and placed her in the custody of the proba tion department with various probation terms and conditions. In th is appeal, minor conte nds a condition of her probation that prohibits her from having “neg ative contact” with her older sister is unconstitutionally vague and in fringes on her First Amendmen t right of association. Minor also challenges, on constitutional vagueness and overbread th grounds, two probation conditions that prohibit her from we aring or displaying cl othing or symbols she knows to be “related to a cr iminal street gang,” and prohib it her from posting, displaying, or transmitting by any cell phone or electronic device any symbols or information she knows to be “related to a criminal street gang.” The People concede that th e challenged no “negative co ntact” probation condition is unconstitutionally vague, but contend the co ndition, after proper modification, will not unduly infringe on minor’s ri ghts of association. The Pe ople argue the two gang-related probation conditions pass constitutional muster because they include a requirement that minor know of or be inform ed by her probation officer of what constitutes prohibited gang-related conduct, and that th e conditions are narrowly tailored.

1 All further undesignated statutory references are to the Penal Code.3 We conclude the prohibition on minor having no “negative contact” with her sister is unconstitutionally vague, and order the juven ile court to modify it. As modified, we conclude that condition is otherwise constituti onally sound. We also conclude the gangrelated probation conditions are not constitutiona lly vague or overly broad. Therefore, we reverse the judgment in part and remand for appropriate modifications to the terms of minor’s probation.
I.
FACTS AND PROCED URAL BACKGROUND 2 On January 14, 2013, police responded to a department store in Riverside to investigate a report of two Black males a nd two Black females stealing merchandise. Witnesses told the police that four suspects—later identified as T.M., Q.P., minor, and minor’s sister, S.P.—ran out the front door of the store with their arms full of merchandise. The store’s manager ran after the suspects and tried to stop them from fleeing with the merchandise. The manager tr ied to knock clothing out of T.M.’s hands, but T.M. hit her in the chest with his elbow a nd raised his fist as if he were going to punch the manager. When a witness ran to th e manager’s assistance and distracted T.M., the manager grabbed clothing from the backse at of the suspect’s vehicle and saw minor seated in the vehicle. That witness, as well as another witness both tried to stop T.M. from fleeing, but he pushed them to th e ground. The susp ects then fled.

2 We take our background facts from th e two detention hearing reports prepared by the probation department, to which the partie s stipulated as a factual basis for minor’s admissions.4 The People filed a petition under Welf are and Institutions Code section 602, alleging that minor committed robbery (§ 211 ), second degree burglary (§ 459), and three counts of battery (§ 242). Minor admitted to committing second degree burglary, and the juvenile court dismissed the remaining allegations. The c ourt set a dispositional hearing and released minor into the custody of her mother. When minor failed to appear for the di spositional hearing, the juvenile court issued a bench warrant for minor’s arrest. A deputy sheriff went to minor’s home to arrest her, but when the deputy arrived, mi nor’s mother told him she believed minor had just fled on foot and that mi nor might have gone to a frie nd’s house. As the deputy drove around looking for minor, he saw minor’s sist er pointing toward a young female running down the street. The deputy drove up to th e female and saw that it was minor. Minor ignored the deputy’s directives to stop running away, and the officer was forced to park his vehicle and chase her on foot. The deputy caught up to minor and walked her back to his patrol vehicle. As they reached the vehi cle, minor’s mother met them and gave minor some water to drink. The deputy let minor drink the water, but she turned around and spat it in his face. As the de puty tried to handcuff minor and place her in the backseat of the patrol vehicle, minor resist ed and kicked the deputy in his legs, torso, and knee, and spat at him again. When th e deputy was finally able to push minor into the backseat, minor yelled at the deputy and threatened to have gang member fr iends “take care of him.”5 The People filed a new petition alleging mi nor willfully and unla wfully used force against a peace officer. (§ 243, subd. (b ).) In its recommende d disposition for both petitions, the probation department recomme nded the court impose three gang-related conditions of probation and various no contac t conditions. Relevant here, condition “t” would prohibit minor from wearing, displayi ng, or possessing symbols, clothing, or paraphernalia she knows, or is made known by her probation officer, “to be related to a ‘criminal street gang’” as defined in se ction 186.22, subdivisi on (f). Under condition “u,” minor would be prohib ited from posting, displaying, or transmitting by any cell phone or electronic device any symbols or in formation that minor knows, or is made known by her probation officer, “to be related to a ‘criminal street gang’” as defined in section 186.22, subdivision (f). And pertin ent here, condition “w” prohibited minor from associating with or having “any negative contact” with her si ster, a coparticipant in the burglary. At the detention hearing on minor’s ne w petition, minor admitted the allegation that she used force on a peace officer. (§ 243, subd. (b).) Minor’s counsel objected to the three gang-related probation conditions becaus e, other than statements to the probation department by minor’s mother, there was no evidence that minor was a member of a gang or that she associated with gang members. Counsel di d not object to a general prohibition on associating with known gang members who are no t also family members. The People responded that th e gang conditions were appropr iate because, when minor threatened the deputy during her arrest, she admitted to associating with gang members and purported to have the ability to have gang me mbers to do her bidding.6 The probation officer related to the court th at, when minor’s mother was interviewed and tried to talk about minor’s su spected gang associations, minor tried to prevent her mother from speaking and had to be removed from th e room. Finally, the probation officer’s detention hearing report informed the court th at minor’s sister admitted to associating with members of the Edgemont Cr iminals and Dorner Blocc gangs. The juvenile court noted that minor was cl early associating with the gang lifestyle, which was contributing to her de linquency. The court declared minor to be a ward of the court, and placed her in the custody of th e probation department under the conditions of probation just discussed.
II. DISCUSSION
A. PROBATION CONDITION “W” IS VAGUE A ND MUST BE MODIFIED, BUT DOES
NOT UNDULY INFRINGE ON MINO R’S RIGHTS OF ASSOCIATION i. Vagueness “[T]he underpinning of a vagueness challe nge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘e mbodied in the due process clauses of the federal and California Constitutions . (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).’ [Citation.]” ( In re Sheena K. (2007) 40 Cal.4th 875, 890.) “A probation condition ‘must be sufficiently precise for the probatione r to know what is required of him, and for7 the court to determine whether the condition has been violated ,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” ( Ibid .) Generally, a juvenile court’s discretion to impose conditions of probation is subject to deferential review and will only be reversed on a sh owing of manifest abuse of discretion. ( In re Ramon M . (2009) 178 Cal.App.4th 665 , 676.) However, “[i]f the vagueness of a probation condition may be corr ected ‘without reference to the particular sentencing record developed in the trial court’ [citation], an issue of law arises subject to de novo review on appeal. [Citation.]” ( People v. Mendez (2013) 221 Cal.App.4th 1167, 1172.) Minor contends, and the People conced e, that probation condition “w,” which prohibits minor from having “negative contact” with her sister, is constitutionally vague. We agree. The term “negative contact” is indefinite and does no t provide minor with notice of what types of contact with he r sister are permissible and what are impermissible. Moreover, “neg ative contact” is open to broa d interpretation and provides no guidance to law enforcement, the probation de partment, or the juvenile court, and is therefore susceptible to arb itrary enforcement. Because probation conditions must be tailored to the specific needs for the rehab ilitation of a juvenile offender (see Welf. & Inst. Code, §730, subd. (b)), we therefore remand to the juve nile court to more narrowly define what types of contact with minor’s si ster are likely to contribute to minor’s delinquency and should be prohibited.8 ii. Right of Association “An adult probation condition is unreasonable if ‘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 . . . .” [Citation.]’ [Citations.] In addition, an adult proba tion condition is overbroad if it unduly restricts the exercise of a constitutional right. ‘[C]onditions of probation that impinge on cons titutional rights must be tailo red carefully and “reasonably related to the compelling state interest in refo rmation and rehabilitation . . . .” [Citation.]’ [Citations.]” ( In re Byron B. (2004) 119 Cal.App.4th 1013, 1016 [Fourth Dist., Div. Two].) “However, ‘[t]he juvenile court’s broa d discretion to fashion appropriate conditions of probation is dis tinguishable from that exerci sed by an adult court when sentencing an adult offender to probation. Although the goal of both types of probation is the rehabilitation of the offender, “[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory pu nishment; it is an ingredient of a final order for the minor’s reformation and rehabilitation.” [Citation.] . . . [¶] In light of this difference, a condition of probation that w ould be unconstitu tional or otherwise improper for an adult probationer may be permissible for a minor unde r the supervision of the juvenile court. [Citations.] “‘Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to m eet the needs of the juvenile [citation].’” [Citations.]’ [Citations.]” ( In re Byron B ., supra , 119 Cal.App.4th at p. 1016.)9 Minor contends that condition “w” also unconstitutionally infri nges upon her right to associate with her sister, which is a “critic ally important” relationship to her. But, as minor seems to concede in her reply brief, this conditio n does not prohibit all contact with minor’s sister, and the juvenile cour t has the discretion to limit contact with persons—even family members—wh o might contribute to the delinquency of the minor. ( In re Byron B. , supra , 119 Cal.App.4th at p. 1018 .) After proper modification on remand, this condition should be sufficiently tailored to minor’s needs because it will only prohibit well-defined contact with minor’s si ster that is likely to interfere with her rehabilitation. Finally, the juvenile court sh ould consider, as suggested by minor, further modifying the probation condition to provide th at minor’s contact with her sister be supervised by a responsible adult.
B. THE GANG-RELATED CONDITIONS OF MINOR’S PROBATION ARE NOT
CONSTITUTIONALLY VAGU E OR OVERLY BROAD i. Vagueness Minor also challenges as vague probation conditions “t” and “u,” which prohibits her from engaging in certain conduct that sh e knows or is informed by the probation officer “to be related to a ‘criminal stre et gang’” as defined in section 186.22, subdivision (f). According to minor, these conditions are vague because they do not specifically name a gang or gangs whose sym bols and clothing she must avoid. Minor contends that theoretically she must a void wearing clothing or colors, and avoid10 displaying or transmitting symbols, used by cr iminal street gangs anywhere in the United States to avoid viol ating these conditions. We are not persuaded. True , conditions “t” and “u” do not name specific criminal street gangs operating in More no Valley (where minor lives) or in surrounding locales that minor must steer clear of. This is beca use, notwithstanding her threat to the deputy, the record contains no evidence of specific gangs with wh ich she associates. Rather, the record supports the juvenile court’s finding th at minor associates with a “gang lifestyle,” and that she is at risk of falling further into that lifestyle if she associates with gang members. Thus, prohibiting minor from posse ssing gang clothing or accoutrements, and from displaying and sending gang symbols and information, is rationally related to her rehabilitation. Moreover, as the People contend, cond itions “t” and “u” are not vague because they require minor to actually know or be made aware by the probation department that the clothing or symbols she wears or possesse s, or the information she transmits by any cell phone or electronic device, is related to a criminal str eet gang as defined in section 186.22, subdivision (f). By requiring that mi nor know or be expre ssly informed that a particular article of clothing or symbol is related to a specific criminal street gang, as defined by statute, minor is not left in the dark of what conduct is prohibited, and these conditions are not constitutionally vague. (See In re H.C. (2009) 175 Cal.App.4th 1067, 1071-1072.)11 ii. Overbreadth “A [probation] restriction is unconstitutiona lly overbroad . . . if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailo red carefully and reasonably related to the compelling state interest in reformation and rehabilitation .’ [Citations.] The essential question in an overbreadth ch allenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it im poses on the defendant’s constitutional rights—bearing in mind, of course, that perfec tion in such matters is impossible, and that practical necessity will jus tify some infringement.” ( In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) In a related argument, minor contends conditions “t” and “u” are overly broad because they potentially prohi bit minor from engaging in ac tivity that is related to a criminal street gang located far away, includ ing in other states. For the same reasons stated above, we disagree. These conditio ns only limit minor’s fre edoms to the extent she knows or is expressly info rmed that the clothing or symbols she wears, displays, or possesses, and the symbols and information she transmits or displays on her cell phone or other electronic devices relate to a criminal street gang as de fined by statute. Minor is not required, as suggested in her briefs, to learn about the clothing, symbols, and information used by gangs everywhere to avoi d violating these conditi ons of probation. In any event, on remand, the juvenile court might consider more narrowly tailoring these terms to either name the gangs at issue or to include some geographic limit on the reach of these terms.12 III. DISPOSITION The judgment is reversed in part and the cause is remanded to the juvenile court to modify probation condition “w” to more sp ecifically define what types of contact between minor and her sister, S.P., are prohibite d, and to consider fu rther modifying that term to require that contact between minor a nd her sister be supervised by a responsible adult. The court should also cons ider, in its discretion, mo difying probation conditions “t” and “u” to either include the name of th e gang or gangs whose symbols, clothing, and information minor may not wear, display, posse sses, or transmit elec tronically, or to limit the geographic reach of those conditions. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.
We concur:

HOLLENHORST Acting P. J.

CODRINGTON J.