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Name: In re Oswaldo R.
Case #: A148364
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 05/02/2017

Probation condition prohibiting minor from participating in “gang-related activities” was not unconstitutionally vague. The 14-year-old appellant was originally declared a ward and placed on probation for misdemeanor battery (Pen. Code, § 243.2). While on probation, he entered a plea to misdemeanor vandalism. He was removed from his parents’ custody, and placed on probation in a program through juvenile hall. Appellant objected to and appealed a gang condition of probation that prohibited him from participating in any “gang-related activity.” Held: Affirmed. Under the void for vagueness doctrine, an order must be sufficiently precise to afford the probationer fair notice of the required conduct and for the court to determine whether a condition has been violated. A scienter requirement would not clarify the condition here because “[i]f it is not clear what activities constitute ‘gang-related activities,’ directing appellant not to ‘knowingly’ participate in them would not make any clearer what activities he must avoid.” The statutory definition of “criminal street gang,” together with other provisions of Penal Code section 186.22, make it apparent the “gang-related activity” that the probation condition concerns is activity which facilitates or involves the commission of crimes for the benefit of or in association with a criminal street gang. Because the condition provides a reasonable degree of certainty, it need not be modified.

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