In re Jorge G.

Decision Date13 April 2004
Docket NumberNo. F043272.,F043272.
Citation117 Cal.App.4th 931,12 Cal.Rptr.3d 193
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re JORGE G., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Jorge G., Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Matthew L. Cate and Jennifer M. Runte, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WISEMAN, J.

In this case we consider the constitutionality of three gang registration provisions of the Street Terrorism Enforcement and Prevention Act (the STEP Act), as amended by Proposition 21, an initiative approved by the voters in the March 7, 2000, primary election. First, we address a void-for-vagueness challenge to a provision requiring registration as a gang member by any person convicted of, and any person who has had a petition sustained in juvenile court for, "[a]ny crime that the court finds is gang related at the time of sentencing or disposition." (Pen.Code § 186.30, subd. (b)(3).)1 We apply a limiting construction to the term "gang related" and hold that, as limited, it is not unconstitutionally vague. We also conclude that the record does not contain sufficient evidence to support the juvenile court's finding that the crimes of appellant Jorge G. (the minor) were gang-related.

The second provision at issue requires those registering as gang members to provide a local law enforcement agency with a "written statement ... giving any information that may be required by the law enforcement agency ...." (§ 186.32, subd. (a)(1)(C) [for juvenile registrants]; § 186.32, subd. (a)(2)(C) [for adult registrants].) The minor contends that the requirement to give "any information that may be required" is unconstitutionally vague; violates his rights against self-incrimination and to free speech, free association, and privacy; and constitutes an improper delegation of authority in violation of the separation-of-powers doctrine. To assist the trial court upon remand, we hold that this provision is constitutional, again subject to a limiting construction.

The final provision the minor challenges provides that the registration requirements shall remain in effect for five years after imposition. (§ 186.32, subd. (c).) The minor contends that this constitutes cruel and unusual punishment as applied to him because his offenses were minor compared to the length of time that he is required to register. We hold that requiring the minor to register pursuant to the statute is not cruel and usual punishment.

We vacate the juvenile court's order, to the extent it directs the minor to register, and remand for a new disposition hearing to provide the People an opportunity to submit additional evidence on the issue of gang-relatedness in light of our construction of the statute. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL HISTORIES

The minor was arrested on March 27, 2003, outside an apartment building in Tulare. Police found him there among a group of 8 to 10 youths after residents reported a disturbance. The arresting officer arrived at the scene and saw the group of youths, six or seven of whom were wearing red clothing, shouting at a resident of the building. Red is the color of the Nortenos gangs; the minor was wearing a red shirt and shoes with red markings. The adult resident had the name of the Fresno Bulldogs gang tattooed across his bare chest. When police arrived, the minor was at the front of the group and continued shouting as his companions fled. The minor finally fled as well but was apprehended.

The People filed a juvenile wardship petition charging the minor with disturbing the peace in violation of section 415 and resisting, delaying or obstructing a peace officer in violation of section 148, subdivision (a)(1), both misdemeanors. The minor admitted to the allegations in the petition. The probation report recommended that the minor remain with his family and be placed on probation. Among the recommended conditions of probation was that he register with the police as a gang member pursuant to section 186.30, subdivision (b). At a contested disposition hearing, the minor challenged the gang registration recommendation. After receiving testimony by the arresting officer, the court concluded that the charges were gang-related and ordered the minor to register.

DISCUSSION2
I. "Gang related"

The STEP Act was enacted by the Legislature in 1988 "to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs...." (§ 186.21.) The STEP Act added sections 186.20 through 186.27 to the Penal Code. (Stats.1988, ch. 1242, § 1; Stats.1988, ch. 1256, § 1.)

Proposition 21 amended the STEP Act, adding sections 186.30, 186.31, 186.32, and 186.33. (Voter Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, §§ 7-9, at Propositions/21text.htm> [as of April 9, 2004].) Section 186.30 provides that "any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state" for "[a]ny crime that the court finds is gang related at the time of sentencing or disposition" must register as a gang member with local law enforcement. Section 186.31 requires the court making the gang-relatedness finding to advise the defendant of his or her duty to register. Section 186.32 sets forth the steps the defendant must take to comply with the duty to register and section 186.33 makes failure to register a misdemeanor.

The minor argues that the term "gang related" in section 186.30, subdivision (b)(3), is unconstitutionally vague. A facial vagueness challenge is based on the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and on article I, section 7 of the California Constitution. (Williams v. Garcetti (1993) 5 Cal.4th 561, 567, 20 Cal.Rptr.2d 341, 853 P.2d 507.) Under both the federal and the state Constitutions, vagueness invalidates a criminal statute if the statute "`fail [s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits ...'" or if it "`may authorize and even encourage arbitrary and discriminatory enforcement.' [Citation.]" (People v. Castenada (2000) 23 Cal.4th 743, 751, 97 Cal.Rptr.2d 906, 3 P.3d 278; see also Williams v. Garcetti, supra, 5 Cal.4th at p. 567, 20 Cal.Rptr.2d 341, 853 P.2d 507.)

We faced a constitutional vagueness challenge to the word " gang" in a context similar to the present case in People v. Lopez (1998) 66 Cal.App.4th 615, 78 Cal.Rptr.2d 66. There, the defendant had been sentenced to probation with conditions, including a prohibition on being" `involved in any gang activities,'" and on "`associat[ing] with any gang members....'" (Id. at p. 622, 78 Cal.Rptr.2d 66.) We concluded that the word "gang" in this context "is, on its face, uncertain in meaning," and that the condition would be unconstitutional if not for the availability of a limiting construction. (Id. at pp. 631-634, 78 Cal.Rptr.2d 66.) We noted that in Lanzetta v. New Jersey (1939) 306 U.S. 451, 453-455, 59 S.Ct. 618, 83 L.Ed. 888, the Supreme Court invalidated a New Jersey anti-gang statute. In doing so, the court stated that the word "gang" had various definitions in dictionaries and in historical and sociological writings, observing that it could find no definition in statutory or case law. We also cited contemporary dictionary definitions, commenting that "[a]lthough `gang' has in the recent past likely acquired generally sinister implications, the word has considerable benign connotations," such as "`a group of persons working under the same direction or at the same task....'" (People v. Lopez, supra, 66 Cal.App.4th at p. 631, 78 Cal.Rptr.2d 66.) In short, the condition as written did not give the defendant sufficient notice of the precluded activities or the persons with whom he should not associate.

Here, absent a statutory definition of the word "gang" in the phrase "gang related," section 186.30, subdivision (b)(3), fails to give the public clear notice of the conduct that will result in the requirement to register as a gang member. But, as in Lopez, an appropriate limiting construction is available. In Lopez, we held that "gang" in the conditions of probation meant "criminal street gang" as defined in the section 186.22 of the STEP Act. Section 186.22, subdivision (f), states:

"As used in this chapter, `criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."

Section 186.22, subdivision (e), provides:

"As used in this chapter, `pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons...."

A list of 25 enumerated offenses follows. As we observed in Lopez, the California Supreme Court in People v. Gardeley (1996) 14 Cal.4th 605, 622-623, 59 Cal.Rptr.2d 356, 927 P.2d 713 upheld section 186.22, subdivisions (e) and (f), against a constitutional vagueness challenge,...

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