California Penal Code Section 186.22, Subdivisions (E) and (F)

In People v. Lopez (1998) 66 Cal.App.4th 615, the defendant's probationary term barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing. (Id. at p. 622.) The reviewing court found the term "gang" to be unconstitutionally vague and overbroad in that it failed to put the defendant on proper notice of those with whom he was prohibited from associating, what he could wear, and what activities in which he might lawfully engage. (Id. at pp. 628-631.) The court found an implied requirement of knowledge insufficient to overcome the constitutional infirmities. "Without at least the insertion . . . of a knowledge element, the defendant was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise the defendant of the 'identified' items of gang dress before he was charged with a violation." (Id. at p. 634.) Hence, the court modified the conditions of probation to insert the Penal Code section 186.22, subdivisions (e) and (f) statutory definition of "criminal street gang" and to require that the defendant not associate with anyone known by him to be a gang member and not wearing clothing known by him to be gang attire. (Id. at p. 638.) The defendant's probationary term No. 15 barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing. (Lopez, supra, 66 Cal.App.4th at p. 622.) That court found the term constitutionally vague and overbroad in that it failed to put the defendant on proper notice with whom he was prohibited from associating, what he could wear, and what activities in which he might lawfully engage. (Id. at pp. 628-631.) That court found an implied requirement of knowledge on the part of the defendant insufficient to overcome the constitutional infirmities: "Without at least the insertion in this aspect of the condition of a knowledge element, the defendant was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise the defendant of the 'identified' items of gang dress before he was charged with a violation." (Id. at p. 634.) Hence, the court modified the defendant's conditions of probation to require that the defendant not associate with anyone known by him to be a gang member and not wear clothing known by him to be gang attire. (Id. at p. 638.) With these minor modifications, the court found the defendant's probationary terms passed constitutional muster. (Ibid.) The Court explained that "prohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders." It went on to note that "probation terms have been approved which bar minors from being present at gang gathering areas, associating with gang members, and wearing gang clothing. " (Ibid.) "Because 'association with gang members is the first step to involvement in gang activity,' such conditions have been found to be 'reasonably designed to prevent future criminal behavior.'" (Ibid.) In addition, "probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders . . . . The path from gang associations to criminal gang activity is open to adults as well as to minors." (Id. at p. 625.) The federal courts have also "found curtailments of an adult probationer's associations with specified groups to be proper where such restrictions serve a rehabilitative purpose, even where the crime in issue was not shown to have been group related." (Ibid.)The Lopez court found an implied requirement of knowledge on the part of defendant insufficient to overcome the constitutional infirmities: "Without at least the insertion in this aspect of the condition of a knowledge element, [the defendant] was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise [the defendant] of the 'identified' items of gang dress before he was charged with a violation." (Id. at p. 634.) Accordingly, the court modified the defendant's conditions of probation to require that defendant not wear clothing known by him to be gang attire. (Id. at p. 638.) With this minor modification, the court found the defendant's probationary terms passed constitutional muster. (Ibid.) The court first held the challenged condition "suffers from constitutionally fatal overbreadth because it prohibits the probationer from associating with persons not known to him to be gang members." (Id. at p. 628.) To remedy this constitutional deficiency, the court ordered the condition modified to add a knowledge element. (Id. at pp. 629, 638.) With respect to the probationer's vagueness challenge, the court stated that "the word 'gang' in the challenged condition is, on its face uncertain in meaning," because although the word had recently "acquired generally sinister implications," it also had "considerable benign connotations." (People v. Lopez, supra, 66 Cal.App.4th at p. 631.) The court also concluded that "it is apparent the word was intended to apply only to associations which have for their purpose the commission of crimes" (id. at p. 632), and found it "appropriate" (id. at p. 634) to order modification of the condition to incorporate the statutory definition of a criminal gang. "By so amending the condition any due process concerns about it will be eliminated ...." (Id. at p. 634.) After observing that the term on its face was uncertain (id. at pp. 631), the court concluded that, taking the matter in the context of the condition, "gang" "was intended to apply only to associations which have for their purpose the commission of crimes." (Id. at p. 632.) The Lopez court thus resolved the vagueness problem by replacing "gang" with "criminal street gang" and referencing the statutory definition of the latter term found in the STEP Act under section 186.22. (Lopez, at pp. 632-634, 638.) It reasoned that section 186.22 had survived a variety of constitutional challenges (see, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 622-623), including an "attack on the same constitutional grounds advanced here by Lopez against condition No. 15" (Lopez, at p. 634), and therefore by amending the condition to incorporate the definitions in section 186.22, "any due process concerns about it will be eliminated and Lopez will be unambiguously notified of the standard of conduct required of him. " (Lopez, at p. 634.)