A.G.

I take the unusual step of writing a concurring opinion even though I am the author of the majority opinion. I believe the majority opinion accurately summarizes the law and properly applies that law to the narrow issues resolved by the majority opinion, and agree the true finding that A.G. violated San Diego Municipal Code section 58.0102 must be reversed. However, I believe there is an additional and significant basis for reversing the true finding that is not addressed by the majority opinion: whether the San Diego curfew ordinance is invalid because it violates the equal protection clauses of the federal and state Constitutions. I write separately to explain my view that the San Diego curfew ordinance is invalid under the equal protection clauses of the federal and state Constitutions because it burdens a minor’s First Amendment rights to speech and association without being narrowly tailored to serve the state interest.

A. A. G. ’s Facial Challenge

A.G. asserts the San Diego curfew ordinance is invalid under the rationale employed by Nunez by Nunez v. City of San Diego (9th Cir. 1997) 114 F.3d *1469 935 (Nunez) in which the court invalidated San Diego’s previous curfew law;…

The People alleged in an amended petition that A.G., a minor, came within the juvenile court jurisdiction under Welfare and Institutions Code 1 section 602 because she violated Vehicle Code sections 23136, subdivision (a), and 22349, subdivision (a), and the curfew provisions codified in San Diego Municipal Code section 58.0102. The court found true the allegations of the Vehicle Code section 22349, subdivision (a) violation, and the San Diego Municipal Code section 58.0102 violation, and found A.G. was a person described in sections 601 and 602. At the dispositional hearing, the court placed A.G. on six months’ probation.

A.G. challenges the true finding that she violated either San Diego’s curfew ordinance (San Diego Ord. No. 0-18416; hereafter the curfew ordinance) or San Diego Municipal Code section 58.0102, the codification of the curfew ordinance. She asserts both the curfew ordinance and San Diego Municipal Code section 58.0102 contain an implied prerequisite requirement for a true finding that she must have previously received a curfew violation warning citation, and there was no evidence she had previously received a warning citation. She also raises a due…