Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC631732
McAdams, J.
Defendant Carlos Licea Aguilar was convicted by plea of one felony count of possession of a billy club (Pen. Code, § 12020, subd. (a)(1)) and one misdemeanor count of possession of a switchblade knife (§ 653k). Pursuant to the plea agreement, the court dismissed a gang enhancement (§ 186.22, subd. (b)(1)(A)) attached to the possession of a billy club count, suspended imposition of sentence, and placed defendant on probation for three years, on the condition that he serve 45 days in the county jail. Other conditions of his probation included submitting to chemical testing as directed by the probation department, completion of a substance abuse program, and gang registration pursuant to sections 186.30 and 186.32.
All further statutory references are to the Penal Code, unless otherwise indicated.
Defense counsel objected to the chemical testing, substance abuse program, and gang registration conditions at the time of sentencing.
On appeal, defendant contends there was insufficient evidence to support imposition of the gang registration requirement and argues the court abused its discretion when it required him to submit to chemical testing and complete a substance abuse program as conditions of his probation. We agree with defendant’s first contention and will remand for further hearing on the question of gang relatedness.
Since defendant was convicted by plea, the facts are based on the probation report. According to defendant’s brief, there was no preliminary hearing.
At approximately 8:30 p.m. on May 15, 2006, a San Jose police officer stopped the car defendant was driving. Defendant did not have a valid driver’s license and his two passengers were on searchable probation. Defendant and both of his passengers were wearing blue clothing.
Defendant consented to a search the vehicle. The officer found a “butterfly” knife inside the glove box, photographs showing defendant displaying gang signs in the center console, and two small baseball bats and a kitchen knife in the trunk. Defendant told the officer the knives and the baseball bats belonged to him. He said he needed them for protection because he gets “jumped” a lot and stated that he had been jumped by Nortenos a few weeks prior.
Defendant told the probation officer he had an eighth grade education and worked part-time for a janitorial service. He had four years experience working in the maintenance field and hoped to start working full time the following month and eventually become a supervisor. He was 20 years old at the time of the offenses in this case.
DISCUSSION
I. Gang Registration
Defendant contends the gang registration order must be reversed because there is insufficient evidence to support the trial court’s finding that the crimes at issue were gang-related within the meaning of section 186.30, subdivision (b)(3).
When the appellant asserts there is insufficient evidence to support the trial court’s judgment or order, our review is circumscribed. (In re Jorge G. (2004) 117 Cal.App.4th 931, 941 (Jorge G.).) “On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact” could make the requisite finding under the governing standard of proof. (People v. Stanley (1995) 10 Cal.4th 764, 792; Jorge G. at pp. 941-942.)
Section 186.30 provides that “any person convicted in a criminal court” of one of three specified types of crimes shall register with the local law enforcement agency as a criminal street gang member. (§ 186.30; People v. Martinez (2004) 116 Cal.App.4th 753, 758-759 (Martinez).) The crimes specified in the statute include: (1) participating in a criminal street gang in violation of section 186.22, subdivision (a) (§ 186.30, subd. (b)(1)); or (2) any crime where a gang enhancement pursuant to section 186.22 subdivision (b) has been found to be true (§ 186.30, subd. (b)(2)); or (3) “any crime that the court finds is gang related at the time of sentencing” (§ 186.30, subd. (b)(3)). If any of the three specified conditions are found to exist, a gang registration order is mandatory. (Martinez, at p. 759; see also In re Eduardo C. (2001) 90 Cal.App.4th 937, 943.) Here, the court ordered registration after finding defendant’s crime was “gang related” under section 186.30, subdivision (b)(3).
“Upon a court’s finding that a person was involved in a gang-related crime (§ 186.30, subd. (b)[(3)]), the court is required to notify the person of his or her duty to register (§ 186.31) ‘with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first.’ (§ 186.30, subd. (a); cf. § 186.32, subd. (a)(1)(A).) Registration requirements are spelled out in section 186.32. The registration requirements last for five years. (§ 186.32, subd. (c).) A registrant must keep law enforcement apprised of any change of address. (§ 186.32, subd. (b).) It is a misdemeanor to knowingly violate the registration requirements. (§186.33, subd. (a).)” (Martinez, supra, 116 Cal.App.4th at p. 759, fn. 4.)
In Martinez, the court addressed the issue of when a crime is “gang related” for the purpose of section 186.30, subdivision (b)(3). The defendant, a “ ‘certified Sureno gang member,’ ” pleaded no contest to auto burglary. (Martinez, supra, 116 Cal.App.4th at p. 757.) At sentencing, the court ordered gang registration pursuant to section 186.30, subdivision (b)(3). On appeal, the defendant admitted prior gang involvement, but asserted he was not required to register because the auto burglary was not “gang related.” (Id. at p. 758.) The defendant argued that section 185.30 authorizes a gang registration order only for the nature of the crimes for which he was being sentenced, not his past gang affiliations. The Attorney General argued that the defendant’s lengthy criminal history, including a probation violation, supported the prosecution’s contention that the defendant’s auto burglary was related to his membership in a gang. (Ibid.)
The appellate court struck the gang registration requirement. “[B]ecause registration is an onerous burden that may result in a separate misdemeanor offense for noncompliance, a registration requirement may not be imposed upon persons not specifically described in the statute.” (Martinez, supra, 116 Cal.App.4th at p. 760.) The court held that “a crime may not be found gang related within the meaning of section 186.30 based solely upon the defendant’s criminal history and gang affiliations.” (Martinez, supra, 116 Cal.App.4th at p. 761.)
The court explained that the crime itself must have some connection with the activities of a gang, which means a “criminal street gang” as defined in section 186.22, subdivisions (e) and (f), and concluded that a crime is “gang related” in this context when it is committed “ ‘ “for the benefit of, at the direction of, or in association with” a street gang.’ ” (Martinez, supra, 116 Cal.App.4th at p. 762.) The court explained: “We do not conclude that a defendant’s personal affiliations and criminal record are without consequence in finding a ‘gang related’ crime within the meaning of section 186.30. To the contrary, a defendant’s history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of section 186.30. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related. However, the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (Ibid.) The court noted that while auto burglary is a crime, it is not necessarily gang related and concluded that the circumstances of the offense as described in the record failed to connect the offense with the defendant’s gang activities. While the probation report indicated the auto burglary was committed by defendant and a companion, the accomplice was not identified as a gang member and there was no evidence the auto burglary was directed by, associated with, or benefited defendant’s criminal street gang. Because there was no evidence connecting Martinez’s auto burglary with his gang activities, the court found no basis for the trial court’s conclusion that the offense was gang related and struck the gang registration requirement. (Id. at pp. 762-763.)
Defendant relies on Jorge G., a case in which the court discussed the evidentiary showing necessary to find that an offense is “gang related” for the purpose of section 186.30, subdivision (b)(3). In Jorge G., the defendant and six or seven other youths, all of whom wore red clothing associated with the Norteno gang, created a disturbance by shouting at a man. The defendant fled the scene after the police arrived. (Jorge G., supra, 117 Cal.App.4th at p. 937.) After he admitted misdemeanor allegations of disturbing the peace and resisting an officer, the defendant was placed on probation with a condition requiring gang registration. He challenged the registration requirement on appeal.
The appellate court agreed with Martinez that the term “gang related” in section 186.30, subdivision (b)(3) means related to a “criminal street gang” as defined in section 186.22, subdivisions (e) and (f). (Jorge G., supra, 117 Cal.App.4th at pp. 938-940, 944.) Relying on that definition, the court set forth five factual elements that must be present to support the trial court’s finding that an offense is gang-related within the meaning of section 186.30, subdivision (b)(3). Those elements include: “(1) an ongoing organization or group, (2) of three or more persons, (3) having as one of its primary activities the commission of the crimes enumerated in section 186.22, subdivision (e)(1)-(25), (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity.” (Jorge G., at p. 944.) Relying on the definition of “pattern” in section 186.22, subdivision (e), the court held that “[t]his pattern of gang activity must consist of: (a) two or more of the offenses enumerated in section 186.22, subdivision (e)(1)-(25), provided that at least one offense occurred after the effective date of the statute; (b) the last offense occurred within three years of the one before it; and (c) the offenses were committed on separate occasions or by two or more persons.” (Jorge G., at p. 944.)
The Jorge G. court concluded that there was insufficient evidence that the primary activity of the gang at issue in that case included commission of the offenses enumerated in section 186.22, subdivision (e) (element number 3) or that the gang had committed the number of predicate offenses necessary to prove a pattern of gang activity (element number 5) and remanded for a further hearing on the question of gang relatedness. (Jorge G., supra, 117 Cal.App.4th at pp. 945-946.)
Defendant argues there is no evidence the unidentified gang in this case met the requirements of Jorge G. We agree. In this case, as in Jorge G., there is no evidence regarding the “primary activity” of the gang that defendant associated with (element 3); nor is there evidence of a “pattern” of criminal activity engaged in by the members of the gang (element 5). We therefore conclude there is insufficient evidence that defendant’s crime was related to a criminal street gang. We shall therefore remand the matter to the trial court to conduct a further hearing on the question of the gang-relatedness of defendant’s offense. (Jorge G., supra, 117 Cal.App.4th at pp. 946-947.)
II. Chemical Testing and Substance Abuse Program Conditions
Defendant asserts the court abused its discretion when it ordered him to submit to chemical testing and complete a substance abuse program as conditions of his probation because these requirements are not directly related to his crime. He argues he had no history of alcohol or drug abuse and there was no evidence his moderate consumption of beer and marijuana contributed to the instant offenses.
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to … section 1203.1. [Citations.] ‘The court may impose and require … [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.’ [Citation.] The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.] As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” ’ ” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
“A condition of probation will not be held invalid unless 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. . . .’ ” (People v. Lent (1975) 15 Cal.3d 481, 486, superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) A probation condition will be invalidated only where all three of these criteria are satisfied. (Lent, at p. 486.) The touchstone is whether the condition is reasonable under all of the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 234.)
At the time of the offenses and sentencing in this case, defendant was 20 years old. He told the probation officer that he began drinking alcohol at age 15, that he drinks five to six beers on the weekend, and that he “does not drink to the point of intoxication.” Defendant started smoking marijuana about a year before his interview with the probation officer. He smoked marijuana a little more that once a month and “normally smoke[d] ‘a blunt’ at a time.” Defendant denied using any other controlled substances and did not believe “drugs or alcohol [were] problematic in his life.” He last drank alcohol and smoked marijuana on September 23, 2006, three days before his interview with the probation officer. He only had a “couple of hits” of marijuana at that time.
We conclude the chemical testing and drug program conditions are reasonable in this case. Although these probation conditions had no relationship to defendant’s weapons offenses, they do not meet the second and third criteria from Lent for invalidation. With regard to the second criterion that the condition relates to conduct that is not in itself criminal, we note that defendant was underage when he began drinking and that he drank regularly, even though he was not yet 21 years old. In addition, he engaged in illegal conduct when he smoked marijuana. Thus, defendant cannot show that the conduct the condition seeks to control was not in itself criminal.
In addition, these conditions will do much to aid in defendant’s reformation and rehabilitation. The probation officer reported that defendant was arrested two months after the instant offenses for driving without a license (Veh. Code, § 12500, subd. (a)) and failure to report an automobile accident (Veh. Code, § 20002, subd. (a)). He was subsequently charged with drug possession (Health & Saf. Code, § 11377, subd. (a)) in another matter. After his arrest in this case, defendant continued to engage in illegal conduct, including a drug offense. “Insofar as a probation condition serves the statutory purpose of ‘reformation and rehabilitation of the probationer,’ (§ 1203.1) it necessarily follows that such a condition is ‘reasonably related to future criminality’ and thus may not be held invalid whether or not it has any ‘relationship to the crime of which the offender was convicted.’ ” (People v. Balestra (1999)76 Cal.App.4th 57, 65 (Balestra).) Thus, the conditions at issue do not meet the third criterion for invalidity from Lent, that the probation condition must require or forbid conduct that is not reasonably related to future criminality.
Defendant relies on People v. Kiddoo (1990) 225 Cal.App.3d 922, 924, (overruled on other grounds in People v. Welch (1993) 5 Cal.4th 228, 236-237) a case in which the appellate court reviewed a condition of probation forbidding a narcotics offender from possessing or consuming alcoholic beverages or frequenting those places where the sale of alcohol was the primary business. In spite of a probation report that indicated that the defendant had used illegal drugs and alcohol since he was 14 years old and was currently a “social drinker” who used methamphetamine “sporadically,” the appellate court found the no-alcohol condition was not “reasonably related to future criminal” behavior and struck the condition. (Id. at pp. 927-928.)
Appellate courts have subsequently rejected the argument, accepted in Kiddoo, that a no-alcohol condition is somehow not “reasonable.” In People v. Beal (1997) 60 Cal.App.4th 84, the court disagreed “with the fundamental assumptions in Kiddoo that alcohol and drug abuse are not reasonably related.” (Id. at pp. 86-87, fn. omitted.) The court stated, “Whether the trial court determines to impose such a condition is thus within its sound discretion and, if it does, the defendant must either submit to the condition or, if she considers the condition ‘more harsh than the sentence the court would otherwise impose, [exercise] the right to refuse probation and undergo the sentence.’ [Citations.] That the use of alcohol is not otherwise illegal does not render the defendant’s decision to accept such a condition subject to challenge on appeal.” (Id. at p. 87.)
In Balestra, the court observed that Kiddoo “is simply inconsistent with a proper deference to a trial court’s broad discretion in imposing terms of probation, particularly where those terms are intended to aid the probation officer in ensuring the probationer is complying with the fundamental probation condition, to obey all laws.” (Balestra, supra, 76 Cal.App.4th at p. 69.)
For all these reasons, we conclude that imposition of the chemical testing and substance abuse program conditions of probation were reasonable in this case.
DISPOSITION
The order requiring defendant to register as a gang member pursuant to section 186.30 is reversed. In all other respects, the judgment (order of probation) is affirmed. The case is remanded to the trial court for the People to prove, if they choose, that defendant’s crime was gang related.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.