Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB801952. John N. Martin, Judge.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant pled guilty to being a convicted felon in possession of ammunition. (Pen. Code, § 12316, subd. (1).) In return, the court suspended imposition of sentence and placed defendant on probation on various terms and conditions. On appeal, defendant contends his gang-related probation conditions must be stricken as irrelevant or unconstitutionally vague, overbroad, or in violation of his freedom of travel. We agree that the court erred in imposing the gang registration requirement, and that condition must be stricken.
All future statutory references are to the Penal Code unless otherwise stated.
I
The factual background is taken from the probation officer’s report.
Defendant was a passenger in a vehicle the police had stopped for having no rear license plate. During the stop, defendant informed the officer that he was on felony probation. The officer asked defendant whether he had any illegal items. Defendant admitted having a box of ammunition, which was recovered from defendant’s pocket. The box contained 46 individual .44-caliber rounds.
II
DISCUSSION
At the sentencing hearing, defense counsel objected to certain gang-restriction probation conditions as unreasonable and unconstitutionally vague and overbroad. Defendant contends the court erred in imposing (1) the gang registration requirement (condition No. 16) as it was not supported by substantial evidence; (2) the prohibition from displaying gang signs (condition No. 17) and wearing, displaying, or possessing gang clothing and attire (condition No. 19) as unconstitutionally vague; and (3) the prohibition from being within one block of a school unless with prior approval (condition No. 18) or entering a courthouse unless he is a party, a defendant, or a witness (condition No. 20) as being an unconstitutional infringement on his freedom of travel.
We review the trial court’s imposition of the terms and conditions of probation pursuant to the abuse of discretion standard of review. (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) People v. Lent (1975) 15 Cal.3d 481 established a framework to determine the reasonableness of an adult probation condition. Lent held that an adult probation condition is unreasonable only if “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 . . . .’” (Id. at p. 486.)
It is undisputed that the gang conditions in this case were not related to the crime for which defendant was convicted and that the conditions relate to conduct that is not in itself criminal. Therefore, we may uphold the gang restriction conditions only if the conditions are “reasonably related to future criminality . . . .” (People v. Lent, supra, 15 Cal.3d at p. 486.)
A. Gang Registration Requirement
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.)
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; see also 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)); (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 is 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 without even finding defendant’s crime was “gang related” under section 186.30, subdivision (b)(3), but out of “an abundance of caution . . . .” In fact, no evidence really supports the requirement. The trial court had the facts underlying the offense from the probation report, which reflected that defendant was a passenger in a vehicle stopped for a traffic violation with a box of ammunition in his possession. This evidence supports a finding that at least one other person (the driver) was in the car with defendant but not the individual’s identity as a gang member. The trial court also knew from the probation report that defendant “used to gang with East Side San Bernardino” and had a tattoo stating “ESSB” on his chest. However, there was no evidence that this gang was an ongoing organization or group of three or more persons having a common name. There was also no evidence of the primary activities of this gang or evidence of whether the members had together or individually participated in a pattern of gang activity. The evidence shows defendant’s prior involvement in the gang but not necessarily his continuing relationship with the gang.
“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 trial court imposed a gang registration requirement pursuant to section 186.30 when the defendant pled guilty to committing an automobile burglary and subsequently violated his probation by associating with a known gang member. (Martinez, supra, 116 Cal.App.4th at pp. 757-758.) The appellate court resolved that imposition of a gang registration requirement is proper only where the underlying crime is proven to have been gang related, i.e., where the evidence supports a determination that it was committed, as defined in section 186.22, for the benefit of, at the direction of, or in association with any street gang. (Martinez, at pp. 760-762.) That court reversed the gang registration requirement, noting that “[a]uto burglary is a crime, but not one necessarily gang related, and the circumstances of the offense as described in the record before us fail to connect the offense with defendant’s gang activities.” (Id. at p. 762.) Even if the burglary was committed with an acknowledged gang member, the record must demonstrate that the offense was directed by, associated with, or benefited his criminal street gang. (Ibid.) The court concluded that a defendant’s personal affiliations and criminal record are relevant in determining whether a particular offense was gang related; however, in order to substantiate that a crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, some evidentiary support beyond defendant’s past record and associations must be adduced. (Ibid.) “The crime itself must have some connection with the activities of the gang . . . .” (Id. at p. 761.)
The People’s attempt to distinguish Martinez is unavailing. The record failed to provide some evidentiary support, other than merely defendant’s personal affiliation with the gang, for a finding that the crime of possession of ammunition was committed for the benefit of, at the direction of, or in association with a criminal street gang. Therefore, the gang registration requirement must be stricken.
B. Condition Nos. 17 (Gang Signs) and 19 (Gang Attire)
Defendant argues that condition Nos. 17 and 19 were unconstitutionally vague. We disagree.
Initially, we note these gang restriction conditions are reasonably related to defendant’s future criminality.
Defendant stated that he “used to gang with East Side San Bernardino [ESSB],” and had a tattoo of the gang’s initials on his chest. Given the broad scope of discretion given to the trial court in fashioning the terms and conditions of probation, the trial court reasonably could have determined that defendant was still involved in the ESSB gang.
Because defendant has been identified as a gang member, his disassociation from gang members will help prevent future criminality. In People v. Lopez (1998) 66 Cal.App.4th 615, the court held that gang probation conditions are “proper when imposed on adult offenders . . . .” (Id. at p. 625.) In Lopez the fact that there was “insufficient [evidence] to show that [Lopez’s] crime was in some manner gang related” did not prevent the court from upholding a gang restriction condition. (Id. at p. 626.) In upholding the restriction, the court considered that despite being in his early 20’s, Lopez’s “consistent and increasing pattern of criminal behavior warranted [the] conclusion by the trial court that [his] disassociation from gang-connected activities was an essential element of any probationary effort at rehabilitation . . . .” (Ibid.)
Lopez noted, “[P]robation terms have been approved which bar minors from being present at gang gathering areas, associating with gang members, and wearing gang clothing. [Citation.]” (People v. Lopez, supra, 66 Cal.App.4th at p. 624.) “Because ‘[a]ssociation 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.’ [Citation.]” (Ibid.) Furthermore, “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.) Moreover, the federal courts “have 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. [Citations.]” (Ibid., fn. omitted.)
We find defendant’s case to be similar to Lopez. Like Lopez, defendant is a young man -- 19 years of age at the time of sentencing -- who was caught with a box of ammunition in his pocket, has shown an increasing pattern of criminal behavior, and either has or has had an affiliation with a criminal street gang. Defendant informed the probation officer that he had purchased the box of bullets but refused to say for what purpose. It is reasonable to presume that defendant purchased the box of bullets for a gun to which he had access. Consequently, we conclude that the gang conditions are related to defendant’s successful rehabilitation and have a logical nexus to preventing future criminality.
“A probation condition is constitutionally overbroad when it substantially limits a person's rights and those limitations are not closely tailored to the purpose of the condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146.) “[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation . . . .’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) Similarly, “[a] probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
Here, the probation conditions are constitutionally vague because defendant cannot be certain what types of hand signs, apparel, or paraphernalia might be considered gang related by his probation officer. He may, indeed, have some idea of a number of actions and outfits which would amount to an infringement; nonetheless, without more, he can never be certain that any behavior he might engage in would or would not come within gang activity as interpreted by his probation officer. Although the conditions specifically permit his probation officer to inform him what types of behavior or dress would be violative of the terms, they do not require such communication. Moreover, even garb or gear lying outside what may have been definitively forbidden him by his probation officer could still come under the rubric of his probation terms. Thus, the probation officer could always find certain dress or gesticulations to be gang related even though defendant had never been made aware that such was the case. Nonetheless, we disagree with defendant’s suggestion that we strike the conditions. Rather, cases addressing the same or similar issues have found that simply modifying such conditions to include a term requiring knowledge on the part of defendant that his behavior violates the probationary terms suffices to resolve any constitutional infirmity.
Our state Supreme Court recently determined that a probation condition requiring that the defendant “not associate with anyone ‘disapproved of by her probation officer’” was unconstitutionally vague “in the absence of an express requirement of knowledge . . . .” (In re Sheena K., supra, 40 Cal.4th at p. 891.) This was because the condition itself did not notify the defendant in advance with whom she was prohibited from associating, nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) While that court recognized that it had previously approved of reading an implied requirement of knowledge into a similar probation condition, it rejected doing so in its case: “In the interest of forestalling future claims identical to defendant’s based upon the same language, we suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone ‘known to be disapproved of’ by a probation officer or other person having authority over the minor.” (Id. at p. 892.) Thus, it approved the appellate court’s modification of minor’s probationary conditions to include an explicit requirement of knowledge. (Id. at pp. 879, 892.)
In People v. Garcia (1993) 19 Cal.App.4th 97, the court held that a probationary term requiring that the defendant not associate with users and sellers of narcotics, felons, or ex-felons was constitutionally overbroad in failing to recognize that the defendant may, inadvertently, socialize with individuals unknown to him to fall within such categories. (Id. at p. 102.) Likewise, the court found an implicit recognition of the knowledge requirement within the condition incompatible with constitutional goals: “[T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.” (Ibid.) Hence, it explicitly modified defendant’s condition to prohibit him from associating with persons he knew to be users or sellers of narcotics, felons or ex-felons. (Id. at p. 103.)
In People v. Lopez, supra,66 Cal.App.4th 615, 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. (Id. at p. 622.) That court found the term constitutionally vague and overbroad in that it failed to put 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 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 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 obvious jurisprudential trend is towards requiring that a term or condition of probation explicitly require knowledge on the part of the probationer that he is in violation of the term in order for it to withstand a challenge for constitutional vagueness. We see no reason why this requirement should be limited to the construction of association terms. The People and defendant in his reply brief agree that the probation conditions must be read to incorporate the element of knowledge. Therefore, we shall order that defendant’s probationary condition Nos. 17 and 19 be modified to include a specific knowledge requirement as set forth in part III, post.
C. Condition Nos. 18 and 20
Defendant also argues that the court violated his fundamental constitutional right to travel by restricting him from coming within a block of schools (condition No. 18) and from entering courthouses unless he was a party, defendant, or subpoenaed witness (condition No. 20). He also claims these conditions “bear no rational relationship” to the crime he was convicted of or his “future criminality.”
Initially, as noted, ante, in part II.B., these gang restriction conditions are, reasonably related to defendant’s future criminality.
In addition, “[b]ecause probation is a privilege and not a right [citation], a probationer is not entitled to the same degree of constitutional protection as other citizens. Accordingly, even a probation condition which infringes a constitutional right is permissible where it is ‘“necessary to serve the dual purpose of rehabilitation and public safety.”’” (People v. Peck (1996) 52 Cal.App.4th 351, 362; see also People v. Jungers (2005) 127 Cal.App.4th 698, 703.) “However, probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant.” (Jungers, at p. 704; see also In re Sheena K., supra, 40 Cal.4th at p. 890.)
Gang-based probation conditions promote the goal of rehabilitation and public safety by forbidding conduct reasonably related to future criminality. (People v. Lopez, supra, 66 Cal.App.4th at pp. 625-626.) “[P]robationary 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.) In addition, since gang members are likely to appear at criminal proceedings in an attempt to intimidate witnesses and jurors, or to threaten defendants from rival gangs, the state certainly has a compelling interest in protecting those defendants, witnesses, and jurors in such proceedings. Because of those concerns, the state may be justified in restricting the freedom of travel and right to attend criminal court proceedings for offenders with demonstrated gang associations.
Although defendant did not admit in the instant proceedings that he was a gang member, there is sufficient evidence of his association with a gang -- his statement that he “used to gang” with the ESSB gang and the tattoo of this gang on his chest. Due to evidence of defendant’s gang associations, restrictions on his right to attend criminal court proceedings are justified by the state’s compelling interest in protecting the defendants, jurors and witnesses involved in criminal proceedings.
For these same reasons, we reject defendant’s claim that the school restriction condition violates his right to travel. The challenged condition serves the dual purpose of rehabilitation and public safety because it prohibits defendant from approaching a school campus, and therefore juveniles, for purposes of recruiting children into his gang. Hence, this condition serves as a deterrent for defendant to actively recruit on behalf of his gang at a convenient location, while protecting the children from being approached by defendant.
The trial court, therefore, properly exercised its discretion in imposing these probation conditions because they were reasonably related to defendant’s future criminality. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1121 [even conditions that regulate conduct not in itself criminal are valid as long as they are reasonably related to the crime a defendant was convicted of or to any future criminality].)
We reject defendant’s claim that the school-restriction condition would prevent him from obtaining information about “course offerings, enrolling in classes or attending public meetings.” This condition allows defendant to obtain prior administrative approval if he wishes to visit or get information regarding a school.
The courthouse restriction imposed here, however, is not restricted to the criminal courthouse or criminal proceedings, where it seems most likely that a gang member would appear in order to attempt to intimidate the jurors and adverse witnesses. Instead, it prohibits defendant’s presence in any courthouse or courtroom. Consequently, the probation condition was not carefully tailored, and was not reasonably related to the compelling state interest in protection of defendants and witnesses in criminal proceedings as well as in this defendant’s reformation and rehabilitation. (People v. Lopez, supra, 66 Cal.App.4th at p. 628; see also People v. Delvalle, supra, 26 Cal.App.4th at p. 879.) In order to render the condition constitutional, it must be modified to limit its scope to criminal court proceedings, criminal courthouse buildings, and criminal courtrooms. (See part III, post.)
Furthermore, the school-restriction probation condition (No. 18) suffers from the same lack of a knowledge requirement as condition Nos. 17 and 19, explained, ante, in part II.B. Therefore, we shall order that defendant’s probationary term No. 18 be modified to include a specific knowledge requirement as set forth in part III, post.
III
DISPOSITION
The Penal Code section 186.30 registration requirement is stricken.
We hereby modify defendant’s probation condition Nos. 16, 17, 18, and 19 to read as follows: No. 17, “Not knowingly display any gang hand signs”; No. 18, “You shall not knowingly be on any school campus or stop within 100 yards unless enrolled there or with prior administrative permission from school authorities”; No. 19, “Not knowingly wear, display or have in your possession any item associated with gang dress or any items prohibited by the probation officer. [¶] Including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang”; and No. 20, “You shall not appear at any criminal court proceeding or at any criminal courthouse building, including the lobby, hallway, courtroom, or parking lot unless you are a party, defendant, or subpoenaed as a witness to a criminal court proceeding, or you have the express permission of your Probation Officer.” In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.