Opinion
H036821
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEJO ALEX ALEGRE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. Nos. SS101140B, SS102375A)
After finding that defendant Alejo Alex Alegre had violated his probation in two matters, the trial court sentenced him to prison for three years eight months for second degree robbery (Pen. Code, § 211), and possession of alcohol in jail (§ 4573.8). On appeal, defendant contends that there is insufficient evidence to support the finding that he violated his probation, and that it is unclear whether the court relied on a valid or an invalid theory in revoking his probation. For the reasons stated below, we will reverse the judgment and remand the matter to the trial court with directions to conduct a new probation revocation hearing.
All further statutory references are to the Penal Code.
BACKGROUND
Defendant was charged by complaint filed April 19, 2010, in case No. SS101140B, with second degree robbery (§ 211; count 1) and dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 2). The complaint further alleged that defendant committed the offenses for the benefit of or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) On July 7, 2010, the complaint was amended to add as count 3 an allegation that defendant committed a misdemeanor violation of section 186.22, subdivision (a), active participation in a criminal street gang. Defendant entered into a negotiated plea agreement whereby he pleaded nolo contendre to counts 1 and 3 on condition that he receive felony probation. On August 18, 2010, the court suspended imposition of sentence and placed him on probation for three years with various terms and conditions. As relevant here, three of the conditions of probation were that he was to "[o]bey all laws"; to "not . . . associate with any individuals [he] know[s] or suspect[s] to be gang members, drug users, or on any form of probation or parole supervision, without the express permission of the Probation Department"; and to serve 365 days in jail, with 186 days custody credit.
Defendant was charged by information filed November 12, 2010, in case No. SS102375A, with possession of alcohol in jail (§ 4573.8). The information further alleged that he had a prior strike. (§ 1170.12.) On December 17, 2010, defendant pleaded nolo contendre to the substantive offense and admitted the strike prior. Based on this plea, the court found defendant in violation of probation in case No. SS101140B, and revoked his probation. On January 7, 2011, in case No. SS101140B, the court sentenced defendant to three years in prison, suspended execution of the sentence, and placed him probation for "the balance of the probationary period, on the same terms and conditions as originally imposed." In case No. SS102375A, the court granted defendant's oral motion to strike the strike, sentenced him to the eight months in prison (one-third the middle term) consecutive to the term in case No. SS101140B, suspended execution of the sentence and placed him on probation "on the same terms and conditions as imposed in [case No.] SS101140[B]," with some additional conditions.
On January 21, 2011, the probation officer filed a petition pursuant to section 1203.2 in both matters, alleging that defendant had violated his probation as, "[o]n January 13, 2011, the defendant was associating with Jonathan Quintero, a known Norteno gang member." The probation violation hearing was held on March 4, 2011. The testimony at the hearing was as follows.
Aaron Brooks testified that on January 13, 2011, he was in a car with his friends Jonathan Quintero and defendant when it was stopped by the police. At the time, Brooks had known Quintero for over five years, as they had played football together in middle school; he had known defendant for a few months; and he had "hung out with the two of [them]" "a few times." Brooks was walking home from his girlfriend's house, when Quintero and defendant picked him up. He had been in the car for no longer than 10 minutes when the car was pulled over. He provided his passport to Officer Salinas as his identification, and he was released at the scene. He is not involved in criminal street gangs and he has no gang contacts. He does not know whether Quintero is involved in the Norteño gang, and he did not tell Officer Salinas that he was. Nor did he say anything about defendant being involved in the gang.
Salinas Police Officer Justin Salinas testified that around 3:15 p.m. on January 13, 2011, he made a car stop in area of San Juan Grade and Boronda. Defendant was the driver of the car. He provided a valid driver's license, and he said that he was on probation. Brooks was seated in the right rear passenger seat. He provided a passport as valid identification. The man in the front passenger seat provided a false name and no identification, and he denied being on probation or parole. Ultimately, the officer determined that the man was Jonathan Quintero, and that he was on parole. The officer is familiar with Quintero, and he knows that Quintero is a Norteño gang member. Because the officer had not had contact with Quintero for a couple years and Quintero looked a little different than he did before, the officer did not recall who Quintero was "until after." Although the officer observed tattoos on Quintero, a Huelga bird on his left ankle and Salas on his abdomen, which are indicative of being a Norteño gang member, the tattoos were not visible at the time the officer initiated the traffic stop, and neither defendant nor Quintero were wearing anything red. The officer asked Brooks to estimate how many times he had "hung out with these two other individuals, that would be the three of them together," and Brooks responded, "About 100." The officer asked Brooks if he knew whether both defendant and Quintero were "Northerners," and Brooks said "something to the effect of, 'Well, yeah.' " Brooks was released at the scene. Defendant and Quintero were taken into custody, and the officer did not get a statement from defendant. The officer searched defendant's car, but he did not find any contraband in it.
Defense counsel argued that "at the time of this particular stop - there is no indication that [defendant] knew that at the time Mr. Quintero was either an active gang member or participating in the Norteno criminal street gang or was on parole." The prosecutor argued, "I think Mr. Quintero is a known Norteno gang member. Mr. Brooks admits that to the officers at the time. [¶] And then you do have Mr. Quintero's efforts to conceal his improper association with somebody that he knows he should not be with.
Now, [defendant] has to identify himself because he's in the driver's seat. The passenger thinks 'maybe I can get away with it' and tries to do that. [¶] But I think there is more than sufficient evidence in a probation violation hearing to find him in violation for this association."
The court ruled as follows: "The Court does find from the evidence presented and the circumstances in their entirety the inconsistency of the statements, the reason for any inconsistency, and the nature of those inconsistent statements that there is a violation of probation; specifically that probationer here, [defendant], was not to associate with any individuals who you knew or suspected to being gang members. [¶] And the circumstantial evidence is more than sufficient to indicate that the Defendant knew or suspected or should have suspected that Mr. Quintero was, in fact, a known gang member. [¶] And therefore, the Defendant is found in violation of probation in each of these matters. The allegation is found true."
On April 8, 2011, the court terminated probation in case No. SS101140B, and sentenced defendant to prison for the previously suspended term of three years. In case No. SS102375A, the court terminated probation and sentenced defendant to the previously suspended consecutive term of eight months.
DISCUSSION
Defendant contends that there is insufficient evidence to support the trial court's finding that he violated his probation by associating with individuals he "know[s] or suspect[s] to be gang members." "[T]here was insufficient evidence to prove [defendant] had knowledge of Mr. Quintero's association with street gangs and Mr. Quintero actually was a gang member." In a supplemental brief, defendant contends that the order revoking probation must be reversed because it is unclear whether the court revoked probation based on a valid or an invalid ground.
The Attorney General contends that there is substantial evidence in the record to support the trial court's finding. "There was substantial evidence that [defendant] knew Quintero was a member of the Norteño criminal street gang and that [defendant] willfully violated probation by allowing him to ride in his car." However, the Attorney General concedes that, "[b]ecause it is unclear from the court's ruling whether it relied on an improper ground in revoking probation the matter must be remanded for a new revocation hearing."
"Pursuant to Penal Code section 1203.2, subdivision (a), . . . a court is authorized to revoke probation 'if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . .' " (People v. Rodriguez (1990) 51 Cal.3d 437, 440 (Rodriguez).) "It has long been recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation." (Id. at p. 443.) The statute thus "confer[s] great flexibility upon judges making the probation revocation determination." (Ibid.) A preponderance of the evidence standard is appropriate because revocation " 'deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special . . . restrictions.' " (People v. Coleman (1975) 13 Cal.3d 867, 877, fn. 8, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480; see also, Rodriguez, supra, 51 Cal.3d at p. 442.)
"In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts. Where probation fails as a rehabilitative device, as evidenced by the probationer's failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial. [Citation.]" (Rodriguez, supra, 51 Cal.3d at p. 445.) Consequently, "[t]he role of the trial court at a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he [or she] can be safely allowed to remain in society." (People v. Monette (1994) 25 Cal.App.4th 1572, 1575.)
There must, of course, be a factual basis to support an order revoking probation. (In re Stallings (1970) 5 Cal.App.3d 322, 334, disapproved on another point in People v. Cookson (1991) 54 Cal.3d 1091, 1098-1100.) Yet, " '[r]evocation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it.' " (People v. Zaring (1992) 8 Cal.App.4th 362, 378, quoting People v. Buford (1974) 42 Cal.App.3d 975, 985.) "[A] grant of probation is not a matter of right but an act of clemency, and a decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court." (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) " '[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . . ' " (Rodriguez, supra, 51 Cal.3d at p. 443.)
In this case, the trial court found that defendant violated his probation by associating with Quintero, whom defendant "knew or suspected or should have suspected . . . was, in fact, a known gang member." In People v. Gabriel (2010) 189 Cal.App.4th 1070 (Gabriel), this court held that the word "suspect" in a probation condition lacked sufficient specificity and thus failed to provide the defendant with adequate notice of what was expected of him when he lacked actual knowledge that a person is a gang member. We also held that inclusion of this word rendered the probation condition insufficiently precise for a court to determine whether a violation had occurred. Accordingly, in order to withstand a constitutional challenge on the ground of vagueness, the phrase "or suspect to be" had to be deleted from the probation condition that required the probationer to " '[n]ot associate with any individuals you know or suspect to be gang members . . . .' " (Id. at p. 1073.)
Revocation of probation may not be sustained where the revocation is premised in part upon a legally invalid theory. (People v. Self (1991) 233 Cal.App.3d 414, 419; see also In re Babak S. (1993) 18 Cal.App.4th 1077, 1089-1090.) Because the court found that defendant was associating with Quintero, whom he "knew or suspected or should have suspected . . . was, in fact, a known gang member," the revocation of probation here was premised in part upon a legally invalid theory. As the Attorney General concedes, defendant cannot be found in violation of his probation if he simply suspected or should have suspected, but did not actually know, that Quintero was a gang member. (Gabriel, supra, 189 Cal.App.4th at p. 1073.) Accordingly, we must reverse the judgment and remand the matter to the trial court with directions to conduct a new probation revocation hearing to determine whether on January 13, 2011, defendant knew that Quintero was a gang member.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with directions to conduct a new probation revocation hearing in accordance with the views expressed herein.
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
PREMO, ACTING P.J.
ELIA, J.