Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. WF00600.
Bamattre-Manoukian, Acting P.J.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), defendant Mario Adrian Arce-Sanchez pleaded no contest to misdemeanor participation in a criminal street gang (§ 186.22, subd. (a)), and felony carrying a concealed firearm on his person (§ 12025, subd. (a)(2)). The trial court suspended imposition of sentence and placed defendant on probation for 36 months with various terms and conditions, including that he serve 180 days in county jail with 78 days credit. Additionally, the court ordered that defendant comply with various gang terms and conditions of probation.
All further statutory references are to the Penal Code.
On appeal, defendant contends that (1) his motion to suppress should have been granted because the officer conducted a pat search without reasonable suspicion that defendant was armed and dangerous; (2) several of the gang conditions of probation should be stricken or modified because they violate his constitutional rights; (3) the court failed to award him all the presentence custody credits he was entitled to at the time of his sentencing; and (4) he is entitled to additional presentence custody credits under recently amended section 4019. We find that several of the contested probation conditions must be modified, but we find no other error. We decline to address defendant’s claim that he is entitled to additional presentence custody credits for reasons we will explain. Therefore, we will order modification of the gang conditions of probation, and will affirm the order of probation as so modified.
BACKGROUND
Defendant was charged by first amended felony complaint with active participation in a criminal street gang (§ 186.22, subd. (a); count 1), and carrying a concealed firearm on his person (§ 12025, subd. (a)(2); count 2). The complaint further alleged that the offense in count 2 was committed for the benefit of and in association with a criminal street gang. (§ 186.22, subd. (b)(1).) Defendant unsuccessfully moved at the preliminary examination to suppress evidence (§ 1538.5, subd. (f)(2)), and the magistrate held defendant to answer on both counts. An information was filed charging defendant with the same offenses. Defendant renewed his motion to suppress, and submitted the renewed motion solely on the transcript of the preliminary examination. As relevant to this appeal, the testimony at the preliminary examination was as follows.
Around 11:30 a.m. on May 27, 2009, Watsonville Police Officer Charles Bailey was patrolling the area of Clifford and Pennsylvania Avenues in a marked patrol car. While Officer Bailey was exiting a parking lot, he saw defendant riding a bicycle northbound for 25 to 30 yards on the sidewalk of Pennsylvania Avenue approaching Clifford. The officer had never encountered defendant before, but he thought that defendant might be a truant, and riding a bicycle on the sidewalk is a violation of the Watsonville Municipal Code. Defendant was wearing an oversized, white T-shirt that went down below his waist. Officer Bailey lost sight of defendant for five to 10 seconds when some vehicles passed in front of him, and when he saw defendant again, defendant was walking his bicycle. The officer pulled over to the curb, exited the patrol car, and asked defendant to stop.
Defendant stopped and Officer Bailey approached him. Defendant told the officer that he was 19 years old and the officer asked defendant for his identification. Defendant started to reach for his back pocket. The officer told defendant to stop because the officer saw that defendant had four dots tattooed across the fingers of his left hand which, in the officer’s training and experience, is a Norteño gang tattoo; the area is a high crime area and “historically” had “high” Hispanic gang activity; a Norteño gang-related shooting had recently occurred one-half mile away, another had occurred “really close” to the area in the prior week, and a third had occurred elsewhere in the city in the prior week; “typically” after a gang-related shooting in the city there is a “heightened rise in activity and gang members carrying guns for protection”; defendant’s long T-shirt concealed the pockets of his pants; the officer did not “feel comfortable” with defendant reaching into an area that the officer could not see; and the officer suspected that his safety was in danger. The officer asked defendant if he had any weapons in his possession, and defendant replied no.
Officer Bailey told defendant that he was going to pat search him. The officer grabbed defendant’s left arm in order to put it behind his back, and defendant said, “ ‘I have a weapon.’ ” The officer felt the butt of a gun inside defendant’s front waistband. The officer removed the gun, placed it on the ground behind him, and handcuffed defendant. The officer later determined that the gun had nine live rounds in its magazine. The officer transported defendant to the police station and read defendant his Miranda rights. Defendant waived his rights but he refused to say anything about the gun. He said that he was “a northern gang member, ” and that he “hangs out with other northern gang members, ” but he refused to be more specific. He denied that he had been “jumped into” a gang.
Miranda v. Arizona (1966) 384 U.S. 436.
Watsonville Police Department Gang Investigator Skip Prigge testified that the area around Clifford and Pennsylvania Avenues is controlled by Norteño gang members. The primary activities of Norteños in the area are the commission of stabbings, slashings, shootings, robberies, and sales of narcotics. Four dots on the knuckles of the left hand is the most common Norteño gang tattoo, and a non-gang member in a gang area would not be safe having a visible gang-related tattoo. Someone can become a Norteño gang member by being “jumped in, ” or by getting “worked in.” To get “worked in” you would have to attack, stab, or shoot a rival gang member, participate in a drive-by shooting, or do some form of “work” for the gang, such as delivering or carrying a weapon or narcotics.
The magistrate denied the motion to suppress at the preliminary examination without stating any reasons for her decision. The trial court denied the renewed motion to suppress at a special hearing on June 12, 2009. Following a break in the proceedings after the court’s ruling on the renewed motion, the parties informed the court that they had come to a resolution of the matter. As stated by defendant’s counsel, the agreement was as follows: “Mr. Arce Sanchez will be pleading no contest to Count 1, as a misdemeanor, a [section] 186.22, as a misdemeanor; as well as Count 2, the [section] 12025(a)(2), as a felony, for 180 days county jail – Mr. Arce Sanchez has 78 days credits as of today – as well as all the appropriate terms, gang terms, et cetera.”
The court granted the prosecutor’s motion to amend the information by reducing count 1 to a misdemeanor, and defendant pleaded no contest to count 1 as amended and to count 2. In light of the plea, the prosecutor struck the criminal street gang enhancement (§ 186.22, subd. (b)(1)) as to count 2. Defendant waived his right to a probation report. The court suspended imposition of sentence and placed defendant on probation for 36 months with various terms and conditions, including that he “serve 180 days in the county jail; credit 78 days already served.” The court asked defendant if he had had “the opportunity to review the Santa Cruz County gang terms, ” and both defendant and his counsel responded that he had. The court stated that it “would incorporate those terms into your probation grant.” In addition, the court stated, “I will also order that you comply with the general terms of probation. Everything is going to be written for you. There are terms on the back as well. (Indicating.)” Defendant responded by nodding his head. “And you are subject to search and seizure for weapons and gang paraphernalia.” “Do not possess any firearm or other dangerous or deadly weapon.”
The record on appeal includes the clerk’s “minute order” for the June 12, 2009 hearing, a separate “Superior Court of California, County of Santa Cruz, Probation/Conditional Sentence Order, ” and a document titled “Santa Cruz County Probation Department, Gang Probation Terms.” Defendant signed and dated the latter two documents on June 12, 2009. The “Probation/Conditional Sentence Order” does not include any specific gang conditions of probation other than to state: “Comply with Santa Cruz County Probation Gang terms as per attach.”
The minute order comprises four pages. On pages 2 and 3 are 31 terms and conditions of probation, including various gang-related terms and conditions, but defendant did not sign this document.
DISCUSSION
The Motion to Suppress
Defendant contends that his Fourth Amendment rights were violated when Officer Bailey conducted a pat search of him without reasonable suspicion to believe that defendant was armed with a weapon. “Nothing about [defendant’s] conduct was suspicious, and factors such as gang activity in the area were not sufficiently particularized to [defendant] to satisfy the Fourth Amendment. Reasonable suspicion was therefore lacking.” The Attorney General contends that Officer Bailey had reasonable suspicion to believe that defendant was armed.
“Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, ‘the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.’ [Citation.] ‘We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]’ [Citation.] We affirm the trial court’s ruling if correct under any legal theory. [Citation.]” (People v. Hua (2008) 158 Cal.App.4th 1027, 1033; see also People v. Snead (1991) 1 Cal.App.4th 380, 383-384.) “ ‘An appellate court must view the evidence in the light most favorable to [the prevailing party] and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘Reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding.’ [Citation.]” (People v. Snead, supra, at p. 384.)
The Fourth Amendment protects persons against unreasonable searches and seizures. In Terry v. Ohio (1968) 392 U.S. 1 (Terry), the United States Supreme Court determined that “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Id. at p. 27.) “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Id. at p. 21, fn. omitted.) “[S]uch a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. [Citation.] The sole justification of the search... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Id. at p. 29.)
In reviewing the Fourth Amendment reasonableness of an officer’s conduct, we must consider the totality of the circumstances known to the officer when the search was conducted. (Terry, supra, 392 U.S. at p. 27; People v. Souza (1994) 9 Cal.4th 224, 231 (Souza); People v. Avila (1997) 58 Cal.App.4th 1069, 1074.) “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch, ’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Terry, supra, 392 U.S. at p. 27.) “Reasonable suspicion must be based on ‘commonsense judgments and inferences about human behavior.’ [Citation.] The determination of reasonableness is ‘inherently case-specific.’ [Citation.]” (In re H.M. (2008) 167 Cal.App.4th 136, 143-144 (H.M.).)
“Reasonable suspicion... cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area. [Citation.]” (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.) “[M]ere presence in a high crime area is not, standing alone, ‘sufficient to justify interference with an otherwise innocent-appearing citizen....’ [Citation.]” (Souza, supra, 9 Cal.4th at p. 241; People v. Medina (2003) 110 Cal.App.4th 171, 177.) “Even recent, specific crimes, without additional factors specific to the defendant, are not sufficient. [Citation.]” (Perrusquia, supra, 150 Cal.App.4th at p. 233.) Although officers may “give appropriate consideration to their surroundings and... draw rational inferences therefrom” (Souza, supra, 9 Cal.4th at p. 241), an officer may not conduct a pat search if the officer has no other reason to suspect the person is armed. (People v. Sandoval (2008) 163 Cal.App.4th 205, 212.)
In this case, the magistrate impliedly found that the totality of the circumstances at the time of Officer Bailey’s decision to conduct the pat search of defendant-including the officer’s knowledge that the area was a high crime area, his knowledge of recent Norteño gang-related shootings in the area, his knowledge that “typically” many gang members carry weapons after a gang-related shooting has occurred, defendant’s Norteño gang-related tattoo, defendant’s oversized T-shirt that covered his pants pockets, and defendant’s attempt to reach into his back pocket-were sufficient to establish the officer’s reasonable suspicion that his safety was in danger. We agree with the magistrate that the totality of the circumstances supported the officer’s pat search for a weapon and that the trial court did not err in denying the motion to suppress.
A pat search was upheld in H.M., because the minor ran through heavy traffic, sweating profusely and nervously looking around, causing officers to believe he had been involved in some kind of criminal activity; the area was known for gang activity; the minor was known to the officers to be an admitted gang member; and there had been a shooting a block away the previous day. “Viewed objectively, through the lens of common sense and experience, H.M.’s odd behavior strongly suggested criminal activity was afoot.” (H.M., supra, 167 Cal.App.4th at p. 144.) “Officers in an area plagued by violent gang activity need not ignore the reality that persons who commit crimes there are likely to be armed. ‘[T]he fact that an area involves increased gang activity may be considered if it is relevant to an officer’s belief the detainee is armed and dangerous. While this factor alone may not justify a weapon search, combined with additional factors it may.’ (People v. King (1989) 216 Cal.App.3d 1237, 1241; see In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [(Frank V.)].)” (H.M., supra, 167 Cal.App.4th at p. 146.)
In Frank V., a pat search was upheld in the following circumstances. The minor was a passenger on a motorcycle outside a house known for gang activity on a street in an active gang area. He had his hands in the pockets of a bulky leather jacket when the police approached. He removed his hands at the officers’ request. As he tried to put his hands back in his pockets, the officer told him not to. The officer pat searched the minor and found a weapon. (Frank V., supra, 233 Cal.App.3d at p. 1237.) The appellate court held that, while the factor that an area is one of increased gang activity may not alone justify a weapon search, the minor’s decision to put his hands back into his pocket “provided an ‘additional factor’ ” justifying the pat search in that case. (Id. at p. 1241.)
The reputation of an area for criminal activity and increased gang activity is one articulable fact upon which a police officer may rely. (King, supra, 216 Cal.App.3d at pp. 1240-1241; Frank V., supra, 233 Cal.App.3d at p. 1241.) Officer Bailey was aware of three recent Norteño gang-related shootings in the area and around the city, and that after such shootings gang members are more likely to carry guns. The officer saw that defendant had a Norteño gang tattoo, and that he was wearing oversized clothing that could easily conceal a gun. The officer did not decide to pat search defendant until after defendant attempted to reach into a back pocket that the officer could not see because it was covered by the defendant’s oversized T-shirt. Defendant’s action of reaching toward his covered back pocket under the totality of the circumstances justified the pat search. (Frank V., supra, at p.1241.) We do not believe that an officer with knowledge of increased gang activity in the area must put his safety or the safety of others in the area at risk because the officer cannot tell whether the gang member he detained is reaching into a pocket that the officer cannot see in order to pull out a weapon or in order to pull out identification.
The Gang Conditions of Probation
Defendant challenges several gang conditions of probation as unconstitutionally vague and overbroad. Defendant challenges the general conditions of probation Nos. 18 through 26 and 28 through 30 as listed on pages 2 and 3 of the clerk’s minute order of the June 12, 2009 hearing, as well as conditions Nos. 1 through 8, 10, and 14 on the Santa Cruz probation department’s list of gang probation terms that defendant signed on June 12, 2009. As the general conditions of probation Nos. 18 though 26 and 28 through 30 as listed on page 3 of the clerk’s minute order were not orally ordered by the court, and were not otherwise incorporated by reference in the court’s oral probation order, we need not and do not address them because they were not imposed on defendant. (See, e.g., People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [the record of the oral pronouncement of the court controls over the clerk’s minute order].) We will address conditions Nos. 1 through 8, 10, and 14 on the probation department’s list of gang probation terms, as the court orally incorporated by reference those conditions in its probation order. (Ibid.) Defendant argues that some of the probation conditions lack an express knowledge requirement and that some of them do not appropriately define “gang” or “gang activity.” He contends that some of the conditions can be modified to comply with constitutional principles, but that other conditions must be stricken because they are fatally unconstitutional.
The parties refer to these latter conditions in their briefs as conditions Nos. 31.1 through 31.8, 31.10 and 31.14.
“Under Penal Code section 1203.1, a court granting probation may impose ‘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....’ (§ 1203.1, subd. (j).)” (People v. Leon (2010) 181 Cal.App.4th 943, 948 (Leon).) “In particular, the court ‘has broad discretion to impose conditions to foster rehabilitation and to protect public safety.’ [Citation.] But the court’s discretion is not without limits. ‘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.” ’ [Citations.]” [Citations.]’ [Citation.]” (Id. at p. 949.)
“ ‘[P]robation is a privilege and not a right, and... adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights.... [Citations.]’ [Citation.] But the Supreme Court has recognized that ‘[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]’ [Citation.] Also, ‘[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.]’ [Citation.]” (Leon, supra, 181 Cal.App.4th at pp. 948-949; see also People v. Jungers (2005) 127 Cal.App.4th 698, 703-704.)
As we did in Leon, “we note in the instant case defendant did not object to the probation conditions in the trial court. In fact, he acknowledged that he understood and accepted each of the terms and conditions of his probation. Defendant, however, did not forfeit his constitutional challenges to his probation conditions. [Citation.]” (Leon, supra, 181 Cal.App.4th at p. 949.) We will therefore discuss the challenged probation conditions in the order listed on the probation department’s form.
Membership in a Criminal Street Gang
Defendant contends that condition No. 1 which states, “Do not be a member of or associate with any criminal street gang, as defined in subdivision (f) of Penal Code section 186.22, ” should be modified to include a knowledge requirement by stating, “Do not knowingly be a member of or associate with any criminal street gang, as defined in subdivision (f) of Penal Code section 186.22.” The Attorney General responds that, “[i]n light of People v. Lopez [(1998)] 66 Cal.App.4th [615, ] 628-629, we have no objection to this Court ordering the condition modified to make clear that [defendant] must not ‘knowingly’ associate with any criminal street gang.”
As we did in Leon, “[w]e agree with the parties that the condition is constitutionally defective because it lacks an explicit knowledge requirement. Absent that qualification, the condition renders defendant vulnerable to criminal punishment for ‘associating with persons not known to him to be gang members.’ (People v. Lopez[, supra, ] 66 Cal.App.4th [at pp.] 628-629.) Given ‘the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, ’ the knowledge requirement in probation conditions ‘should not be left to implication.’ [Citation.]” (Leon, supra, 181 Cal.App.4th at pp. 950.) Accordingly, we will order condition No. 1 modified to read as follows: “Do not knowingly be a member of or associate with any criminal street gang, as defined in subdivision (f) of Penal Code section 186.22.”
Acts in Furtherance of a Criminal Street Gang
Defendant contends that condition No. 2 which states, “Do not do any unlawful act or acts in furtherance of, in association with, or for the benefit of any criminal street gang, ” should be modified to add both a knowledge requirement and a definition of criminal street gang by stating, “Do not knowingly do any unlawful act or acts in furtherance of, in association with, or for the benefit of any criminal street gang as defined in 186.22(f).” The Attorney General agrees that the condition is defective because it lacks an explicit knowledge requirement. However, the Attorney General contends that “[t]his Court need not insert, as [defendant] requests... a reference to the statutory definition of ‘criminal street gang’.... That definition is fairly implied in the condition.”
As we are modifying the condition to include an explicit knowledge requirement, we will also modify the condition to include the statutory definition of “criminal street gang.” By including the explicit definition of “criminal street gang” in all the probation conditions, as it is in condition No. 1, all of the probation conditions will be in harmony with each other but will also be able to stand alone. Accordingly, we will order condition No. 2 to state, “Do not knowingly do any unlawful act or acts in furtherance of, in association with, or for the benefit of any criminal street gang, as defined in subdivision (f) of Penal Code section 186.22.”
Areas of Gang-Related Activity
Condition No. 3 states, “Do not knowingly have any contact with any person known to you to be a member of a criminal street gang, except for members of your immediate family. Do not knowingly frequent areas where you know gang members congregate. If you see members of a criminal street gang in public, you are not to associate with or contact them in any way. Leave the area immediately.” Defendant contends that, because the word “frequent” is unconstitutionally vague and overbroad, the second sentence of the condition should be stricken. He also argues that the entire condition suffers from a lack of a statutory gang definition. He suggests that the condition be modified to state, “If you see, in public places, individuals you know to be members of a criminal street gang as defined in 186.22(f), you are not to knowingly associate with them or knowingly contact them in any way. You must leave the area immediately, except if the area is your place of work, school, doctor’s office, or any place you have been instructed to be present by the court, a probation officer, or other officer of the law.”
The Attorney General agrees with defendant that the word “frequent” renders the second sentence of the condition unconstitutionally vague, because it is both obscure and has multiple meanings. (In re H.C. (2009) 175 Cal.App.4th 1067, 1072; Leon, supra, 181 Cal.App.4th at p. 952.) Citing Leon, the Attorney General argues that this court may properly modify that part of the condition to read, “You are not to visit or remain in any specific location which you know to be or which the probation officer informs you is an area of criminal-street-gang-related activity.” (Ibid.) The Attorney General has no objection to defendant’s proposed amendment of the third sentence of the condition, but insists that it does not need a reference to the statutory definition of a gang.
We agree with defendant that the condition is unconstitutionally vague and overbroad. (See Leon, supra, 181 Cal.App.4th at p. 952.) Accordingly, we will order condition No. 3 modified to read, “Do not knowingly have any contact with any person known to you to be a member of a criminal street gang, as defined in subdivision (f) of Penal Code section 186.22, except for members of your immediate family. You are not to visit or remain in any specific location which you know to be or which the probation officer informs you is an area of criminal-street-gang-related activity. If you see, in public places, individuals you know to be members of a criminal street gang, you are not to associate with them or contact them in any way. You must leave the area immediately.”
Gang Communications
Condition No. 4 states, “Do not knowingly send or forward any messages of any kind to or from any member or associate of a criminal street gang. This includes, but is not limited to emails, letters, arranging three-way phone calls, notes or ‘kites.’ ” Defendant contends that the condition must be modified to include a knowledge requirement and the statutory gang definition by stating, “Do not knowingly send or forward any messages of any kind to or from anyone you know to be a member or associate of a criminal street gang as defined in 186.22(f). This includes, but is not limited to: emails, letters, arranging three-way phone calls, notes, or ‘kites.’ ” In addition, defendant argues that a definition of “kites” should be included “because it is not clear to an average person what is meant by ‘kites.’ ”
The Attorney General agrees with defendant that the condition lacks a requirement that he knows the “associate” is a member of a criminal street gang. The Attorney General argues that this court may properly modify the first sentence of the condition to read, do “not knowingly send or forward any messages of any kind to or from individuals you know to be a member or associate of a criminal street gang, or individuals identified by the probation department as associated with a criminal street gang.” However, the Attorney General disagrees with defendant that the second sentence of the condition requires a definition of the word “kites.”
A “kite” as used in the probation condition is a clandestine note written by a person in custody that is passed along to another person in custody or to somebody outside. (See e.g. People v. Bryden (1998) 63 Cal.App.4th 159, 169.) We agree that the condition should include an explicit knowledge requirement and the statutory definition of criminal street gang. Accordingly, we will order condition No. 4 modified to state, “Do not knowingly send or forward any messages of any kind to or from any individual you know to be a member or associate of a criminal street gang, as defined in subdivision (f) of Penal Code section 186.22. This includes, but is not limited to, emails, letters, notes, or arranging three-way phone calls.”
Gang Paraphernalia
Condition No. 5 states, “Do not display any hand signs with gang significance or wear any clothing which indicates gang affiliation (i.e., colors, bandanas, symbols, insignias, numbers, monikers, patterns, etc.) known by you to be gang related, or has been identified as such to you by law enforcement or probation officers.” Defendant contends that the condition should be stricken as it is “fatally unconstitutional in its prohibition of gang symbols.” Alternatively, he contends that the condition suffers from the lack of a statutory gang definition.
Condition No. 6 states, “Do not wear, display, or possess any gang clothing, indicia or paraphernalia in any form. Do not possess photographs or media depicting individuals wearing, displaying or possessing gang clothing, indicia or paraphernalia in any form. This includes, but is not limited to, photographs, graffiti, symbols, bandanas and gang related clothing.” Defendant contends that this condition should be stricken as it is “fatally unconstitutional in its prohibition of gang symbols.”
The Attorney General argues that condition No. 5 is not fatally unconstitutional, citing the gang paraphernalia probation condition this court approved in Leon, supra, 181 Cal.App.4th at pp. 951, 954. The Attorney General argues that this court may therefore modify condition No. 5 to state: “You are not to possess, wear or display any clothing or insignia, tattoo, emblem, button, badge, cap, hat, scarf, bandana, jacket or other article of clothing that you know or that the probation officer informs you is evidence of, affiliation with, or membership in a criminal street gang. You are also not to knowingly display any hand signs with gang significance.” The Attorney General contends Leon “validates the following modification to... condition [No. 6]:” “You are not to possess, wear or display any clothing or insignia, tattoo, emblem, button badge, cap, hat, scarf, bandana, jacket or other article of clothing that you know or that the probation officer informs you is evidence of, affiliation with, or membership in a criminal street gang. This includes possession of photographs or other media that you know or that the probation officer informs you show gang-related graffiti symbols or gang-related clothing.”
As we stated in Leon, “[t]he United States Constitution generally protects freedom of association, certain symbolic or expressive conduct, and the liberty to make certain intimate apparel choices. [Citations.] Nevertheless, reasonable probation conditions may limit constitutional rights provided they are closely tailored to achieve legitimate purposes. [Citations.]” (Leon, supra, 181 Cal.App.4th at p. 951-952.) As we also stated in Leon, “[w]e do not intend to hold that all gang-related conditions of probation should be worded as we order in this case.” (Id. at p. 950, fn. 1.) Accordingly, we need not modify condition No. 5 to read as it does in Leon. Rather, we will modify the condition by adding only an explicit knowledge requirement and the statutory definition of a criminal street gang: “Do not display any hand signs you know to have significance to a criminal street gang, as defined in subdivision (f) of Penal Code section 186.22, nor wear any clothing or insignia (i.e. bandanas, symbols, numbers, monikers, patterns, etc.) that is known by you to be evidence of affiliation with, or membership in, a criminal street gang, or that has been identified as such to you by law enforcement or probation officers.”
Similarly, condition No. 6 should be modified so that it does not duplicate, but rather complements, condition No. 5, and so that it includes an explicit knowledge requirement and statutory gang definition. Accordingly, we will order condition No. 6 modified to state: “Do not display or possess any clothing or insignia (i.e., bandanas, symbols, numbers, monikers, patterns, etc.) that is known by you to be evidence of affiliation with, or membership in, a criminal street gang, as defined in subdivision (f) of Penal Code section 186.22. Do not possess photographs or other media depicting individuals wearing, displaying, or possessing clothing, insignia, or other paraphernalia that is known by you to be evidence of affiliation with, or membership in, a criminal street gang. This includes, but is not limited to: photographs, graffiti, bandanas, symbols, and hand signs.”
Tattoos
Condition No. 7 states: “You must obtain written permission from your probation officer prior to receiving any new tattoos, brands, burns, piercings, or voluntary scarring. Upon the request of your probation officer you must permit photographs to be taken of all tattoos, brands, burns, piercings or voluntary scarring.” Defendant contends that this condition must be stricken as it is “fatally unconstitutional in its prohibition of gang symbols.” He does not specifically contest the second sentence of the condition requiring the photographing upon request of all of defendant’s tattoos and other skin markings. The Attorney General contends that the condition can pass constitutional muster if it simply limits defendant from receiving any gang-related tattoos, brands, burns, piercings, or voluntary scarring without prior written permission.
In In re Antonio C. (2000) 83 Cal.App.4th 1029 (Antonio C.), “the Fifth District rejected a First Amendment challenge to a condition prohibiting the minor from acquiring any new tattoos. ‘Assuming, without deciding, that tattoos and related skin markings constitute speech under the First Amendment [citation], the probation condition does not unduly burden [the minor’s] free speech rights. The United States Supreme Court has long held that while nonverbal expressive activity cannot be banned because of the ideas it expresses, it can be banned because of the action it entails.... Here, the probation condition, which is content neutral, temporarily prohibits [the minor] from self-expression through permanent skin disfigurement. Its focus is the manner in which the message is conveyed, not the message itself. As such, it constitutes a reasonable manner restriction on [the minor’s] free speech rights. [Citation.]’ [Citation.]” (In re Victor L. (2010) 182 Cal.App.4th 902, 927 (Victor L.).)
“ ‘[W]e note that inflicting brands, burns, or scars on another may constitute mayhem. [Citations.] And, branding, burning or voluntarily scarring oneself may constitute self-mutilation, which is an indication of emotional disturbance and presents a great threat to the mutilator’s health and safety. [Citations.]’ (Antonio C., supra, [83 Cal.App.4th] at pp. 1034-1035.)” (Victor L., supra, 182 Cal.App.4th at p. 927.) “The probation condition in Antonio C. also involved a prohibition on piercings, which the court held was unreasonable under the test of People v. Lent (1975) 15 Cal.3d 481, 486. It modified the condition of probation, dictating that it should read: ‘ “the minor shall not obtain any new tattoos, brands, burns, or voluntary scarrings; he shall not obtain any piercings with gang significance or not in compliance with Penal Code section 652, subdivision (a) [which allows body piercing of minors with parental consent]....” ’ (Antonio C., supra, 83 Cal.App.4th at p. 1036.)” (Victor L., supra, 182 Cal.App.4th at p. 928, fn. omitted.)
In Victor L., Division 2 of the First District Court of Appeal agreed with the constitutional analysis of Antonio C., and concluded that “the prohibition on acquiring tattoos while on juvenile probation is a proper condition for gang members or those at risk of becoming gang members, regardless of their age, so long as they remain under the juvenile court’s jurisdiction.” (Victor L., supra, 182 Cal.App.4th at p. 928.) “Just because it is lawful for an 18 year old to get a tattoo does not mean it is wise.” (Id. at p. 929.) As the language of the probation condition at issue in Victor L. “was adopted by the court below practically verbatim” from that ordered by the appellate court in Antonio C., (Victor L., supra, at p. 928), the appellate court in Victor L. stated that it was “reluctant to hold unconstitutional language which was specifically prescribed by another Court of Appeal.” (Ibid.) Although defendant is not a minor, we find that the prohibition on acquiring tattoos while on probation is a proper condition for adult gang members or those at risk of becoming gang members so long as they remain on probation under the superior court’s jurisdiction, and we are just as reluctant as the appellate court in Victor L. was to hold unconstitutional language which was specifically prescribed by another Court of Appeal. (Ibid.)
Accordingly, we will order condition No. 7 modified to delete the restriction on piercings, and thus to state: “You must obtain written permission from your probation officer prior to receiving any new tattoos, brands, burns or voluntary scarring. Upon request of your probation officer you must permit photographs to be taken of all tattoos, brands, burns or voluntary scarring.”
Search/Seizure
Condition No. 8 states, “You must submit your person, residence, vehicle, personal effects and areas under dominion and control to search and seizure at any time of the day or night by any law enforcement or probation officer without reasonable suspicion or probable cause, with or without a warrant, for gang clothing, gang paraphernalia, gang indicia, stolen property, and/or weapons. This specifically includes any gang indicia or contacts stored in any electronic media, such as computers, PDAs, cell phones, compact disks, memory sticks, flash cards, and digital cameras.” Defendant contends that this condition should be stricken as it “is fatally unconstitutional in its prohibition of gang symbols, ” “[t]he remainder of the condition is duplicative” of other ordered terms and conditions, and it “suffers from a lack of statutory gang definitions.” The Attorney General contends that “there is no problem with this standard search-and-seizure probation condition.”
“In California, probationers may validly consent in advance to warrantless searches in exchange for the opportunity to avoid service of a state prison term.” (People v. Woods (1999) 21 Cal.4th 668, 674 (Woods).) “[A] search condition of probation that permits a search of a probationer’s home without a warrant also permits a search of the home without reasonable cause.” (Id. at p. 675.) “[T]he dual purpose of a search condition [is] to deter further offenses by the probationer and to ascertain compliance with the terms of probation: ‘ “ ‘With knowledge he may be subject to a search by law enforcement officers at any time, [the probationer] will be less inclined to have [contraband] in his possession.’ ” ’ [Citation.]” (Ibid.)
The search condition in the case before us is a standard search condition of probation, in that it simply permits warrantless searches without reasonable cause. (Woods, supra, 21 Cal.4th at pp. 674-675.) That it also explicitly states what gang-related items a law enforcement or probation officer could be searching for does not render the condition unconstitutional, as other probation conditions specifically prohibit defendant from possessing gang clothing, gang paraphernalia, and gang indicia, and explain what such items are. We agree with the Attorney General that there is no need to modify condition No. 8.
Weapons
Defendant contends that condition No. 10 which reads, “Do not knowingly remain in any building, vehicle or in the presence of any person where any dangerous or deadly weapons, firearms, ammunition, or explosives are known by you to exist, with the sole exception of weapons and firearms lawfully owned and possessed by any person, ” should be modified to state: “Do not knowingly remain in any building or vehicle, or in the presence of any person, where any dangerous or deadly weapons, firearms, ammunition, or explosives (collectively “weapons”) are known by you to exist. However, this condition does not apply to weapons lawfully owned and possessed by any person, and it does not apply when you are at your place of work, school, doctor’s office, or any place you have been instructed to be present by the court, a probation officer, or other officer of the law.” Defendant contends that without the modification the condition is unconstitutionally vague and overbroad. The Attorney General objects to defendant’s proposed modification, arguing that “allow[ing] him to remain at school or work or the doctor’s office even when he knows another is in unlawful possession of dangerous or deadly weapons and the like... if not a violation of the probation condition to obey all laws, would not further [defendant’s] rehabilitation.”
We find that the condition is not unconstitutionally vague or overbroad, and we agree with the Attorney General that there is no need to modify condition No. 10.
No-Contact Order
Condition No. 14 states, “Do not knowingly contact or approach the co-defendants, witnesses, or victims in this case within 100 yards. If you see them in a public place, you are to maintain 100 yards separation or, if that is not possible, leave the area as soon as possible.” Defendant contends that “[t]o correct the problems of inapplicability and potential confusion with respect to ‘co-defendants, ’ the following language is suggested: “Do not knowingly contact or approach the witnesses or victims in this case within 100 yards. If you see them in a public place, you are to maintain 100 yards separation or, if that is not possible, leave the area as soon as possible.” The Attorney General has no objection to defendant’s request, “although arguably his contention is tied to the fact of this particular case and his failure to object to the condition below forfeits his appellate challenge to it.”
To correct any problems of inapplicability and potential confusion regarding this probation condition, as claimed by defendant, we find that a more appropriate modification of the condition would be for it to state: “Do not knowingly contact or approach within 100 yards any co-defendants, witnesses, or victims in this case. If you see them in a public place, you are to maintain 100 yards separation or, if that is not possible, you are to leave the area as soon as possible.” We will so order.
Custody Credits
Defendant first contends that under section 2900.5 and former section 4019 (as it read at the time of the probation order), he is entitled to 38 additional days of custody credits. He argues that the 78 days the trial court awarded only covered his actual time spent in custody, and that the court should have also awarded him 38 days of conduct credits. The Attorney General contends that defendant has forfeited the claim by failing to object to his award of credits below and by failing to seek relief in the trial court.
“By its terms, section 1237.1 bars a defendant... from taking an appeal as to any [issue of miscalculation of presentence custody credits] unless he has first presented it to the superior court, as [defendant] did not. By implication, and a fortiori, it allows, if not requires, the Court of Appeal to decline to address a question of this sort unless he has complied.... People v. Acosta [(1996)] 48 Cal.App.4th 411... is not to the contrary. It holds no more than that the Court of Appeal may address a question of this sort if it is properly presented with others as well. It does not even suggest that the Court of Appeal must do so, especially when, as here, it finds that that condition is not satisfied.” (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101.) Defendant concedes that, under Mendez, this court has discretion to not reach this issue because it was not first raised in the trial court. He argues that “the interests of judicial economy favor the court reaching the credits claim” “where both credits and non-credits issues are raised on appeal.”
In this case, we decline to address defendant’s claim for two reasons. First, a fair reading of the record is that the award of 78 days custody credits was a condition of the plea agreement. When defense counsel informed the court that the parties had agreed to a resolution of the matter, counsel stated that defendant was to serve 180 days in jail, and that defendant had 78 days credit at that time. When the court imposed the 180-day jail term as a condition of probation and granted 78 days credit, neither party claimed that defendant was entitled to receive additional presentence credits. Accordingly, the record supports a finding that the parties agreed as part of the resolution of the matter that defendant would receive only 78 days of custody credits.
Second, and more importantly, it appears that defendant has already served the 180-day jail term imposed as a condition of probation. Therefore, there is no reason for this court to grant him additional custody credits at this time. If and when the trial court imposes another jail term or a prison term in this matter because defendant has violated other terms and conditions of his probation, defendant may properly raise the issue of his entitlement to additional custody credits at that time.
In a supplemental brief, filed with leave of this court, defendant contends that he is entitled to additional presentence custody credits pursuant to section 4019 as amended effective January 25, 2010. “Former section 4019 provided for one day each of work and conduct credit for each six-day period in custody. (Former § 4019, subds. (b) & (c).) As amended, the statute now provides for one day of work time credit and one day of conduct credit for each four-day period in custody.” “Because [defendant’s] conviction was not final on January 25, 2010, the amendment applies to him. This means that the full benefit of amended section 4019 applies to him, regardless of when he was in the county jail.” The Attorney General contends that the amendment “is prospective only” and “is not applicable to [defendant].”
We need not and do not address the issue for the same reasons that we do not address defendant’s initial custody credit issue. First, it appears that the award of 78 days presentence credit was a part of defendant’s plea agreement. Second, it appears that defendant has already served his 180-day jail term, so if and when the trial court imposes a new jail or prison commitment in this case, defendant may properly raise the issue in that court in the first instance.
DISPOSITION
The trial court is ordered to modify conditions 1 through 7 and 14 of the Gang Probation Terms to read as follows:
1. Do not knowingly be a member of or associate with any criminal street gang, as defined in subdivision (f) of Penal Code section 186.22.
2. Do not knowingly do any unlawful act or acts in furtherance of, in association with, or for the benefit of any criminal street gang, as defined in subdivision (f) of Penal Code section 186.22.
3. Do not knowingly have any contact with any person known to you to be a member of a criminal street gang, as defined in subdivision (f) of Penal Code section 186.22, except for members of your immediate family. You are not to visit or remain in any specific location which you know to be or which the probation officer informs you is an area of criminal-street-gang-related activity. If you see, in public places, individuals you know to be members of a criminal street gang, you are not to associate with them or contact them in any way. You must leave the area immediately.
4. Do not knowingly send or forward any messages of any kind to or from any individual you know to be a member or associate of a criminal street gang, as defined in subdivision (f) of Penal Code section 186.22. This includes, but is not limited to, emails, letters, notes, or arranging three-way phone calls.
5. Do not display any hand signs you know to have significance to a criminal street gang, as defined in subdivision (f) of Penal Code section 186.22, nor wear any clothing or insignia (i.e. bandanas, symbols, numbers, monikers, patterns, etc.) that is known by you to be evidence of affiliation with, or membership in, a criminal street gang, or that has been identified as such to you by law enforcement or probation officers.
6. Do not display or possess any clothing or insignia (i.e. bandanas, symbols, numbers, monikers, patterns, etc.) that is known by you to be evidence of affiliation with, or membership in, a criminal street gang, as defined in subdivision (f) of Penal Code section 186.22. Do not possess photographs or other media depicting individuals wearing, displaying, or possessing clothing, insignia, or other paraphernalia that is known by you to be evidence of affiliation with, or membership in, a criminal street gang. This includes, but is not limited to: photographs, graffiti, bandanas, symbols, and hand signs.
7. You must obtain written permission from your probation officer prior to receiving any tattoos, brands, burns or voluntary scarring. Upon request of your probation officer you must permit photographs to be taken of all tattoos, brands, burns or voluntary scarring.
14. Do not knowingly contact or approach within 100 yards any co-defendants, witnesses, or victims in this case. If you see them in a public place, you are to maintain 100 yards separation or, if that is not possible, you are to leave the area as soon as possible.
As so modified, the order granting probation is affirmed.
We Concur: McAdams, J., Duffy, J.