Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC939975
McAdams, J
As part of a plea agreement, defendant Esequiel Barrajas pleaded no contest to one felony count of possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He also admitted enhancement allegations that he had served one prior prison term (Pen. Code, § 667.5, subd. (b)) and had one prior conviction that qualified as a strike under the Three Strikes Law (§§ 667, subds. (b)-(i); 1170.12). Pursuant to the plea agreement, the court dismissed charges that defendant committed one count of misdemeanor vandalism (§ 594, subd. (a), (b)). The court subsequently granted defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and struck the prior strike conviction. The court suspended imposition of sentence and placed defendant on probation for three years, subject to various terms and conditions, including six months in county jail and several gang-related conditions.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant challenges two of the gang conditions of his probation, which (1) preclude him from possessing, using, or displaying gang insignia or paraphernalia and (2) direct him not to obtain any new gang tattoos. He contends that these conditions are overbroad and violate his First Amendment right of free expression. We conclude that the tattoo condition is unconstitutionally vague because it lacks a knowledge requirement. We will therefore modify the tattoo condition and affirm the judgment as modified.
Since defendant entered his plea prior to the preliminary examination, the facts are taken from the “Waived Referral” probation report and the court’s comments at the change of plea and sentencing hearings.
On April 10, 2009, the police stopped defendant for riding his bicycle on the wrong side of the street (Veh. Code, § 21650.1) and discovered that he had a bottle containing two white plastic “twists” of crystal methamphetamine in his possession. The methamphetamine weighed approximately one and one-half grams. Given the small quantity of drugs involved, the prosecution concluded that defendant possessed it for personal use and that there was insufficient evidence to charge possession for sale or transportation.
Defendant identified himself to the police as an active member of the Varrio Sureño Town (VST) criminal street gang. When asked about gang affiliation, he responded: “VST. I’m a Sureño.”
Sureño gang members identify with the number 13 and the color blue. At the time of his arrest, defendant had a blue bandana in his pocket. The arresting officer searched defendant’s cellular phone and located images of “individuals wearing blue Dickies, a blue bandana and others that read ‘408 Shark City WSSJ, ’ ‘South Side Ridaz, ’... ‘13, ’ ‘South Side 13, ’ with a blue bandana in the background. And ‘West SANJO.’ [¶] The officer... believed these were evidence of gang affiliation.”
Defendant also had tattoos of a “Mexican calendar” and an eagle on the top of his head. According to the police officer, such tattoos are common among VST members who have been in jail or prison and are becoming active in the gang again. Defendant also had “VST” tattooed behind his left ear.
The vandalism charge was based on defendant’s conduct at the police station after his arrest. The officers placed defendant in an interview cell that had a metal table in it; the top of the table was painted blue. Defendant was alone in the cell for an hour and peeled a large piece of blue paint off the table.
Defendant’s prison prior was a conviction for unlawful sexual intercourse with a minor more than three years younger than defendant (§ 261.5, subd. (c)). The female victim was defendant’s girlfriend at the time. They have a child together and share custody of the child. Defendant’s strike prior was a juvenile adjudication for assault with a deadly weapon (§ 245, subd. (a)(1)) when he was 16 years old, 11 years prior to the current offenses. Defendant has not committed any serious or violent felonies since then.
Since defendant identified himself as an active member of the VST, the probation officer recommended imposing gang conditions of probation, including that defendant not associate with gang members, not wear or display gang clothing or paraphernalia, and not obtain any new gang tattoos. At sentencing, defense counsel objected to the gang conditions on the ground that they interfered with defendant’s constitutional right of free association. He also argued that there was no reasonable relationship between defendant’s drug offense and the gang conditions.
The court imposed the gang conditions. In particular, the court ordered that defendant: (1) “not possess, use, display, any insignia, emblem, button, badge, cap, hat, scarf, bandana, jacket, or other article of clothing, or any other item which you know to be evidence of affiliation with or membership in a criminal street gang” and (2) “not obtain any new tattoos that identify you as a member of a criminal street gang.” Citing this court’s decision in In re H.C. (2009) 175 Cal.App.4th 1067, the court defined “gang member” and “criminal street gang” to mean a criminal street gang as defined in section 186.22.
Discussion
1. General Principles Governing Probation Conditions
“Under... 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).) ‘The primary goal of probation is to ensure “[t]he safety of the public... through the enforcement of court-ordered conditions of probation.” (... § 1202.7.)’ ” (People v. Leon (2010) 181 Cal.App.4th 943, 948 (Leon), citing People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “ ‘In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to... section 1203.1.’ ” (Leon, at p. 948.)
With regard to limitations on constitutional rights, “ ‘probation is a privilege and not a right, and... adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights....’ ” (Leon, supra, 181 Cal.App.4th at p. 948, citing People v. Olguin (2008) 45 Cal.4th 375, 384.) “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.’ ” (Leon, at pp. 948-949, quoting In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “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.” ’ ” (Leon, at p. 949, quoting Sheena K., at p. 890.) “ [T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ ” (Sheena K., at p. 890.)
II. Standard of Review
“In the ordinary case in which a trial court imposes a probation condition based on its determination of historical or situational facts regarding the defendant or the defendant’s offenses, a reviewing court is confined to determining whether the condition amounted to an abuse of discretion.” (Leon, supra, 181 Cal.App.4th at p. 949, citing Carbajal, supra, 10 Cal.4th at pp. 1120-1121.) The trial court “ ‘has broad discretion to impose conditions to foster rehabilitation and to protect public safety.’ ” (Leon, at p. 949, citing Carbajal, at p. 1120.) However, 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.” (Leon, at p. 949, quoting Carbajal, at p. 1121, internal quotation marks omitted.) On the other hand, we review constitutional challenges to probation conditions de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)
III. Gang Paraphernalia Condition
The court ordered defendant not to “possess, use, display, any insignia, emblem, button, badge, cap, hat, scarf, bandana, jacket, or other article of clothing, or any other item which you know to be evidence of affiliation with or membership in a criminal street gang” (hereafter paraphernalia condition). Defendant contends that this condition is overbroad and thereby violates his state and federal constitutional rights of free expression. He argues that the condition is too sweeping because it regulates conduct that is not gang-related and it is therefore not reasonably related to the purpose of deterring future criminality. He contends that the paraphernalia condition, as written, exposes him to a probation violation for possessing items or wearing colors related to any gang. He argues that since almost any color can be gang-related, the condition is overbroad and that it should be limited to colors, clothing, or symbols related to his gang, the Sureños. He does not propose any specific language or modification to the condition.
This court addressed a similar challenge in Leon, where the defendant argued that a condition limiting the possession, use, or display of gang clothing or paraphernalia was overbroad and should be limited to his gang, the Norteños. (Leon, supra, 181 Cal.App.4th at p. 951.) In Leon, we stated: “The United States Constitution generally protects freedom of association, certain symbolic or expressive conduct, and the liberty to make certain intimate personal choices. (See U.S. Const., 1st & 14th Amends.; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 750, ... [recognizing liberty interest in personal dress and appearance]; People v. Beach (1983) 147 Cal.App.3d 612, 622, ... [‘The right to acquire, own, enjoy and dispose of property is... a basic fundamental right guaranteed by the Fourteenth Amendment to the United States Constitution’].) Nevertheless, reasonable probation conditions may limit constitutional rights provided they are closely tailored to achieve legitimate purposes.” (Leon, supra, 181 Cal.App.4th at p. 951.)
In Leon, we rejected the defendant’s contention that the condition needed to be limited to his gang to save it from being overbroad. “ ‘A statute or regulation is overbroad if it “does not aim specifically at evils within the allowable area of [governmental] control, but... sweeps within its ambit other activities that in the ordinary circumstances constitute an exercise” of protected expression and conduct.’ [Citations.] However, a probation condition must be aimed at the rehabilitation of [the] defendant and it is necessary and appropriate that the term ‘gang’ be more fully defined in the condition at issue.” (Leon, supra, 181 Cal.App.4th at p. 951.) We concluded that the “[d]efendant’s need for rehabilitation [was] due to his association with a criminal street gang, and [that] the probation condition can be aimed squarely at that without inserting the” name of the gang with which the defendant was affiliated into the condition. (Ibid.)
Similarly, defendant’s rehabilitation will be enhanced if he is prohibited from wearing or possessing clothing and paraphernalia that reference any gang, not just the Sureño gang or the VST subset of that gang with which he is currently affiliated. This will help defendant avoid situations involving gang-on-gang violence or activities where more than one gang or gang subset join forces. In our view, the paraphernalia condition is closely tailored to its purpose of enhancing defendant’s rehabilitation by requiring him to avoid all gang associations. Consequently, it was not required to be limited to one gang, one gang color, or one set of insignia.
Tattoo Condition
The court ordered defendant not to “obtain any new tattoos that identify you as a member of a criminal street gang” (hereafter tattoo condition). Defendant contends that this condition is constitutionally vague and overbroad because it lacks a knowledge requirement. The Attorney General agrees that the tattoo condition should be modified to include a knowledge element. We agree and will modify the condition accordingly.
In Sheena K., the court determined that a probation condition requiring that a juvenile offender “not associate with anyone ‘disapproved of by probation’ ” was unconstitutionally vague “in the absence of an express requirement of knowledge....” (Sheena K., supra, 40 Cal.4th at pp. 890, 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.) Modification of the condition to require that the minor know who was disapproved of by her probation officer cured the defect. (Id. at p. 892.)
In Leon, we addressed challenges to probation conditions that forbade the defendant from associating with gang members, visiting areas of gang activity, and possessing or displaying gang paraphernalia on the ground that they were unconstitutionally vague. (Leon, supra, 181 Cal.App.4th at pp. 949-952.) We concluded that “absent a knowledge requirement” the conditions were unconstitutionally vague because the “defendant may be criminally punished for gang involvement he is unaware of.” (Id. at p. 952.) “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.’ ” (Id. at p. 950, quoting People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Accordingly, we ordered the conditions modified to include knowledge requirements. (Leon, at pp. 950-952.)
For these reasons, we accept the Attorney General’s concession and will order the tattoo condition modified to include a knowledge requirement.
Disposition
The trial court is ordered to modify the tattoo condition as follows: “Defendant shall not obtain any new tattoos that he knows are gang-related or that his probation officer informs him to be gang-related.” As so modified, the judgment is affirmed.
WE CONCUR: Premo, Acting P.J.Elia, J.