Opinion
H043199
06-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ALVARO GAMBOA CARRANZA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SS151554, MS322174 & MS29966)
Defendant Alvaro Carranza appeals from a judgment entered following his guilty plea to misdemeanor infliction of corporal injury on a spouse/cohabitant (Pen. Code, § 273.5, subd. (a)), and his no contest pleas to misdemeanor violation of a protective order (Pen. Code § 166, subd. (c)(1)), and felony theft of multiple identifying information (Pen. Code § 530.5, subd. (c)(3). Further statutory references are to this code.)
On appeal, defendant asserts that the trial court erred in imposing four gang-related conditions of probation, because his crimes were not related to gang affiliation. Defendant also argues that one of the probation conditions is unconstitutionally overbroad, because it impacts his First Amendment right to attend court proceedings. Finding no error, we will affirm the judgment for the reasons stated here.
I. TRIAL COURT PROCEEDINGS
The current appeal involves three separate criminal cases in Monterey County Superior Court. Of the three cases, only the felony case (No. SS151554A) contains a factual record (in the form of a preliminary hearing transcript), which we summarize here.
In June 2015, defendant was sitting in the driver's seat of a car parked at Laguna Grande Park at 11:00 at night. A Monterey Police Officer contacted defendant, who was on probation with search terms. The officer searched the car, and inside found a baseball bat, a glass methamphetamine pipe, and a small baggie of a white powdery substance. The officer also found a shaved key to an older GM model vehicle, which he testified is a common car burglary tool. The search also yielded a car stereo, laptop, and cell phone.
In addition to the weapon, drug items and burglary tool found in the car, the officer seized a plastic bag with a large amount of mail containing names not matching defendant's, including a temporary paper driver's license, vehicle registrations, and an insurance card belonging to one individual. The bag also contained a check from the account of a second individual, as well as an insurance card and Hallmark card envelope in that person's name. Defendant's name had been written in the payee section of the check, in the amount of $5,500. The officer called the account holder, who said he had not given defendant a check nor permission to have any items belonging to him. The bag also contained items with names other than defendant's including a water bill, an ATM card, WIC coupons, a Wal-Mart Master Card, insurance documents, a medical group letter, a Citibank mailer, and a pay stub.
Defendant was charged with felony possession of a leaded cane, billy or blackjack (§ 22210; count one), felony forgery (§ 475, subd. (b); count two), felony theft of multiple identifying information (§ 530.5, subd. (c)(3); count three), misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count four), and possession of burglary tools (§ 466; count five).
In December 2015, defendant agreed to plead no contest to count three, multiple identifying information theft (§ 530.5, subd. (c)(3)), and admit to probation violation allegations in case No. MS329966A, in which defendant had previously pleaded no contest to misdemeanor violation of a criminal protective order (§ 166, subd. (c)(1)), and case No. MS3222174A, in which defendant had previously pleaded guilty to misdemeanor infliction of corporal injury on a spouse, cohabitant, or his child's parent (§ 273.5, subd. (a))
In the felony case No. SS151554A, the court suspended imposition of sentence and placed defendant on formal probation for three years. The court reinstated probation in case Nos. MS329966A and MS322174A. Reinstatement of probation was conditioned on serving additional jail time in the misdemeanor cases.
In January 2016, defendant filed a timely notice of appeal in case No. SS151554A. In April 2016, this Court granted defendant's application for relief from default for failing to file a proper notice of appeal, and in May 2016, defendant filed a timely amended notice specifying that he was appealing all three cases, Nos. SS151554A, MS322174A, and MS329966A.
II. DISCUSSION
Defendant asserts on appeal that the trial court erred in imposing the gang-related probation conditions, because they are not related to the crimes of which he was convicted or to future criminality. Alternatively, he challenges one condition as unconstitutionally overbroad arguing it restricts his First Amendment right to attend court proceedings.
The trial court imposed the following gang-related probation conditions: "14. Not visit or remain in any area you know, have reason to know, or are told by the Probation Officer to be a gang gathering area. (The term 'gang' in these conditions of probation refers to 'criminal street gang' as defined in PC § 186.22.) [¶] 15. Not associate with any individuals you know, have reason to know, or have been told by the probation officer are gang members, illegal drug users, or who are on any form of probation, mandatory supervision, post release community supervision, or parole supervision. [¶] 16. Not possess, wear, use or display any item you know, have reason to know, or have been told by the probation officer is associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia including the color red/blue. [¶] 17. Do not obtain any new tattooing upon your person while on probation supervision. You shall permit photographing of any tattoos on your person by law enforcement. [¶] 18. You shall not be present at any criminal court proceeding where you know, have reason to know, or the probation officer informs you that a member of a criminal street gang is present or that the proceedings [sic] concerns a member of a criminal street gang unless you are a party, you are a Defendant in a criminal action, you are subpoenaed as a witness or you have the prior permission of your probation officer; or you have other lawful business with the Court."
A. REASONABLENESS OF THE GANG-RELATED PROBATION CONDITIONS
Under section 1203.1, a trial court "may impose and require ... 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.' " (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We review the reasonableness of probation conditions for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1." (People v. Carbajal, supra, 10 Cal.4th at pp. 1120-1121.) "A condition of probation will [be upheld] unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ... .' " (People v. Lent (1975) 15 Cal.3d 481, 486.) The Lent test "is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (People v. Olguin, supra, 45 Cal.4th at p. 379.) Here, defendant's offenses were not gang-related, and the challenged gang conditions are not primarily aimed at conduct that is in itself criminal. Thus, the question is whether the gang conditions are reasonably related to future criminality. "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at pp. 379-380.)
Courts have found a reasonable relationship between gang conditions and future criminality where the record contains evidence showing the probationer is or has been affiliated with a gang. For example, in People v. Lopez (1998) 66 Cal.App.4th 615, 626, the court upheld a no gang contact probation condition where the crime to which the probationer pleaded guilty was not gang-related but the probationer was affiliated with a criminal street gang. The court reasoned that the probation condition "promoted section 1203.1's goals of rehabilitation and public safety by forbidding conduct reasonably related to future criminality." (Ibid.) Likewise, in People v. Martinez (2014) 226 Cal.App.4th 759, 764 (Martinez), the court concluded that a gang condition was reasonably related to future criminality where the probationer had been in a gang because "association with gang members is the first step to involvement in gang activity."
Here, the probation report noted that defendant had previously admitted affiliation with the South Side Locos, a subset of the Sureño criminal street gang. The report further stated that defendant "debriefed in the county jail and was classified as [a] gang 'drop out' and housed in a special needs yard." Defendant argues his past affiliation with Sureños and current status as a gang drop out do not support the gang conditions imposed for his current non-gang crimes.
Although defendant represented that he was no longer a member of the Sureño gang, this fact does not obviate the need for probation conditions restricting gang activity to deter future criminality. In deciding to impose such conditions, the court also considered the probation department's report that "[a]t the age of 24, the defendant faces significant social issues in his life including gang membership, [and] substance abuse." The report further states that based on defendant's history and current significant issues, his probation terms should include both drug and gang restrictions "in order to fully establish the boundaries he will require to be successful on probation. The defendant is in a very tenuous stage in his life and primed for change, he simply requires the proper guidance."
The imposition of gang-related conditions in this case was not an abuse of discretion. Based on defendant's recent affiliation with the Sureño gang, and ongoing challenges with addiction, the conditions are reasonably related to preventing future criminality.
B. OVERBREADTH CHALLENGE TO CONDITION NO. 18
Probation condition No. 18 states: "You shall not be present at any criminal court proceeding, where you know, have reason to know, or the probation officer informs you that a member of a criminal street gang is present or that the proceedings concerns a member of a criminal street gang unless you are a party, you are a Defendant in a criminal action, you are subpoenaed as a witness or you have the prior permission of your probation officer; or you have other lawful business with the Court."
Defendant argues the condition restricts his First Amendment right to access court proceedings and must be stricken. Respondent asserts that defendant waived his overbreadth challenge by not first raising it in the trial court. Respondent further argues that "Courts of Appeal, including this one, have repeatedly held that properly tailored probation conditions excluding a probationer from certain court proceedings are constitutional."
We note at the outset that an overbreadth argument such as defendant's may be raised for the first time on appeal when it asserts a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) The question of whether the restriction on attendance at court proceedings is unconstitutionally overbroad is a question of law and we will consider it on the merits.
"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." (In re Sheena K., supra, 40 Cal.4th at p. 890.) Here, respondent does not explain the objective of the condition, nor does respondent attempt to show that the condition is narrowly tailored to that objective.
Courts reviewing similar conditions have opined that they are "aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings." (Martinez, supra, 226 Cal.App.4th at p. 766; see In re E.O. (2010) 188 Cal.App.4th 1149, 1155 ["It may be that the principal concern behind the challenged restrictions is prevention of intimidation by gang members of witnesses to or victims of crimes with which other gang members are charged."].)
In People v. Leon (2010) 181 Cal.App.4th 943 (Leon), this court considered a probation condition restricting the defendant's attendance at court proceedings. The condition stated, "You shall not appear at any court proceeding unless you're a party, you're a defendant in a criminal action, subpoenaed as a witness, or with permission of probation." (Leon, supra, at p. 952.) The defendant argued that the condition was unconstitutionally overbroad, and "should be modified to refer to court proceedings involving gang members only." (Ibid.) This court agreed and narrowed the restriction accordingly. (Id. at p. 954.)
We reviewed another probation condition restricting access to court proceedings in In re E.O. The condition there prohibited the minor from coming " 'within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves [sic] anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.' " (In re E.O., supra, 188 Cal.App.4th at p. 1152.) We determined the condition was overbroad, noting "[t]he prohibition on being near a building in which gang-related proceedings are known to be underway would prevent appellant not only from attending a gang-related trial but also from attending other proceedings in the same, and perhaps adjacent, buildings, or indeed from entering such a building ... ." (Id. at p. 1155.) This court further noted that the condition might infringe on the minor's "specific right under the state Constitution to attend and participate in court proceedings if he or a family member is a victim of a crime ... ." (Ibid., citing Cal. Const., art. I, § 28, subd. (b)(7).) We ultimately struck the condition, and remanded the matter to the trial court to "reconsider the necessity for, and thus the purpose of, the condition." (In re E.O., supra, 188 Cal.App.4th at p. 1157.)
Here, the condition restricting defendant's attendance at court proceedings does not suffer from the same defects as those present in Leon or in In re E.O. and does not require modification. The condition is not unconstitutionally overbroad, because it limits its applicability to only those proceedings specifically involving gang members.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P.J. /s/_________
Elia, J.