Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC824921
ELIA, Acting P. J.Appellant Anthony Castillo appeals from a judgment of conviction entered after he pleaded no contest to one count of owning, receiving, purchasing or possessing a firearm by a felon (Pen Code, § 12021, subd. (a)(1)), one count of altering the identification of a firearm (§ 12090), and a misdemeanor charge of altering the coloration or marking required for an imitation firearm (§ 12553).
All unspecified statutory references are to the Penal Code.
On appeal, appellant argues that some of the probation conditions that the court imposed when he was granted probation are unconstitutionally vague and overbroad. Respondent concedes that some, but not all, of the conditions need to be modified. Accordingly, we address appellant's challenge to each condition in turn.
Facts and Procedural Background
On November 13, 2008, the Santa Clara County District Attorney charged appellant by felony complaint with owning, receiving, purchasing or possessing a firearm by a felon (§ 12021, subd. (a), count one), altering the identification of a firearm (§ 12090), and a misdemeanor charge of altering the coloration or marking required for an imitation firearm. (§ 12553.)
On December 2, 2008, appellant waived his right to a preliminary hearing, signed a plea waiver form, and entered a certified plea to all three counts. Appellant entered his pleas on the understanding that he would be granted felony probation, serve a county jail term of eight months, and that the plea bargain would encompass a violation of probation in a prior case. Appellant waived referral to the probation department.
When the court sentenced appellant on January 23, 2009, defense counsel objected to certain probation conditions that the probation department had recommended. Counsel identified these conditions by number as conditions "12, 13, 14, 15, 16 and 17," which counsel averred could be found on "pages 3 and 4 of the probation report." The court suspended imposition of sentence for a period of three years, and placed appellant on felony probation with various terms and conditions, including that he serve an eight-month county jail sentence. Appellant filed a timely notice of appeal.
Defense counsel did not specify whether her objection was based on the fact that imposition of the gang-related conditions was unreasonable in appellant's case, or because the conditions are unconstitutional on their face.
It appears that certain gang-related items were found during a probation search of appellant's room. These included, "gang related photographs, letters and symbols" and "gang related music" found on appellant's cell phone.
Since appellant waived his right to a preliminary hearing and referral to the Probation Department, the record on appeal does not contain information concerning the facts of the underlying charges.
We set forth the specific probation conditions with which appellant takes issue. For ease of reference we refer to the various conditions by using the numbers reflected in the probation officer's report. However, we use the wording articulated by the court.
To the extent the wording of the probation officer's report differs from the court's oral pronouncement, the oral pronouncement governs. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186 [the trial court's oral pronouncement of judgment controls].)
"[7.] Do not possess or consume alcohol or illegal drugs or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale."
"[10.] Do not own, possess, or have within your custody or control any firearm or ammunition for the rest of your life."
"[12.] Do not associate with any individuals identified as members of a criminal street gang, as identified by the probation department.
"[13.] Do not frequent any areas of gang-related activity, and don't participate in any gang activity, as directed by the probation officer.
"[14.] Do not use, display, or possess any insignia, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or any other article of clothing or any other item which is evidence of affiliation with/or membership in a criminal street gang, as directed by the probation officer.
"[15.] Do not be on or adjacent to a school campus during school hours unless enrolled or with prior administrative permission or prior permission of the probation officer.
"[16.] Do not obtain any new gang-related tattoos, as directed by the probation officer.
"[17.] [D]o not appear at any court proceeding unless a party, defendant in a criminal action, or subpoenaed as a witness, or with prior permission of the probation officer."
The form minute order of the conditions of probation contains a list of "GANG ORDERS." Included in the list is a requirement that appellant "Register as required by law due to gang association."
Discussion
Appellant argues that the above cited probation conditions are unconstitutionally vague and overbroad. Specifically, conditions 7, 10, and 12 through 14, and 15 are vague and overbroad because either they fail to provide proper notice of what is required, provide undue discretion to law enforcement, or are not narrowly tailored to avoid unnecessary infringement on his constitutional rights. Furthermore, conditions 14 and 16 infringe on his right to free speech, fail to provide adequate notice of what is prohibited and fail to meet a legitimate state interest; and condition 17, in addition to being overbroad, infringes on his right to free speech and fails to meet a legitimate state interest. Finally, as to the requirement that he register as required by law, he was not convicted of a qualifying offense and the court did not include this condition in the oral pronouncement of judgment.
We will address each condition in turn. However, initially, we set forth the law applicable to 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.' [Citation.]" (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 Penal Code section 1203.1. [Citations.]" (Id. at pp. 1120-1121.)
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute." (Carbajal, supra, 10 Cal.4th at p. 1121.) Accordingly, our Supreme Court has "interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (Ibid.)
"Generally, '[a] condition of probation will not be held invalid 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...." [Citation.]' [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Consequently, "even 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. [Citation.]" (Id. at p. 380.)
"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.]' [Citation.]" (Carbajal, supra, 10 Cal.4th at p. 1121.) "We review conditions of probation for abuse of discretion. [Citations.]" (Olguin, supra, 45 Cal.4th at p. 379.)
As to infringement of 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-as, for example, when they agree to warrantless search conditions. [Citations.]" (Olguin, supra, 45 Cal.4th at p. 384.) Nevertheless, our 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.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
In addition, "[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.]" (Sheena K., supra, 40 Cal.4th at p. 890 .) Thus, a probation condition forbidding a minor from associating with " 'anyone disapproved of by probation' " was unconstitutionally vague where the probation condition did not inform the minor "in advance with whom she might not associate" but it could be rendered constitutional by modifying the condition "to impose an explicit knowledge requirement...." (Id. at pp. 889, 891-892.)
The "underlying concern" of the void for vagueness doctrine "is the core due process requirement of adequate notice" (People v. ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 (Acuna)) or "fair warning." (Sheena K., supra, 40 Cal.4th at p. 890.)
"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. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.)
As to gang-related probation conditions, "[p]rohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders. [Citations.]" (People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).) Furthermore, "probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders.... The path from gang associations to criminal gang activity is open to adults as well as to minors." (Id. at p. 625.) Moreover, the federal courts "have found curtailments of an adult probationer's associations with specified groups to be proper where such restrictions serve a rehabilitative purpose, even where the crime in issue was not shown to have been group related. [Citations.]" (Ibid.)
Although a defendant forfeits any claim that a probation condition is unreasonable if he fails to timely raise an objection in the trial court (People v. Welch (1993) 5 Cal.4th 228, 234-237), the forfeiture rule does not apply to a facial challenge to a patently unconstitutional probation condition that may be corrected on appeal without reference to the particular sentencing record developed in the trial court and without remanding to the trial court for further findings. (Sheena K., supra, 40 Cal.4th at pp. 885-889 .) Other constitutional challenges cannot be raised on appeal in the absence of objection in the trial court. (Id.at p. 889.)
With this background in mind, we examine each probation condition.
Conditions 7 and 10
Condition 7 orders that appellant not "possess or consume alcohol or illegal drugs" and not to "knowingly be anywhere illegal drugs are used or sold or [where] alcohol is the major item of sale." Condition 10 orders that appellant not "own, possess, or have within [his] custody or control any firearm or ammunition."
Appellant argues that these condition are unconstitutionally vague and overbroad due to the lack an express knowledge requirement. As such, he contends that the condition impermissibly infringes upon his right to loiter, travel and associate.
It is important to note that appellant does not challenge the imposition of this condition, but rather the wording of the condition.
Appellant requests that condition 7 be modified to read, "Do not knowingly possess or consume alcohol or drugs you know to be illegal. Do not knowingly be anywhere drugs you know to be illegal are used or sold or where alcohol is the major item of sale." Similarly, appellant requests that condition 10 be modified to read, "Do not own or knowingly possess or have within your custody or control any firearm or ammunition for the rest of your life."
Respondent points out that the court added a knowledge requirement when the court stated "knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale." However, respondent joins appellant's request for this court to modify these conditions to add a knowledge requirement.
Probation conditions, like criminal statutes, should be sufficiently plain that the probationer knows what is expected of him or her. It should not be possible to unknowingly violate probation. (Lopez, supra, 66 Cal.App.4th at p. 630 [condition should prohibit association with any person probationer knows to be a gang member and possession or display of what probationer knows to be gang clothing and insignia]; People v. Garcia (1993) 19 Cal.App.4th 97, 102 (Garcia) [condition should prohibit association with people probationer knows to be felons and narcotics users and sellers].)
"A condition of probation that prohibits appellant from associating with persons who, unbeknownst to him [or her], have criminal records or use narcotics, is ' "overbroad [and therefore] is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights." ' [Citation.]" (Garcia, supra, 19 Cal.App.4th at p. 102.)
Accordingly, we will modify condition 7 to read as follows: Do not knowingly possess or consume alcohol or drugs that you know to be illegal. Do not knowingly be anywhere drugs that you know to be illegal are used or sold, or where alcohol is the primary item of sale.
As to condition 10, although it is hard to imagine how someone could unknowingly possess or have control of a firearm, since respondent does not object to this court modifying condition 10, we will for the sake of clarity modify it to read as follows: Do not own or knowingly possess or have control of a firearm or ammunition for the rest of your life.
Possession may be actual or constructive. (People v. King (2006) 38 Cal.4th 617, 621.) However, actual possession requires that a person knowingly exercise direct physical control over a thing and even for constructive possession the prosecution would have to prove that appellant knowingly exercised control or the right to control a firearm. (Id.at pp. 621, 625 [possession requires a culpable mental state].)
Condition 12
Condition 12 orders appellant not to "associate with any individuals identified as members of a criminal street gang as identified by the probation department." Appellant contends that this condition is vague and overbroad. As such it violates his right to loiter, travel and associate. Appellant asks us to cure these constitutional infirmities by directing him not to associate with anyone known by him to be disapproved of by the probation department, or identified by the probation officer and the condition should incorporate the definition of a criminal street gang found in section 186.22, subdivisions (e) and (f), because otherwise the definition of gang is not sufficiently defined.
Respondent has no objection to this court narrowing the reference to individuals known by appellant to be associated with a criminal street gang, or identified by the probation department to be associated with a criminal street gang.
Initially, we point out that as our Supreme Court has explained, the United States Supreme Court has made clear that there is no "generalized right of 'social association.' " (Dallas v. Stanglin (1989) 490 U.S. 19, 25 [109 S.Ct. 1591].) Two kinds of associations have been identified as entitled to First Amendment protection-"those with an 'intrinsic' or 'intimate' value, and those that are 'instrumental' to forms of religious and political expression and activity." (Acuna, supra, 14 Cal.4th at p. 1110 .) Neither type of association was found to apply in the context of a gang member's right to associate with fellow gang members.
In Acuna, supra 14 Cal.4th at page 1117, the court acknowledged that a "prohibition against associating with 'any other known [gang]... member' might apply to a circumstance in which a defendant was engaged in one of the prohibited activities with someone known to the police but not known to him to be a gang member." Thus, in such a case, "the City would have to establish a defendant's own knowledge of his associate's gang membership to meet its burden of proving conduct in violation of the injunction." (Ibid.)
Our Supreme Court in Sheena K, supra, 40 Cal.4th 875, considered a probation condition that forbad the minor from associating with "anyone disapproved of by probation." (Id. at p. 878.) The court concluded that "in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague" because "the probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892, fn. omitted.) Thus, the court agreed that "modification to impose an explicit knowledge requirement [was] necessary to render the condition constitutional." (Id. at p. 892.) The court went on to suggest that in the future, such probation conditions should "explicitly direct[] the probationer not to associate with anyone 'known to be disapproved' of by a probation officer or other person having authority over the minor." (Ibid.)
Accordingly, we will modify condition 12 to read as follows: Do not associate with any individuals you know to be members of a criminal street gang, as defined in Penal Code section 185.22 subdivisions (e) and (f), or who are identified as members of a criminal street gang by the probation department.
Since appellant has asked us to insert, as the Lopez court did, a reference to the statutory definition of "gang," and respondent does not object, we will grant appellant's request. (People v. Lopez, supra, 66 Cal.App.4th at p. 638.)
Condition 13
Condition 13 prohibits appellant from frequenting "any areas of gang-related activity," and participating "in any gang activity, as directed by the probation officer."
Appellant contends that this condition is so vague and overbroad that we must strike it. Appellant argues that the condition is vague and overbroad because it does not define with sufficient specificity gang-related activity; and does not require that appellant have knowledge of what is prohibited. Furthermore, it is overly broad because it appears to banish him from areas where he legitimately might be without any appreciable risk of increase in criminality. Moreover, it could ban him from areas where he lives, goes to school, works, where close relatives live, or where he must be in order to further his rehabilitation. In addition, the order provides no direction to the probation officer as to what constitutes gang activity or what is meant by the term area.
Respondent suggests that the clause be modified to reflect the knowledge requirement. Accordingly, respondent proposes the condition be modified to read: Do not frequent any areas that you know, or the probation department informs you are frequented by gang members.
In part, the phrase "as directed by the probation officer" helps to cure some of the constitutional defects, because appellant could be found in violation of the condition only if he had been specifically advised by his probation officer as to which locations are off limits and in which activities he may not engage.
However, as this court has explained before, " 'Frequenting' any areas of gang related activity is not so much overbroad as obscure. To 'frequent,' a verb form, no longer in common usage would be especially challenging to understand.... The Oxford English Dictionary says it means, in its verb form, 'to visit or make use of (a place) often; to resort habitually.' [Citation.] The adjectival form of 'frequent' relates to an assembly sometimes used as 'assembled in great numbers, crowded, full.' The vice in the usage of this word cuts both ways. How the District Attorney would prove that someone 'habitually' visited an area of gang activity challenges the imagination. The common case would occur with the police picking up [appellant] in such an area-how does one turn one encounter into habitual visits. On the other hand, [appellant] would not violate the condition with one or two visits, yet we glean from the record that the trial court intended [appellant] not to visit such areas at all." (In re H.C. (2009) 175 Cal.App.4th 1067, 1072.)
Although it would be "preferable to name the actual geographic area that would be prohibited to [appellant] and then to except from that certain kinds of travel, that is, to school or to work" (In re H.C., supra, 175 Cal.App.4th at p. 1072), we conclude, however, that the condition can be modified to make it " 'sufficiently precise for [appellant] to know what is required of him....' [Citations.]" (Lopez, supra, 66 Cal.App.4th at p. 630.)
As to appellant's argument that the condition provides no direction to the probation officer as to what constitutes an area of gang activity or a gang area, we make the following observation: sections 186.20 et seq. of the Penal Code will adequately guide the probation department. In context, the phrase "gang activity" is reasonably understood to encompass activity conducted for the benefit of, at the direction of, or in association with a criminal street gang. Similarly, the phrase "gang-related activity" is reasonably understood to include any activity directly related to a gang, such as gathering or socializing with gang members. (See Acuna, supra, 14 Cal.4th at pp. 1116-1117.)
We are aware that this court has suggested that "[a]n area with 'gang-related activity' might be, in some instances, an entire district or town" (In re H.C., supra, 175 Ca.App.4th at p. 1072), however, in light of the general purpose of gang conditions to prevent a probationer's interaction with criminal street gangs, the phrase must be reasonably understood in context as referring to those specific sites where gang activity commonly occurs, not generalized areas within which gang activity takes place. (Acuna, supra, 14 Cal.4th at pp. 1116-1117.)
Accordingly, we will modify condition 13 to read as follows: Do not visit the specific locations where you know gang-related activity commonly occurs, including those areas you know have been specifically identified as such locations by the probation department, and do not participate in any activity you know is criminal gang activity or the probation department informs you is criminal gang activity.
Conditions 14 and 16
Condition 14 requires appellant not to "use, display, or possess any insignia, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or any other article of clothing or any other item which is evidence of affiliation with/or membership in a criminal street gang, as directed by the probation officer." Condition 16 prohibits appellant from obtaining "any new gang-related tattoos, as directed by the probation officer."
Appellant argues the conditions are vague and overbroad because they fail to provide sufficient notice as to what qualifies as "evidence of affiliation with/or membership in a criminal street gang" and could prohibit displaying innocent messages that might be deemed by someone to be gang related. Furthermore, condition 14 could also prohibit, for no legitimate purpose, the possession or display of everyday items. Moreover, the order delegates to the probation officer unfettered discretion in determining the scope of the condition.
Respondent suggests that condition 14 can be sufficiently modified to include a requirement that applies to paraphernalia or insignias that appellant knows, or the probation officer informs him, is evidence of affiliation with/or membership in a gang. As to condition 16, respondent proposes that the condition be modified to include the requirement that appellant not obtain any tattoos that he knows are gang-related or is informed by the probation officer that they are gang-related.
In general, the United States Constitution protects freedom of speech, certain symbolic or expressive conduct and the liberty to make certain intimate personal choices. (See Kelley v. Johnson (1976) 425 U.S. 238, 244 [96 S.Ct. 1440], [assuming for purposes of deciding the case that "the citizenry at large has some sort of 'liberty' interest within the Fourteenth Amendment in matters of personal appearance"]; Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 505, 511 [89 S.Ct. 733] [wearing of an armband to express viewpoint is symbolic act generally protected by First Amendment]; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 750 [recognizing liberty interest in personal dress and appearance].)
Nevertheless, reasonable probation conditions may infringe upon constitutional rights provided they are closely tailored to achieve legitimate purposes. (See Olguin, supra, 45 Cal.4th at p. 384; Sheena K., supra, 40 Cal.4th at p. 890; U.S. v. Knights (2001) 534 U.S. 112, 119 [Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.].)
In Lopez, supra, 66 Cal.App.4th 615, the defendant's probationary term No. 15 barred him from among other things, displaying any gang markings, or wearing of gang clothing. (Id. at p. 622.) The Lopez court found the term suffered from constitutionally fatal vagueness and overbreadth, in that it failed to put defendant on proper notice of what he could wear. (Id. at pp. 628-631.) Moreover, the Lopez court found an implied requirement of knowledge on the part of defendant insufficient to overcome the constitutional infirmities: "Without at least the insertion in this aspect of the condition of a knowledge element, [the defendant] was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise [the defendant] of the 'identified' items of gang dress before he was charged with a violation." (Id. at p. 634.) Accordingly, the court modified the defendant's conditions of probation to require that defendant not wear clothing known by him to be gang attire. (Id. at p. 638.) With this minor modification, the court found the defendant's probationary terms passed constitutional muster. (Ibid.)
We agree that insertion of a knowledge requirement into conditions 14 and 16 will pass constitutional muster.
As to appellant's argument that the order delegates to the probation officer the unfettered discretion in determining the scope of the condition, we note that a court may "leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court's order cannot be entirely open-ended." (People v. O'Neil (2008)165 Cal.App.4th 1351, 1358-1359.) Here, the court's order is not open-ended, it is limited to gang clothing and paraphernalia and gang tattoos. The probation department's authority to identify clothing, paraphernalia and tattoos as gang related is restricted to what is reasonably understood to be gang related and must be objectively reasonable. (See People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [a probation officer is not authorized to make irrational demands upon a defendant].)
Consequently, we will modify condition 14 to read as follows: Do not use, display, or possess any insignia, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or any other article of clothing or any other item, which you know or are informed by the probation officer, is evidence of affiliation with/or membership in a criminal street gang.
As to condition 16 we will modify the condition to read as follows: Do not obtain any new tattoos known to you to be gang-related, or that the probation officer informs you have gang significance.
As to appellant's argument that condition 14 fails to meet a legitimate state interest because it could prohibit the possession or display of everyday items, we make the following observations. This court is acutely aware of the problems created by the proliferation of gangs in this state. "It is beyond dispute the state has a legitimate interest in suppressing criminal street gangs." (People v. Hernandez (2005) 134 Cal.App.4th 474, 481.) Restricting probationers with demonstrated gang affiliations from displaying their gang affiliations is reasonably related to preventing future criminality. What gang clothing, paraphernalia and tattoos are identified as gang related is restricted to what is reasonably understood to be gang related and must be objectively reasonable.
Condition 15
Condition 15 prohibits appellant from being "on or adjacent to a school campus during school hours unless enrolled or with prior administrative permission or prior permission of the probation officer." Appellant argues that not only is there no knowledge requirement, but also the term adjacent is unclear and not sufficiently precise to apprise him of his obligations. Appellant submits that the condition must be modified to prohibit him from knowingly being on or within a specified distance of a school unless he has the requisite permission.
Respondent disagrees that this condition suffers from vagueness. Respondent asserts that the wording is sufficiently clear and does not present an opportunity for the probation department to enforce it in an arbitrary and discriminatory manner.
We agree with appellant that the word "adjacent "does not provide the required specificity to make the condition pass constitutional muster.
As appellant points out the word "adjacent" is defined in Webster's Third New International Dictionary (1993) at p. 26, column 2, as "not distant or far off," "nearby but not touching" or "relatively near and having nothing of the same kind intervening," or "having a common border," "abutting," "touching," "living nearby or sitting or standing relatively near or close together," and "immediately preceding or following with nothing of the same kind intervening."
Given these imprecise definitions, how is appellant to define adjacent? Can he walk on the pavement outside a school campus as long as he does not touch the border of the campus? How near is too near? How far is just far enough? In view of these imprecise definitions, we will modify condition 15 to read as follows: Do not knowingly be on or within 50 feet of a school campus during school hours unless enrolled or with prior administrative permission or prior permission of the probation officer.
In this case, if for example appellant's route from work to home took him past a school campus, appellant could obtain the permission of the probation officer to walk past the school on his way to or from work.
Condition 17
Condition 17 prohibits appellant from appearing "at any court proceeding unless a party, defendant in a criminal action, or subpoenaed as a witness, or with prior permission of the probation officer." Appellant argues that this condition is overbroad and we must strike it.
Respondent counters that prohibiting individuals affiliated with gangs from attending criminal trials in which they are not directly involved promotes public safety. Citing Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1149, footnote 15, respondent points out that our Supreme Court has recognized that witness intimidation is a significant problem in the prosecution of gang-related crimes and individuals alleged to be affiliated with gangs.
In general, a ban on being present at any court proceeding unless a party may impinge upon a host of constitutional rights. "[T]he right [of the general public] to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and 'of the press could be eviscerated.' [Citation.]" (Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 580 [100 S.Ct. 2814], fn. omitted (plurality opn.).) "[I]n general, the First Amendment right of access applies to civil proceedings as well as to criminal proceedings." (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1209.)
In addition, "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. [Fn. omitted.] We have expressly identified this 'right to remove from one place to another according to inclination' as 'an attribute of personal liberty' protected by the Constitution. [Citations.] [Fn. omitted.] Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is 'a part of our heritage' [citation], or the right to move 'to whatsoever place one's own inclination may direct' identified in Blackstone's Commentaries. [Citations.]" (City of Chicago v. Morales (1999) 527 U.S. 41, 53-54 [119 S.Ct. 1849].)
"The overbreadth doctrine provides that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' [Citation.]" (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.) As noted, "[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. [Citations.]" (Sheena K., supra, 40 Cal.4th at p. 890.)
Although there is an exception for court proceedings in which appellant is a party the probation condition still has broad sweep. There can be a variety of legitimate reasons for being at a court proceeding, other than to intimidate or threaten a witness or give support or encouragement to another gang member. For example, appellant may need to file a document regarding a family law matter or he may, as a member of the public, wish to observe a newsworthy trial not involving a gang member or himself. As appellant suggests, he might be supporting a family member or close friend testifying as a witness. In addition, threats to or intimidation of a witness or victim do not necessarily occur at a courthouse or during a court proceeding. While our Supreme Court is "keenly aware of the serious nature and magnitude of the problem of witness intimidation" (Alvarado v. Superior Court, supra, 23 Cal.4th at p. 1149), the current probation conditions (as modified) already require that appellant not associate with any individuals he knows to be members of a criminal street gang.
Appellant suggests that he might be responding to a jury summons. We point out that generally felons cannot serve on juries. (See Code Civ. Proc., § 203, subd. (a)(5); Pen. Code, § 893.)
In this case, the critical question is whether the possibility of obtaining the probation officer's permission saves the broad prohibition of appearing at any court proceeding unless a party from being deemed impermissibly overbroad or not "closely tailored" to the purpose of the condition. Formal probation anticipates supervision by a probation officer. "Persons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation." (§ 1202.8, subd. (a).) "A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality.' [Citations.]" (People v. Olguin, supra, 45 Cal.4th at pp. 380-381.) For example, "[i]n order to supervise compliance with [drug testing or reporting requirements], the probation department must have authority to set the time and place for administration of the drug test or when the defendant is to report to the department." (People v. Kwizera, supra, 78 Cal.App.4th at p. 1240.) Thus, a probation officer has the discretion to determine the logistics of implementing existing probation conditions.
However, a probation condition, which in effect assigns unfettered discretion to a probation officer to determine its scope, risks being unconstitutionally overbroad. In People v. O'Neil, supra, 165 Cal.App.4th 1351, the appellate court struck down a condition that forbade the defendant from associating with all persons designated by his probation officer because the condition was "overbroad and permit[ted] an unconstitutional infringement on defendant's right of association." (Id. at pp. 1354, 1358.) As noted earlier, the court acknowledged that a trial court "may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation" but a probation condition could not be "entirely open-ended" because the trial court was responsible for determining "the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association." (Id. at pp. 1358-1359.) The appellate court reasoned: "Although probation officers may be given 'wide discretion to enforce court-ordered conditions' [citation], they may not create conditions not expressly authorized by the court [citation]." (Id. at p. 1358.) In O'Neil, the lower court authorized the probation officer to designate those with whom defendant could not associate; it did not in any way define the class of persons who could be so designated. (Id. at p. 1354.) The appellate court observed that while the lower "court may well have anticipated that the probation officer would specify individuals known to be using or dealing in illicit drugs... 'this factor should not be left to implication.' [Citations.]" (Id. at p. 1358.) The appellate court concluded that the condition was impermissibly overbroad since it "contain[ed] no such standard by which the probation department is to be guided." (Id. at p. 1359.)
Condition 17 in this case suffers from a similar defect. While the trial court might expect the probation officer to routinely grant permission to appellant to be present at a court proceeding unless appellant appeared to have an unlawful purpose, a gang-related purpose, or some other purpose related to future criminality, the probation condition does not provide this standard for granting or withholding approval. Neither does the condition require appellant to merely notify his probation officer of any court attendance in instances where appellant is not a party or scheduled for a hearing, which would facilitate effective supervision. (Cf. Olguin, supra, 45 Cal.4th at pp. 378, 383, 385 [upholding probation condition requiring the defendant to notify probation officer of any pets present at his residence and emphasizing that condition did not require defendant to obtain permission from his probation officer in order to obtain or keep any pet].) If the judicial concern is intimidation of witnesses or jurors by gangs and support of other gang members during court proceedings, the probation condition can be more narrowly written to address this specific problem, which would closely tailor the condition to its intended purpose and render it constitutional.
Thus, we will modify condition 17 to read as follows: Do not appear at any court proceeding if you know that a member of a criminal street gang is present or if the proceeding concerns a member of a criminal street gang, unless you are a party, a defendant in a criminal action, or you are subpoenaed as a witness, or you have the prior permission of the probation officer.
The Gang Registration Condition
Appellant complains that the form minute order lists a gang registration requirement that was not ordered by the court. Appellant is correct.
In the attachment page to the minute order, which contains additional probation conditions in a preprinted check-the-box format, the next to last paragraph reads as follows: " GANG ORDERS: no insignia, tattoos, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or other article of clothing which is evidence of affiliations with/or membership in a gang, no association with gang members, not frequent any areas of gang related activity. Shall not be adjacent to any school campus during school hours unless enrolled or with prior administrative permission. Shall not appear at any court proceeding unless a party, or defendant in a criminal action or subpoenaed as a witness. Register as required by law due to gang association." In appellant's case, the box is checked. We understand that this paragraph is a shorthand way of recording the gang probation conditions, but remind the lower court that some may not apply in a particular case and that gang registration can be ordered only if the defendant is convicted of a qualifying offense, or enhancement, or the court makes a finding that a defendant's crime is gang related at the time of sentencing. (§ 186.30, subd. (b)(1)(2)(3).)
Where a minute order conflicts with the reporter's transcript, "the reporter's transcript generally prevails as the official record of proceedings...." (Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 569-570.) "Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error." (People v. Mesa (1975) 14 Cal.3d 466, 471.) "[A] court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts." (In re Candelario (1970) 3 Cal.3d 702, 705.)
We deem the challenged condition to be a clerical error that we will order the lower court to strike from the minute order.
Disposition
Conditions 7, 10, 12, 13, 14, 15, 16 and 17 are modified as outlined in this opinion. We order the lower court to strike the gang registration condition from the minute order. As so modified, the order is affirmed.
WE CONCUR: MIHARA, J., McADAMS, J.