Opinion
H023212.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. TEODORO CONDES CASTILLO, Defendant and Appellant.
Defendant Teodoro Condes Castillo appeals from the judgment entered following his plea of guilty to felony vandalism and his admission to an allegation of gang association. On appeal, he claims the gang registration condition of his sentence should be stricken because the gang registration statutes are unconstitutional. We have previously disagreed with similar claims, and we do so again.
BACKGROUND
On January 30, 2001, defendant and a codefendant (Jose Hernandez Alarcon) were charged by amended complaint with two counts of felony assault with a deadly weapon and by means of a force likely to produce great bodily injury and one count of felony vandalism. (Pen. Code, §§ 245, subd. (a)(1); 594, subd. (b)(1).) It was alleged that the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Further statutory references are to the Penal Code unless otherwise specified.
On May 25, 2001, defendant pleaded guilty to count 2, felony vandalism, and admitted the gang allegations. He was sentenced to a term of eight months in county jail, three years probation and restitution. Defendant was also ordered to register as a gang member pursuant to the requirements of sections 186.30 and 186.32. His counsel objected to the imposition of the registration requirements on various constitutional and other grounds.
The charges arose from an incident in November 2000, when defendant, riding as a passenger in his codefendants vehicle, observed rival gang members walking in the vicinity. The codefendant "signed" to the eventual victim and yelled gang identification. The victim "flipped him off." Later that evening, defendant, codefendant and several others went to one victims residence where two vehicles were parked. The codefendant threw rocks at the cars and used a metal pipe to shatter car windows. The victims and others came out of the house armed with rocks, bats and jumper cables, and a physical altercation ensued. A search warrant served on codefendants residence revealed substantial gang-related paraphernalia, although he denied gang involvement.
DISCUSSION
The Statutory Scheme
Sections 186.30 through 186.33 were enacted as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. Upon a courts finding that a person was involved in a gang-related crime ( § 186.30, subd. (b)), the court is required to notify the person of his or her duty to register ( § 186.31) "with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first." ( § 186.30, subd. (a); cf. § 186.32, subd. (a)(2)(A).) Registration requirements are spelled out in section 186.32.
Approved by the voters at the March 7, 2000 Primary Election.
The registration requirements last for five years. ( § 186.32, subd. (c).) A registrant must keep law enforcement apprised of any change of address. (§ 186.32, subd. (b).) It is a misdemeanor to knowingly violate the registration requirements. ( § 186.33, subd. (a).)
Due Process Concerns
Defendant makes a multifaceted constitutional challenge to the gang registration requirement. He contends that his right to due process was violated because of the statutory registration requirement that he provide a "written statement . . ., giving any information that may be required by the law enforcement agency, . . ." ( § 186.32, subd. (a)(2)(C), italics added.) He claims the phrase "any information" is unconstitutionally vague and fails to give fair warning of what information will be required. He further claims the registration requirement is unconstitutionally overbroad and could lead to discriminatory and arbitrary enforcement. Defendant asserts additional challenges to the requirement as violating his First Amendment rights of speech and association, his Fourth, Fifth and Sixth Amendment rights and his state constitutional right of privacy.
Section 186.32 provides, in relevant part, "(a) The registration required by Section 186.30 shall consist of the following: [P] (2)(C) [a] written statement, signed by the adult, giving any information that may be required by the law enforcement agency, shall be submitted to the law enforcement agency."
Issues concerning the constitutionality of the registration requirement are currently pending before the California Supreme Court in In re Walter S. (2001) 89 Cal.App.4th 946, review granted September 19, 2001, S099120 and In re Adrian R. (2002) 103 Cal.App.4th 1046, review granted January 22, 2003, S111812.
In People v. Bailey (2002) 101 Cal.App.4th 238, we concluded that the registration requirement could be reasonably construed so as not to be unconstitutionally vague. " [A] law that is "void for vagueness" not only fails to provide adequate notice to those who must observe its strictures, but also "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on anad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116, 929 P.2d 596, quoting Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109, 33 L. Ed. 2d 222, 92 S. Ct. 2294.) Yet such dangers do not invariably result when the statute is given a practical construction in light of its context. A statute will not be held void for vagueness "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources." (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1117.) As we have discussed, the underlying purpose of the registration provision is to enhance law enforcement officers ability to prevent gang-related crime by keeping informed of the location of known gang associates. Registration requirements generally are based on the assumption that persons convicted of certain offenses are more likely to repeat the crimes and that law enforcements ability to prevent certain crimes and its ability to apprehend certain types of criminals will be improved if these repeat offenders whereabouts are known. (People v. Adams (1990) 224 Cal. App. 3d 705, 710, 274 Cal. Rptr. 94.) In that light, section 186.32, subdivision (a)(2)(C), which is couched in language similar to the registration provisions for sex offenders, narcotics offenders, and arsonists, may reasonably be construed to require descriptive or identifying information that aids law enforcement in monitoring the whereabouts of gang members and thus preventing gang-related violent crimes. So viewed, section 186.32 is not unconstitutionally vague." (People v. Bailey, supra, 101 Cal.App.4th at p. 245, fn. omitted.)
When limited to this focused purpose, the phrase "giving any information that may be required by the law enforcement agency" reasonably means that the registrant must provide information necessary for the law enforcement agency to locate the offender-e.g., the persons full name, any aliases, date of birth, address, vehicle registration and license numbers, employment status. It also means descriptive or identifying information concerning the membership and whereabouts of criminal street gangs that is reasonably designed to aid agencies in preventing gang-related violence and crime. So construed, section 186.32 provides constitutionally sufficient notice to a registrant and reasonable guidance to law enforcement agencies and thus adequate protection against arbitrary and discriminatory enforcement.
First Amendment and California Right of Privacy
Given our construction of section 186.32, we further conclude that the registration requirement is not impermissibly overbroad and does not abridge the First Amendment right of association. Simply put, it does not give law enforcement agencies carte blanche authority to ask unlimited questions about anything. Rather, the statute authorizes agencies to ask, and requires the registrant to provide, only that information reasonably necessary to carry out the legitimate purposes of the Act. (See People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1112.)
For the same reason, we also reject the claim that the statute violates defendants California constitutional right of privacy. (Cal. Const., art. I, § 1; see People v. Hove (1992) 7 Cal.App.4th 1003, 1005-1007.)
Fourth, Fifth, and Sixth Amendments
Defendant cites no authority for the proposition that a registration requirement imposed after a criminal conviction or juvenile adjudication violates, or even implicates, Fourth Amendment rights. Understandably so. In People v. McVickers (1992) 4 Cal.4th 81, 840 P.2d 955, the defendant was convicted of certain sex offenses and, under section 1202.1 was required to submit to blood testing for AIDS. The court concluded that like DNA analysis of blood samples, deportation, hospitalization of the potentially insane, and registration as a sex offender, AIDS testing served a legitimate nonpunitive governmental purpose. The court further concluded that the test did not implicate the defendants Fourth Amendment rights and thereby constitute additional punishment. (People v. McVickers, supra, 4 Cal.4th at pp. 87-89.)
The gang registration requirement is a consequence of defendants conviction and release on probation and serves a legitimate, nonpunitive and compelling governmental purpose: prevention of recidivism and gang violence and crime. (See People v. Ansell (2001) 25 Cal.4th 868, 872-873.)
Inasmuch as we have determined that the permissible scope of the inquiry by authorities under the registration requirement is limited to descriptive information about the registrant and criminal street gangs, we further conclude that it does not implicate the privilege against self-incrimination and the right to counsel. (People v. Bailey, supra, 101 Cal.App.4th at p. 246) Defendant is not subject to custodial interrogation or prosecution in violation of his right to remain silent or his right to counsel, nor can the challenged procedure be regarded as comparable to proceedings where the right to counsel attaches, such as the preindictment investigation of a crime suspect or the initiation of an adversarial criminal proceeding, because fundamental rights may be affected. (See Marchetti v. United States (1968) 390 U.S. 39, 53, 19 L. Ed. 2d 889, 88 S. Ct. 697 [self-incrimination]; Mempa v. Rhay (1967) 389 U.S. 128, 134, 19 L. Ed. 2d 336, 88 S. Ct. 254 [right to counsel].)
Cruel and Unusual Punishment
As we concluded in People v. Bailey, supra, in the context of a claim of ex post facto violation, "We do not believe the gang registration requirement constitutes punishment either by legislative intent or in effect. Registration helps authorities monitor the location of those associating with gangs and thereby promotes the goal of protecting the public from gang-related violent crime. (Cf. Manduley v. Superior Court (2002) 27 Cal.4th 537, 575-576; Prop. 21, § 2, subd. (b).) Under the statute, registration entails an appearance at the police or sheriffs department, a written statement containing information required by the law enforcement agency, and submission of fingerprints and a photograph. In addition, any change in residence address must be reported within 10 days to the appropriate agency. ( § 186.32.) While the provision creates a burden for the registrant, unlike the lifetime requirement for sex offenders it is limited to five years after the last imposition of a registration requirement. ( § 186.32, subd. (c); cf.In re Luisa Z. (2000) 78 Cal.App.4th 978, 983.)
Thus, we conclude that registration is intended to serve legitimate purposes other than punishment, and that the effect of the requirement is not so punitive in fact that it must be regarded as punishment, despite the Legislatures contrary intent. (People v. Castellanos [(1999)] 21 Cal.4th [785,] 796.) Even if we agreed that this requirement imposes a substantial burden on the gang registrant, this burden is no more onerous than necessary to achieve the purpose of the statute. (Ibid.)" (People v. Bailey , supra, 101 Cal.App.4th at p. 244, fn. omitted.)
Exceeding Judicial Function
Defendant further argues that this court may not restrict the meaning of the statutory terms by construction because doing so exceeds the scope of our judicial function and violates the legislative intent of the statute. We disagree.
In Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 905 P.2d 1248, the California Supreme Court extensively reconsidered the power of courts to "reform" or rewrite statutes and initiatives. (Id. at pp. 626-663.) To summarize, the court stated that "a court may reform-i.e. , rewrite-a statute in order to preserve it against invalidation under the Constitution, when we can say with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute. By applying these factors, courts may steer clear of judicial policymaking in the guise of statutory reformation, and thereby avoid encroaching on the legislative function in violation of the separation of powers doctrine. [Citations.]" (Id. at pp. 660-661, fn. omitted.)
Registration statutes are aimed at potential recidivist offenders and serve important purposes: They facilitate police surveillance and crime detection and deter recidivism. (See People v. Castellanos, supra, 21 Cal.4th at p. 796; In re Luisa Z., supra, 78 Cal.App.4th at p. 982.) The limiting construction of "any information" enables the registration requirement to serve these purposes as well. Under the circumstance, therefore, we have no doubt that the voters, as the enacting body of Proposition 21, would prefer that courts construe these terms and preserve the registration requirement rather than invalidate it.
Single-Subject Rule
Finally, defendant contends that the Gang Violence and Juvenile Justice Initiative, from which the gang registration statutes were derived, violates Californias constitutional requirements of a single subject for initiatives. Recently, our Supreme Court rejected this contention and held that the initiative did not violate the single-subject rule. (Manduley v. Superior Court, supra, 27 Cal.4th at pp. 575-576.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Premo, Acting P.J., and Elia, J.