Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS061353, SS062410
Premo, J.
Before a magistrate concerning two felony complaints, defendant Gabriel David Garcia entered negotiated guilty pleas to possession of methamphetamine (two counts), assault with force likely to produce great bodily injury, and driving under the influence of methamphetamine. The trial court suspended imposition of sentence and placed defendant on three years probation with conditions. On appeal, defendant contends that (1) the judgment is void because the trial court had no subject matter jurisdiction for the reason that the magistrate failed to certify the case to the trial court (Pen. Code, § 859a), (2) the trial court abused its discretion by imposing certain conditions of probation that do not bear a relationship to the crimes of which he was convicted or future criminality (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent)), and (3) the trial court erred by imposing certain conditions of probation that are constitutionality overbroad and vague (People v. Lopez (1998) 66 Cal. App.4th 615, 628-630 (Lopez)). We affirm the judgment.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
After the magistrate accepted defendant’s guilty pleas, the following colloquy took place.
“THE COURT: And the Court does find there’s a factual basis for both pleas; finds the defendant understands the consequences of his plea; he freely, voluntarily and intelligently enters the plea. [¶] Matter referred to the Probation Department for preparation of presentence investigation and report. Both cases are. [¶] Your preference on a sentencing date, [defense counsel]?
“[Defense counsel]: No preference, Your Honor.
“THE COURT: How about the 28th at 8:45?
“[Defense counsel]: That’s fine.
“THE COURT: See you back here September 28 at 8:45.”
At the sentencing hearing, and after the trial court had indicated an inclination to follow recommendations in the probation report, the following colloquy took place.
“[Defense counsel]: Your Honor, the only issue I take is with the recommendation terms 21 through 24 and then 26 and 27, which are what we call gang terms. I don’t believe there’s any basis for those terms in that there is nothing in either of these cases which appears to be gang related. They are not related to the offenses. [¶] Although my client may have had some issues with that when he was a juvenile, there doesn’t appear to be anything in his history recently that indicates that he does have those issues, and I would ask that the Court strike those conditions. [¶] Otherwise, I would submit it along with probation’s recommendation.
“THE COURT: I’m just looking at Page 10 under ‘gang involvement’ where your client is interviewed by the probation officer saying that’s the way he lives his life now not before.
The probation report states: “Jail records indicate that on May 9, 2006, the defendant admitted he was a Norteño gang member. During his probation interview, the defendant advised he has associated with Norteño gang members, ‘all my life.’ He informed he associates with various Norteño gangs, most specifically, the Salinas East Market faction. The defendant’s tattoos include an ‘E,’ on the front of his right shoulder, an, ‘S,’ on his upper left shoulder, and, ‘Salad Bowl,’ across his upper back. The defendant is presently housed in a Norteño gang pod at the jail.”
“[Defense counsel]: Just for the Court’s information, my client is telling me now that he was referring to his life as a juvenile and that that’s not currently how he lives.”
Defendant was 19 years and six months old at sentencing.
The trial court then imposed the probation conditions as follows, in relevant part.
“[Condition No. 21:] Not to be in any known gang gathering areas as directed by the probation officer.
“[Condition No. 22:] Not to associate with any individuals known to be gang members or on probation or parole.
“[Condition No. 23:] You’re not to remain in any vehicle either as passenger or driver which is known or suspected to be stolen or contain any firearms or illegal weapon.
“[Condition No. 24:] Not to use or possess, have a cellular telephone, pager, police scanner device on your vehicle, place of residence or personal effects without the express permission of the probation officer. [¶] . . . [¶]
“[Condition No. 26:] Not to possess, wear, use, or display any item prohibited by the probation officer, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in a gang. And that includes the color red.
“[Condition No. 27:] You should not be present at any court proceeding or at any courthouse unless you are scheduled for a court hearing or have the express permission of your probation officer.”
CERTIFICATION TO SUPERIOR COURT
The procedures to be followed upon a plea of guilty to a felony complaint before a magistrate are set out in section 859a. Subdivision (a) of that section provides that upon the plea, the magistrate, “shall certify the case, including a copy of all proceedings therein and any testimony that in his or her discretion he or she may require to be taken, to the court in which judgment is to be pronounced . . . and thereupon the proceedings shall be had as if the defendant had pleaded guilty in that court.” As long recognized, section 859a “authorizes this [certification] procedure in lieu of preliminary examination and holding over, followed by the filing of an information.” (People v. Nation (1952) 108 Cal.App.2d 829, 830-831.) Section 859a, subdivision (a), however, does not define what it means to “certify the case.” Nor does any other authority.
Defendant’s contention implicitly rests upon the proposition that the magistrate did not articulate or sign something to the effect of “I certify this case to superior court.” But he cites no authority for this proposition.
Given that there is no definition of “certify,” we glean that certification is simply a legal term of art used for the situation where jurisdiction of a case via its pleadings is transferred to superior court after a defendant pleads guilty or nolo contendere before a magistrate. (See § 949 [“The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a”]; People v. Smith (1986) 187 Cal. App.3d 1222, 1223-1225 [superior court does not have jurisdiction to accept guilty plea or to enter judgment without an information and parties cannot cure the irregularity by consent]; People v. Cartwright (1995) 39 Cal. App.4th 1123, 1132-1133 [judgment upheld where information not filed but magistrate used position as cross-designated judge of superior court to “deem” complaint an information and arraigned defendant on information without objection].)
Section 859a, subdivision (a), suggests that certification involves transferring a copy of the proceedings to superior court. This transfer occurred here because the record on appeal includes the two complaints and plea-waiver forms. Section 859a, subdivision (b), suggests that certification involves appointing “a time for pronouncing judgment in the superior court and refer[ring] the case to the probation officer.” As mentioned, this appointing and referring occurred here.
In People v. McGarvy (1943) 61 Cal.App.2d 557, the defendant was arraigned in “Justice’s Court” on counts of murder and manslaughter. He appeared in “Justice’s Court” the next day for a preliminary hearing and pleaded guilty to manslaughter and not guilty to murder. Ten minutes after the plea, he appeared in the superior court for sentence. The superior court sentenced him for manslaughter and dismissed the murder charge. The defendant then unsuccessfully sought to withdraw his plea and appealed from the judgment. The court reversed on the ground of a denial of counsel. It nevertheless addressed and rejected the defendant’s secondary contention as follows: “We find no merit in the second issue raised by defendant. Since the defendant pleaded guilty to the charge of manslaughter, a crime not punishable by death, and by virtue of such plea the separate count of murder was for all purposes abandoned by all of the parties, it would seem that the procedure followed was in substantial compliance with section 8, article I of the Constitution and section 859a of the Penal Code. Therefore, it became unnecessary to proceed by information in the superior court as provided in Section 682 of the Penal Code, ‘for . . . upon such plea of guilty, the magistrate shall immediately commit the defendant to the sheriff and certify the case, . . . to the Superior Court, and thereupon such proceedings shall be had as if such defendant had pleaded guilty in such court.’ ” (Id. at pp. 564-565.)
McGarvey does not make clear the defendant’s precise secondary contention. But it is clear that McGarvey upheld jurisdiction because the magistrate’s transfer to superior court substantially complied with the Constitution and section 859a.
Here, the magistrate gave a copy of the record to the superior court, set a date and time for judgment in the superior court, and referred the case to the probation officer for the superior court. Given the absence of constitutional or statutory definition, we conclude that these steps, at the very least, substantially constituted certification.
LENT
In Lent, the Supreme Court set forth the basic rules regarding probation conditions: “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. . . .’ ” (Lent, supra, 15 Cal.3d at p. 486, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) The touchstone is whether the condition is reasonable under all of the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 234.) A court violates these standards only “when its determination is arbitrary or capricious or ‘ “exceeds the bounds of reason, all of the circumstances being considered.” ’ ” (Ibid.)
Defendant argues that there was no evidence that his offenses were gang related or that he had a present propensity to engage in gang activities. We disagree.
Defendant was an admitted Norteño gang member who had associated with Norteño gang members all his life. The trial court was not required to accept defendant’s belated correction of this admission and instead believe that defendant’s life-long gang-activity propensity suddenly evaporated 18 months previously when defendant turned 18 years old. In short, it is not beyond reason to impose the gang probation conditions upon an admitted, life-long gang member.
LOPEZ
Conditions of probation have been upheld even though they restrict a probationer’s exercise of constitutional rights so long as they are narrowly drawn to serve the important interests of public safety and rehabilitation (People v. Keller (1978) 76 Cal. App.3d 827, 839, disapproved on other grounds by People v. Welch, supra, 5 Cal.4th at p. 237) and are specifically tailored to the individual probationer. (In re Tyrell J. (1994) 8 Cal.4th 68, 81.) A probation condition suffers from constitutionally fatal overbreadth where it is not sufficiently narrowly drawn. (Lopez, supra, 66 Cal. App.4th at pp. 628-629.) An example is a condition that prohibits associating with gang members who are not known to be gang members or displaying gang indicia that are not known to be gang related. (Ibid.) The concept of unconstitutional vagueness is related to the concept of unconstitutional overbreadth and distinctly focuses on fair notice of what conduct is proscribed. (Id. at p. 630.)
Defendant asks that, if we do not strike the gang conditions under Lent, we should modify them under Lopez. According to defendant, the conditions are overbroad and vague because they “do not give [him] notice of what conduct is prohibited . . . in that knowledge by [him] is not required for any of the conditions, thus subjecting [him] to ‘guess’ what behavior would cause a violation of the terms and conditions of his probation.” We disagree.
Conditions Nos. 21 through 23 have knowledge requirements. Those conditions state the following: “known gang gathering area,” “known to be gang members,” and “known or suspected to be stolen or to contain any firearms or illegal weapon.” Condition No. 24 does not need a knowledge requirement to obviate guessing what conduct is prohibited--it prohibits possession of identifiable items. Condition No. 26 does not need a knowledge requirement to obviate guessing what conduct is prohibited--it prohibits displaying gang indicia that are specified by the probation officer. And condition No. 27 does not need a knowledge requirement to obviate guessing what conduct is prohibited--it prohibits court attendance unless defendant attends his own case or has the probation officer’s permission.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.