Opinion
NOT TO BE PUBLISHED.
Monterey County Super. Ct. No. SS073177.
ELIA, J.
Mario Garcia appeals from the order granting him formal probation under specified conditions following his plea of no contest to charges of attempting to dissuade a witness/victim (Pen. Code, § 136.1, subd. (a)(2)) (count one) and infliction of corporal injury upon a co-habitant and spouse (Pen. Code, § 273.5, subd. (a)) (count 4). The probation report indicates that, after defendant arrived to pick up his children at the home of his wife from whom he was separated, defendant had an argument with his wife and he punched her in the face, choked her, struck her, and dragged her across the floor. The police responded to a call of domestic violence and interviewed the victim and witnesses. According to the report, after the police had left the residence, defendant's sister, who had been sent by defendant, went to the victim's home and screamed, "Where's the bitch that called the cops on my brother?" The sister assaulted the victim, breaking her nose.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant challenges all the gang related probation conditions as unreasonable and he also challenges three of the conditions as unconstitutionally vague and overbroad because they apply to gathering places, individuals, and items suspected of being gang related. Additionally, he specifically attacks the condition forbidding him from being "present at any court proceedings or at any courthouse unless you are scheduled for a court hearing, or have the express permission of your Probation Officer" as constitutionally overbroad.
The challenged probation conditions require defendant to "[n]ot be present in any known or suspected gang gathering area, as directed by the Probation Officer," "[n]ot associate with any individuals you know or suspect to be gang members, drug users, or on any form of probation or parole supervision," "[n]ot possess, wear, use or display any item you know or suspect to be associated with membership or affiliation in a gang...," "not obtain any new gang related tattooing upon your person while on probation supervision," and "not be present at any court proceedings or at any courthouse unless you are scheduled for a court hearing, or have the express permission of your Probation Officer."
We modify the order and affirm as modified.
1. Applicable Law
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.' (Pen. Code, § 1202.7.)" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "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." (Id. at p. 1121.) The 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.' (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.)' (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.]' (Lent, supra, 15 Cal.3d at p. 486....)" (People v. Olguin (2008) 45 Cal.4th 375, 379.) Thus, "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. (See Carbajal, supra, 10 Cal.4th at 1121....)" (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.]' (People v. Welch, supra, 5 Cal.4th at p. 233....)" (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) "We review conditions of probation for abuse of discretion. [Citations.]" (People v. 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.]" (People v. Olguin, supra, 45 Cal.4th at p. 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. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
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. (People v. Reinertson (1986) 178 Cal.App.3d at pp. 324-325....)" (In re 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.)
While 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. (In re 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.)
2. Gang Conditions in General
Defendant maintains that the gang conditions were unreasonable because his offenses were not gang related, more than 10 years had elapsed since he had been subject to gang conditions as a juvenile, and he had denied any gang allegiances. At trial, defense counsel argued that there was no nexus between gang conditions and the offenses to which he pled and asked the court not to impose them. He argued that the fact he was subjected to gang terms 10 years earlier in a juvenile case was irrelevant, people from certain neighborhoods found it necessary to claim a gang affiliation in jail in order "to keep themselves safe in jail" because otherwise they would be "questioned by either side." Defense counsel also represented that his client had indicated that "he may at one time been interested in gangs, but no longer ha[d] that allegiance."
The probation report indicates some gang involvement. The juvenile probation conditions imposed after he was declared a ward in December 1998 included "gang terms." Monterey County Jail records indicated that defendant admitted to being a Norteno gang member on November 11, 2005. At the time the probation report was written, defendant was "presently housed in a Norteno gang member pod at the Monterey County Jail." Defendant also has "various tattoos on his body, including the word 'SALAS' across his chest."
Where there is an indication of present or past gang association or affiliation, gang conditions bear a reasonable relationship to future criminality. (See People v. Lopez (1998) 66 Cal.App.4th 615, 624-626 [although first adult felony was not gang related, probation report disclosed that Lopez admitted membership in the Norteno gang]; see also In re Martinez (1978) 86 Cal.App.3d 577, 581 [past behavior may justify a condition aimed at deterring future criminality].) The imposition of gang related conditions is not beyond bounds of reason in this case.
3. Gathering Places, Individuals, and Items Suspected of Being Gang Related
Defendant argues that the probation requirements that require him to avoid gathering places, individuals, and items suspected of being gang related are both vague and overbroad and "have a chilling effect on [his] right to associate, among others." He asserts that "it is only a matter of time before every young man between the ages of 12 and 40 who is of Hispanic descent in the City of Salinas, will have 'gang conditions' placed on them...."
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., Amends. 1, 14; Roberts v. U.S. Jaycees (1984) 468 U.S. 609, 617-618 [104 S.Ct. 3244] [freedom of association receives protection as a fundamental element of personal liberty and as an aspect of the First Amendment]; Kelley v. Johnson (1976) 425 U.S. 238, 244 [96 S.Ct. 1440, 1444] [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]; 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 infringe upon constitutional rights provided they are closely tailored to achieve legitimate purposes. (See People v. Olguin, supra, 45 Cal.4th at p. 384; In re Sheena K., supra, 40 Cal.4th at p. 890; see U.S. v. Knights (2001) 534 U.S. 112, 119 [122 S.Ct. 587] ["Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." '..."].)
"[U.S. Supreme Court] decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties." (Roberts v. U.S. Jaycees, supra, 468 U.S. at pp. 617-618.)
The California Supreme Court has observed that "restrictive probation conditions" analogous to a condition of probation barring a defendant from associating with criminals and drug users "have been upheld even though they clearly affect a probationer's associational rights. (See, e.g., People v. Lopez (1998) 66 Cal.App.4th 615, 628-629... [condition prohibiting association with known gang members]; People v. Peck (1996) 52 Cal.App.4th 351, 363... [condition prohibiting association with known possessors, users, or traffickers of controlled substances who were unrelated to probationer]; People v. Garcia (1993) 19 Cal.App.4th 97, 101-03... [condition prohibiting association with known users or sellers of narcotics, felons, or ex-felons]; People v. Wardlow (1991) 227 Cal.App.3d 360, 366-367... [condition prohibiting association with child molesters].)" (People v. Olguin, supra, 45 Cal.4th at p. 385, fn. 4.) However, probation conditions restricting constitutional rights are scrutinized for overbreadth.
In People v. Garcia (1993) 19 Cal.App.4th 97, 102, an appellate court determined that "[a] condition of probation that prohibit[ed] appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics" was unconstitutionally overbroad because it forbid "association with persons not known to him to be users and sellers of narcotics, felons or ex-felons." The court modified the condition to provide that he was "not to associate with persons he knows to be users or sellers of narcotics, felons or ex-felons." (Id. at p. 103, italics added.)
In People v. Lopez, supra, 66 Cal.App.4th at page 622, the defendant was subjected to the following probation condition: " 'The defendant is not to be involved in any gang activities or associate with any gang members, nor wear or possess, any item of identified gang clothing, including: any item of clothing with gang insignia, moniker, color pattern, bandanas, jewelry with any gang significance, nor shall the defendant display any gang insignia, moniker, or other markings of gang significance on his/her person or property as may be identified by Law Enforcement or the Probation Officer.' " The appellate court found that a probation condition was unconstitutionally overbroad because it prohibited him "from associating with persons not known to him to be gang members" and "from displaying indicia not known to him to be gang related." (Id. at pp. 628-629.) The court modified the condition by inserting a knowledge requirement. (Id. at p. 638.)
In People v. O'Neil (2008) 165 Cal.App.4th 1351, 1354, the terms of probation included a condition forbidding the defendant from associating "with any person, as designated by your probation officer." The appellate court determined that the condition was unconstitutionally overbroad in two respects. (Id. at p. 1357.) The first problem was that the restriction on association was not expressly limited to those persons that defendant knew had been designated by his probation officer. (Ibid.) The second defect was that the condition did not "identify the class of persons with whom defendant may not associate" or "provide any guideline as to those with whom the probation department may forbid his association." (Id. at pp. 1357-1358.)
To resolve whether the three conditions challenged for use of the word "suspect" or "suspected" are impermissibly overbroad, we begin by examining the meaning of the term. We recognize that "[a] probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' (Bravo, supra, 43 Cal.3d at p. 606....)" (People v. Olguin, supra, 45 Cal.4th at pp. 382-383.) To "suspect" is to "surmise to be true or probable; imagine." (American Heritage Dict. (3d College ed. 1997) p. 1368.) To "surmise" is to "infer (something) without sufficient evidence" and a "surmise" is "[a] guess" or "a conjecture." (Id. at p. 1366.) A "suspicion" is "[t]he act of suspecting something... on little evidence or without proof." (Id. at p. 1368.)
In comparison, a "reasonable suspicion" under Fourth Amendment jurisprudence requires "articulable facts" and " 'some minimal level of objective justification' " and is "something more than an 'inchoate and unparticularized suspicion or "hunch." ' [Citation.]" (U.S. v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581].) But even circumstances warranting a "reasonable suspicion" may be "susceptible of an innocent explanation." (Illinois v. Wardlow (2000) 528 U.S. 119, 125 [120 S.Ct. 673].)
We agree that the gang conditions requiring defendant to avoid "gathering places," individuals, and items merely suspected of being gang related are unconstitutionally overbroad given the ordinary meaning of the term "suspect" or "suspected." The prohibitions encompass places, persons, and items that have no reasonable, objective relationship to future criminality and the conditions are not narrowly tailored to the purpose of the condition, which is to prevent gang affiliation.
As to the defendant's vagueness challenge, "the underpinning of a vagueness challenge is the due process concept of 'fair warning.' (People v. Castenada (2000) 23 Cal.4th 743, 751....)" (In re Sheena K., supra, 40 Cal.4th at p. 890.) "The vagueness doctrine ' "bars enforcement of 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " [Citations.]' (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115... (Acuna).) A vague law '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 an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." [Citation.]' (Id. at p. 1116....) In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' (Id. at pp. 1116-1117... italics in original.)" (Ibid.)
In In re Sheena K., the California Supreme Court concluded that a probation condition prohibiting her from associating with "anyone disapproved of by probation" was unconstitutionally vague "in the absence of an express requirement of knowledge" since it did not notify Sheena "in advance with whom she might not associate...." (Id. at pp. 889, 891-892.) The court "agree[d] with the Court of Appeal that modification to impose an explicit knowledge requirement [was] necessary to render the condition constitutional. [Citation.]" (Id. at p. 892.)
In People v. Turner (2007) 155 Cal.App.4th 1432, 1435, a probation condition prohibited the defendant from associating with "persons under the age of 18 unless accompanied by an unrelated responsible adult." The appellate court concluded the condition was unconstitutionally vague since "[a] person may reasonably not know whether he or she is associating with someone under the age of 18." (Id. at p. 1436.) Another probation condition forbade defendant from possessing "any sexually stimulating/oriented material deemed inappropriate by the probation officer and/or patronize any places where such material or entertainment is available." (Id. at p. 1435.) The court concluded it was unconstitutional because "[t]he phrase 'sexually stimulating/oriented material deemed inappropriate by the probation officer' is an inherently imprecise and subjective standard." (Id. at p. 1436.)
The amorphous term "suspect" or "suspected" contained in the challenged gang conditions not only makes the conditions overbroad, it also fails to provide adequate notice to defendant of what is expected of him when he lacks actual knowledge that a place is a "gang gathering area," a person is a gang member, drug user, or on probation or parole, or an item is "associated with membership or affiliation in a gang." In some cases, an unconstitutionally vague or overbroad probation condition may be rendered constitutional by modification. (See In re Sheena K., supra, 40 Cal.4th at pp. 880 [probation condition that forbid defendant from associating with "anyone disapproved of by probation" modified by appellate court "to require that defendant refrain from associating with anyone whom she knew was disapproved of by her probation officer], 892 [Supreme Court approved such modification and suggested that "form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone 'known to be disapproved of' by a probation officer or other person having authority over the minor"].) In this case, the challenged gang-related conditions may be rendered constitutional by removing the term "suspect" or "suspected."
4. General Ban on Being Present at Any Court Proceeding and Courthouse
Defendant complains that the condition forbidding him from being present at any court proceeding or courthouse unless he was scheduled for a court hearing or had obtained his probation officer's express permission was unreasonable and unconstitutionally overbroad. He asserts that the condition must be limited to criminal proceedings and criminal courtrooms to be constitutional.
Although defendant challenged only conditions 20 through 23 recommended by the probation officer and not this probation condition and, thereby, forfeited his claim that this probation condition is unreasonable (People v. Welch, supra, 5 Cal.4th at pp. 234-237), our analysis of the reasonableness of imposing gang conditions in general applies equally to this condition. We focus on defendant's facial constitutional challenge on overbreadth grounds.
The People insist that the condition is not overbroad because it "aims to prevent [defendant] from showing support for fellow gang members and attempting to intimidate witnesses in all court proceedings and not just in criminal cases," citing In re Laylah K. (1991) 229 Cal.App.3d 1496, disapproved on another ground in In re Sade C. (1996) 13 Cal.4th 952, 962, footnote 2, 983, footnote 13. The People also report that the civil gang injunctions have been effective in combating gang activity.
First, civil injunctions issued under public nuisance law involve a completely different legal analysis that is not applicable here. Second, we find Laylah K. unpersuasive in the adult context. In Laylah K., which has been frequently cited by courts, the Fourth District Court of Appeal approved a probation condition prohibiting "presence at a court proceeding unless minor is a party, defendant, or witness." (Id. at pp. 1499, 1502.) The court stated that the condition was "aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings" and was "reasonably designed to address the problem of gang affiliation." (Id. at p. 1502.) Although gang conditions, including the court condition, were challenged on the grounds that the "conditions were not reasonably related to their crimes or to their rehabilitation" and that they impermissibly "infringe[d] on their constitutional rights of speech and association and prohibit[ed] lawful conduct" (id. at p. 1500), the court did not engage in any specific overbreadth analysis.
In In re Laylah, the probation condition prohibited "presence at a court proceeding unless minor is a party, defendant, or witness." (In re Laylah K., supra, 229 Cal.App.3d at p. 1499.)
Significantly, Laylah K. involved juvenile probation. The Supreme Court has recognized that, in light of differences in probationary sentencing in the juvenile court and adult court, " '... a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.... ' " (In re Sheena K., supra, 40 Cal.4th 875, 889-890; see In re Tyrell J. (1994) 8 Cal.4th 68, 81 ["The juvenile court's broad discretion to fashion appropriate conditions of probation is distinguishable from that exercised by an adult court when sentencing an adult offender to probation"], disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.)
A general ban on being present at any courthouse or court proceeding, except when scheduled for a hearing, may impinge upon a host of constitutional rights. "[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances." (Bill Johnson's Restaurants, Inc. v. NLRB (1983) 461 U.S. 731, 741 [103 S.Ct. 2161].) "[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, fn. omitted [100 S.Ct. 2814] (plurality opn.); see Globe Newspaper Co. v. Superior Court for Norfolk County (1982) 457 U.S. 596, 603-605 [102 S.Ct. 2613].) "[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; see Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at p. 580, fn. 17 [noting that "historically both civil and criminal trials have been presumptively open"].)
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.] 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].)
Defendant also asserts that the probation condition violates his constitutional right to travel. A component of the federal constitutional right to travel is the "the right to go from one place to another, including the right to cross state borders while en route...." (Saenz v. Roe (1999) 526 U.S. 489, 500 [119 S.Ct. 1518].) "The right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution. (In re White (1979) 97 Cal.App.3d 141....)" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100.)
"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.' (NAACP v. Alabama (1964) 377 U.S. 288, 307 [12 L.Ed.2d 325, 338, 84 S.Ct. 1302, 1314].)" (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.) As previously stated, " '[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.]" (People v. Olguin, supra, 45 Cal.4th at p. 384.)
Although there is an exception for scheduled court appearances in the probation condition at issue here, it still has broad sweep. There can be a variety of legitimate reasons for being at a courthouse or court proceeding, other than to intimidate or threaten a witness or give support or encouragement to another gang member. For example, defendant 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 defendant suggests, he might be responding to a jury summons or a witness subpoena or wish to support a family member 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 (2000) 23 Cal.4th 1121, 1149 [trial court's ruling that the witnesses may testify anonymously at trial was error nevertheless]), the current probation conditions already require defendant to obey all laws (see e.g. §§ 136.1 [unlawful to intimidate witnesses or victims]; 422 [unlawful to make criminal threats]), require him not to associate with known gang members, drug users, probationers or parolees, and protect the victim of the present crimes by mandating that defendant have no contact with the victim, stay at least 100 yards away from the victim, and not "annoy, molest, attack, strike, threaten, harass, stalk, sexually assault, batter, or disturb the peace of the victim."
In our view, the critical question is whether the possibility of obtaining the probation officer's permission saves the broad ban 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.' (See, e.g., People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240... (Kwizera) [affirming probation condition requiring the defendant to ' "[f]ollow such course of conduct as the probation officer prescribes' " as reasonable and necessary to enable the probation department to supervise compliance with specific conditions of probation]; Balestra, supra, 76 Cal.App.4th at pp. 65-67... [upholding warrantless search condition that served valid rehabilitative purpose of helping probation officer ensure that probationer obeys all laws].)" (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 (2000) 78 Cal.App.4th 1238, 1240.) Thus, a probation officer has the discretion to determine the logistics of implementing existing probation conditions.
A probation condition that in effect delegates unfettered discretion to a probation officer to determine its scope, however, 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.) 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' (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373... ), they may not create conditions not expressly authorized by the court (id. at pp. 1372-1373... ). Here, although the 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. While the court may well have anticipated that the probation officer would specify individuals known to be using or dealing in illicit drugs, as in People v. Garcia, supra, 19 Cal.App.4th at page 102..., '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.)
The court condition in this case suffers from a similar defect. While the trial court might expect the probation officer to routinely grant permission to defendant to be present at a court proceeding or courthouse unless defendant 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 defendant to merely notify his probation officer of any court attendance in instances where defendant is not scheduled for a hearing, which would facilitate effective supervision. (Cf. People v. 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.
The challenged gang conditions are modified to eliminate the word "suspect" or "suspected" and the court condition is modified to provide: "You shall not be present at any court proceeding or at any courthouse where any known gang member is known to be present unless you are scheduled for a court hearing or you have the express permission of your Probation Officer." As modified, the order granting probation is affirmed.
WE CONCUR: RUSHING, P. J., BAMATTRE-MANOUKIAN, J.