Opinion
F074148
08-28-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ISAAC JIMENEZ, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16903758)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Detjen, J. and Franson, J.
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After defendant David Isaac Jimenez pled no contest to unlawfully driving or taking a vehicle with a prior (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5), the trial court sentenced him to a three-year split term—two years to be served in jail and one year on mandatory supervision with various conditions. On appeal, he contends the gang probation conditions are unconstitutionally overbroad because they lack an express knowledge element. We modify the conditions and affirm the judgment as modified.
DISCUSSION
Defendant challenges the following probation conditions in condition No. 27 as overbroad: "You're ordered not to be in a gang or associate with any person who is in a gang as defined in Penal Code Section 186.22. You're not to wear or possess any gang-related paraphernalia or indicia ...."
Penal Code section 1203.1 gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety. (People v. Anderson (2010) 50 Cal.4th 19, 26.) "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." (Sheena K., supra, 40 Cal.4th at p. 890.) An overbroad condition is one that restricts a defendant's fundamental constitutional rights to a greater degree than necessary to achieve the condition's purpose. (People v. Olguin (2008) 45 Cal.4th 375, 384.) The overbreadth doctrine requires that probation conditions, which may impinge on constitutional rights, be tailored carefully and be reasonably related to the compelling state interest in reformation and rehabilitation. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) A reviewing court has the authority to modify a probation condition to render it constitutional. (Sheena K., supra, at pp. 888, 892; In re Malik J. (2015) 240 Cal.App.4th 896, 901 ["In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified."].)
Constitutional challenges to conditions on vagueness and overbreadth grounds are "conceptually quite distinct." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "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." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (Ibid.) The Supreme Court has now considered whether probation conditions barring a defendant from possessing firearms or illegal drugs are unconstitutionally vague. The court concluded they are not because they include an implicit requirement of knowing possession, and thus afford a defendant fair notice of the conduct required of him. (People v. Hall (2017) 2 Cal.5th 494, 497-498 (Hall).) In determining whether a probation condition is sufficiently definite, we are not limited to the condition's text; we must also consider other sources of applicable law, including judicial construction of similar provisions. (Id. at pp. 500-501.)
Both parties submitted supplemental letter briefing on the application of Hall to this case.
In People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez), we considered the gang probation conditions in condition No. 15: " '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.' " (Id. at p. 622.) We concluded the conditions were overbroad in the absence of a knowledge element:
"We agree that condition No. 15 suffers from constitutionally fatal overbreadth because it prohibits Lopez from associating with persons not known to him to be gang members. [Citations.] In [People v.] Garcia [(1993) 19 Cal.App.4th 97], we held that a probation condition was not 'sufficiently narrowly drawn' where the condition required the defendant to refrain from associating with persons not known to the defendant to be users and sellers of narcotics, or felons, or ex-felons. [Citation.] We modified the condition to add the element of knowledge and affirmed it as modified. [Citation.] We will so modify condition No. 15 here. [Citation.]
"We also agree with Lopez that condition No. 15 suffers from constitutionally fatal overbreadth because it prohibits Lopez from
displaying indicia not known to him to be gang related. We will in this respect modify the condition so that it will apply only to displays of symbols known by Lopez to have a gang connotation." (Lopez, supra, 66 Cal.App.4th at pp. 628-629.)
We modified condition No. 15 to read as follows:
" 'Defendant is not to be involved in or associate with any person known to defendant to be a gang member. He may not wear or possess any item of gang clothing known to be such by defendant including any gang insignia, moniker or pattern, jewelry with gang significance nor may he display any gang insignia, moniker or other markings of gang significance known to be such by defendant on his person or property as may be identified by law enforcement or the probation officer .... For purposes of this paragraph, the word 'gang' means a 'criminal street gang' as defined in Penal Code section 186.22, subdivisions (e) and (f).' " (Lopez, supra, 66 Cal.App.4th at p. 638.) (Italics added.)
Applying Lopez to the present case, we agree the conditions are overbroad because they prohibit defendant from associating with people who, unbeknownst to him, are gang members, and from wearing clothing or possessing items that, unbeknownst to him, are gang paraphernalia or indicia. Thus, we will modify the conditions so they are narrowly tailored to defendant's associating with people he knows to be gang members and possessing or wearing items he knows to be gang paraphernalia or indicia.
DISPOSITION
The probation conditions in condition No. 27 are modified to read as follows: "You're ordered not to be in a gang or associate with any person known by you to be in a gang as defined in Penal Code section 186.22. You're not to wear or possess any items known by you to be gang-related paraphernalia or indicia ...." The matter is remanded to the trial court with directions to amend the sentencing orders to reflect these modifications and to forward certified copies of those orders to the appropriate authorities. As so modified, the judgment is affirmed.