Opinion
H043634
07-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JEDIDIAH OROPEZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS142322A)
STATEMENT OF THE CASE
Defendant Jedidiah Oropeza pleaded no contest to carrying a loaded firearm (Pen. Code, § 25850, subd. (a)), and he admitted that he was not the registered owner of the firearm (§ 25850, subd. (c)(6)). The trial court suspended imposition of sentence and placed defendant on probation for a period of three years.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court imposed various terms and conditions of probation, including gang conditions. As pertinent here, the trial court imposed the following probation condition: "You shall not be present at any criminal court proceeding where you know, have reason to know, or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer." The trial court also imposed the following probation condition: "Not possess, wear, use or display any item you know, have reason to know, or have been told by the probation officer is associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia including the color red/blue."
Defendant now appeals from the judgment of conviction. He contends that we must strike the probation condition regarding gang-related court proceedings because it is unreasonable and overbroad. He contends that we must strike the probation condition regarding gang paraphernalia because it is vague. He also asserts that we must correct clerical errors in the minute order for the sentencing hearing. As set forth below, we will order modification of the condition regarding gang-related court proceedings to permit defendant's attendance if he is a victim named in an accusatory pleading, we will order correction of the clerical errors in the minute order, and we will affirm the judgment in all other respects.
STATEMENT OF THE FACTS
The facts are derived from the probation report.
Officers of the Salinas Police Department were at the Goodnight Inn, a "motel frequented by Norteno gang members" and which "has a high volume of gang activity." Defendant, "a known active Norteno gang member," was sitting in a car that was parked in the motel's parking lot. Another man was in the car with defendant. That man exited the car, and the officers saw that he was "wearing clothing consistent with clothing worn by members of the Norteno street gang."
The car that defendant was sitting in was registered in defendant's name. The officers found a loaded handgun inside the car. The officers could not locate a registration match for the gun. Defendant admitted that he had purchased the gun, but he declined to identify the person from whom he purchased it. Defendant told the officers the gun was for protection from "the world."
Defendant told the officers he "was not an active Norteno gang member" and "had his gang related tattoos removed." He also told the officers that he had "not dropped out" of the gang.
DISCUSSION
I. PROBATION CONDITIONS
Defendant urges us to strike the probation condition regarding gang-related court proceedings and the probation condition regarding gang paraphernalia. He raises two challenges to the probation condition regarding gang-related court proceedings: he first asserts that it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) "because there is no evidence to suggest [he] is presently affiliated with a gang," and he next asserts that it is overbroad because it prohibits attendance at court proceedings "where he is a victim." He raises a single challenge to the probation condition regarding gang paraphernalia: he contends that the condition is "void for vagueness" because it "does not provide sufficient guidance to the probation officer."
Lent's subsidiary holding concerning the use of misdemeanors for impeachment was superseded by Proposition 8 in 1982. (See People v. Wheeler (1992) 4 Cal.4th 284, 290-291.)
A. Background
At the sentencing hearing, defense counsel objected to the imposition of gang-related probation conditions. She emphasized that defendant's "offense was not gang-related." She also advised the trial court that defendant was "going through . . . tattoo removal."
The trial court ruled that gang-related probation conditions were appropriate. The trial court explained that "there clearly are some gang connections here." The trial court noted that the offense occurred at "a motel frequented by Norteno gang members with a high volume of gang activity," and a person wearing gang-related clothing accompanied defendant at the time of the offense. The trial court acknowledged that defendant was "in the process of maybe minimizing some of his prior gang affiliations" through tattoo removal. Nonetheless, the trial court emphasized the importance of gang-related probation conditions: "What the Court wants to assure and assist in [is] his rehabilitation, and part of the rehabilitation is making sure that you don't continue to be involved in gang activities. And that is the purpose of probation, is to assist in rehabilitation. As a result . . . these terms and conditions are . . . put in place by the Court to assist not only you but probation in being able to guide you in the appropriate direction."
B. The Condition Regarding Gang-Related Court Proceedings is Reasonable
"The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Section 1203.1 authorizes a sentencing court to 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).)
"We review conditions of probation for abuse of discretion." (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) In Lent, the California Supreme Court articulated the following test to determine whether a probation condition constitutes an abuse of discretion: "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.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, supra, at p. 379.) "As such, 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." (Id. at pp. 379-380.)
"Association with gang members is the first step to involvement in gang activity." (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1501, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2.) Thus, prohibition conditions barring gang-related activities "have been found to be 'reasonably designed to prevent future criminal behavior.' " (People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).) Such conditions are improper, however, where "the record divulges . . . no ties between defendant and any criminal street gang." (People v. Brandão (2012) 210 Cal.App.4th 568, 576.)
"Conditions of probation restricting a defendant from appearing in court unless he or she is a party or a witness have been upheld as valid gang conditions in prior published decisions." (People v. Martinez (2014) 226 Cal.App.4th 759, 766 (Martinez).) "[C]ourthouses are 'known gang gathering areas' and the restriction on court attendance is aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings." (Ibid.)
Contrary to defendant's assertion, the probation condition prohibiting his presence at gang-related court proceedings is reasonable under the Lent test. Defendant's argument is premised on the notion that he lacks "a current affiliation with a gang" and has "formally disassociated himself from gang affiliation." The record belies defendant's argument. The probation report describes defendant as "a known active Norteno gang member." The probation report describes the location of the offense as a "motel frequented by Norteno gang members" with a "high volume of gang activity," and it describes defendant's companion as "wearing clothing consistent with clothing worn by members of the Norteno street gang." The foregoing circumstances demonstrate defendant's current ties to the Norteno gang. Although defendant told the arresting officers he was "not an active Norteno gang member" and was having his gang-related tattoos removed, he also told the officers that he had "not dropped out" of the gang. Given defendant's own admission that he had "not dropped out" of the Norteno gang, the probation condition prohibiting him from attending court proceedings where gang members are present is reasonably related to preventing future criminality. Indeed, defendant's "disassociation from gang-connected activities [is] an essential element of any probationary effort at rehabilitation because it would insulate him from a source of temptation to continue to pursue a criminal lifestyle." (Lopez, supra, 66 Cal.App.4th at p. 626.)
In sum, because the record shows defendant's current ties to the Norteno gang, the probation condition prohibiting his attendance at court proceedings where gang members are present is reasonably related to preventing future criminality. As the trial court noted, the condition will "assist in rehabilitation" by ensuring that defendant does not "continue to be involved in gang activities." The condition is reasonable under the Lent test, and the trial court did not abuse its discretion in imposing the condition.
C. To Avoid Overbreadth, We Order Modification of the Condition Regarding Gang-Related Court Proceedings
A probation condition may be challenged as unconstitutionally overbroad. (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).) We review such constitutional challenges de novo. (In re J.E. (2016) 1 Cal.App.5th 795, 803.)
"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." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K).) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights . . . ." (E.O., supra, 188 Cal.App.4th at p. 1153.)
"[T]here exists a First Amendment right, of largely undefined scope, to attend court proceedings." (E.O., supra, 188 Cal.App.4th at pp. 1153-1154.) The state Constitution grants crime victims the right to attend public court proceedings. (Cal. Const., art. I, § 28, subd. (b)(7).)
Here, the probation condition regarding court proceedings decrees that defendant "shall not be present at any criminal court proceeding" involving gang members. The condition does not include an exception permitting defendant's attendance if he is a crime victim. Prohibiting defendant from attending court proceedings when he is a victim of the crime that is the subject of those proceedings does not advance the goal of the condition. The purpose of the condition is "preventing the gathering of gang members to intimidate witnesses at court proceedings." (Martinez, supra, 226 Cal.App.4th at p. 766.) If defendant is a crime victim, he has legitimate reasons for attending court proceedings that are totally unrelated to witness intimidation. Indeed, this court has suggested that a probation condition such as the one here should include an exception permitting a defendant's attendance at court proceedings if he "is a victim of the activity charged in the case." (E.O., supra, 188 Cal.App.4th at p. 1157, fn. 5.)
In order to prevent overbreadth, we will order modification of the condition. Defendant asks this court to modify the condition to permit his attendance at court proceedings "in which he is a party, witness or victim." Pursuant to defendant's request, we will order the addition of language permitting his attendance at court proceedings if he is a victim named in the accusatory pleading. We will order the condition modified to read as follows: "You shall not be present at any criminal court proceeding where you know, have reason to know, or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, you are a victim named in the accusatory pleading, or you have the prior permission of your probation officer."
D. The Probation Condition Regarding Gang Paraphernalia is Not Vague
A probation condition may be challenged as unconstitutionally vague. (E.O., supra, 188 Cal.App.4th at p. 1153.) We apply the de novo standard of review when evaluating a vagueness challenge to a probation condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
"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." (Sheena K., supra, 40 Cal.4th at p. 890.) "A restriction failing this test does not give adequate notice—'fair warning'—of the conduct proscribed." (E.O., supra, 188 Cal.App.4th at p. 1153.)
Defendant contends that the condition regarding gang paraphernalia is "void for vagueness" because it "does not provide sufficient guidance to the probation officer as to the parameters of the prohibition" Defendant emphasizes that the condition fails to provide the probation officer an "adequate definition" of what is prohibited and therefore "impermissibly delegates policy matters to probation." This argument is meritless.
The condition regarding gang paraphernalia provides extensive guidance to defendant and his probation officer. The condition states: "Not possess, wear, use or display any item you know, have reason to know, or have been told by the probation officer is associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia including the color red/blue."
When evaluating a vagueness challenge to a probation condition, we interpret the condition using "common sense." (In re Ramon M. (2009) 178 Cal.App.4th 665, 677-678.) The condition here provides numerous examples of prohibited items. Thus, contrary to defendant's assertion, the condition provides a robust definition of the prohibited items and does not delegate policy choices to the probation officer. Given the high degree of specificity in the condition, it provides constitutionally sufficient guidance as to what is prohibited. We cannot conclude that the condition is unconstitutionally vague.
II. CLERICAL ERRORS IN THE MINUTE ORDER
The probation report recommended many conditions of probation. At the sentencing hearing on May 17, 2016, the trial court orally pronounced the deletion of condition No. 7 and the modification of conditions Nos. 8 and 13. These changes are reflected by hand-written notes on the probation report. The changes are not reflected in the minute order for the sentencing hearing.
Defendant requests that we order correction of the minute order to reflect the changes orally pronounced by the trial court. The Attorney General concedes that correction of the minute order is appropriate.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) An appellate court may order correction of clerical errors in a minute order or abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We accordingly will order correction of the clerical errors in the minute order for the May 17, 2016 sentencing hearing.
DISPOSITION
The trial court is ordered to modify the probation condition regarding gang-related court proceedings to read as follows: "You shall not be present at any criminal court proceeding where you know, have reason to know, or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, you are a victim named in the accusatory pleading, or you have the prior permission of your probation officer."
The trial court is directed to prepare amended minutes for the May 17, 2016 sentencing hearing that reflect the deletion of probation condition No. 7 and the modification of probation conditions Nos. 8 and 13 as orally pronounced at that hearing.
As modified, the judgment is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.