Opinion
H036112
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ALONSO ZAVALA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SS092560)
I. STATEMENT OF THE CASE
Defendant Alonso Zavala pleaded no contest to aggravated assault and making a criminal threat (Pen. Code, §§ 245, subd. (a)(1) & 422); and as part of the plea agreement, he was placed on probation. Among the conditions of probation, the trial court imposed a requirement that defendant "[n]ot associate with any individuals you know or reasonably should know to be gang members . . . ."
All unspecified statutory references are to the Penal Code.
On appeal, defendant claims the gang condition was unreasonable and unconstitutional.
We amend the probation order to strike that condition and affirm the order as modified.
II. BACKGROUND
Our summary of the underlying offenses is based on information in the probation report.
Defendant and Jane Doe were married for almost 14 years, had three children, and then separated. Thereafter, on October 7, 2009, defendant saw her at a laundromat. He put his arm around her throat and said he loved her, and if he could not be with her, she should not be allowed to live. He then threatened to cut off her breasts and slice her into small pieces.
On November 8, 2009, Jane Doe was walking to her apartment when defendant drove his car at her, braked, and said, "Now I got you, bitch." He told her that accidents happen and said he might have someone cut her brake lines. Doe said if he wanted to kill her, then she was right there now. Defendant responded, "Don't worry, I have a date picked and everything is planned."
Doe called the police and told them where she thought defendant was living. On November 9, defendant called her and asked if she was happy that the police were looking for him. He threatened to kill her before he left. Later that night, he called and threatened to kill her if she did not drop the charges against him.
III. THE GANG CONDITION
For purposes of discussion, we assume the court's use of the word "gang" in the condition refers to "criminal street gang" as defined in section 186.22, subdivision (f).
Defendant contends that the court abused its discretion in prohibiting from associating with people he knew or should know to be gang members. He claims that it is unreasonable and impermissibly infringes on his First Amendment right of freedom of association.
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 (Carbajal).)"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." (Carbajal, supra, 10 Cal.4th at p. 1121.) As interpreted by the Supreme Court, section 1203.1 requires "probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation]" (Ibid., quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).)Thus, "[g]enerally, '[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.]' [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting Lent, supra, 15 Cal.3d at p. 486.) ") 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. [Citation.]" (Olguin, supra, 45 Cal.4th at p. 380.)
Moreover "[p]robation conditions restricting a probationer's exercise of his constitutional rights are upheld only if narrowly drawn to serve the important interests of public safety and rehabilitation, and if they are 'specifically tailored to the individual probationer.' [Citation.]" (People v. Smith (2007) 152 Cal.App.4th 1245, 1250, quoting In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; In re Luis F. (2009) 177 Cal.App.4th 176, 189.) This additional requirement applies in this case because the condition prohibiting association with known gang members impinged on defendant's constitutional right of freedom of association. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 1; People v. Lopez (1998) 66 Cal.App.4th 615, 627-628 (Lopez); cf. People v. Garcia (1993) 19 Cal.App.4th 97, 102 [condition prohibiting association with drug users and dealers].)
"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.]' " (Carbajal, supra, 10 Cal.4th at p. 1121, quoting People v. Welch (1993) 5 Cal.4th 228, 233.) "We review conditions of probation for abuse of discretion. [Citations.]" (Olguin, supra, 45 Cal.4th at p. 379.)
In In re Laylah K. (1991) 229 Cal.App.3d 1496 (disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983, fn. 2 & 13), the court upheld a probation condition barring the minor from associating with gang members. There two minors and others assaulted a woman, during which they asked her why she was wearing red clothing. The probation report noted that the comment had gang overtones and that the minors' aunt had said they associated with gang members. One of the minors admitted that he had friends who were gang members and that a gang member was with them when they committed the assault. In imposing the condition, the trial court agreed with the probation officer's conclusion that the minors' assault was an apparent effort to defend against a challenge to the gang territory. The court was also concerned that both minors were runaways beyond parental control. (Id. at pp. 1500-1501.) In upholding the condition, the court found that the trial court reasonably could have found that the minors were in danger of succumbing to gang pressures and falling under their influence. "Association with gang members is the first step to involvement in gang activity." (Id. at p. 1501.) Accordingly, the condition was reasonably related to preventing future unlawful conduct. (Ibid.)
Probation conditions barring association with gang members are routinely upheld where there is some evidence in the record connecting the probationer with a gang, gang members, or gang activity. (E.g., In re Shaun R. (2010) 188 Cal.App.4th 1129, 1136 [minor admitted gang affiliation]; People v. Leon (2010) 181 Cal.App.4th 943, 947 [gang paraphernalia]; Lopez, supra, 66 Cal.App.4th at p. 623 [same]; In re Michael D. (1989) 214 Cal.App.3d 1610, 1616-1617 [admitted gang member]; In re Vincent G. (2008) 162 Cal.App.4th 238, 247 [minor wore gang colors and gang paraphernalia]; cf. People v. Peck (1996) 52 Cal.App.4th 351, 363 [prohibiting association with drug users]; In re Peeler (1968) 266 Cal.App.2d 483, 492-493 [same].)
Defendant's offenses involved acts against his wife apparently in anger over their estrangement and her complaint to the police about his assault. There was no evidence that defendant's actions were gang-related or had gang overtones. There was no evidence that during their commission defendant referred to gangs or gang members or mentioned or displayed gang colors, symbols, numbers, or other gang indicia. There was no evidence that defendant or Jane Doe were or had been members of a gang, knowingly participated in gang related activity, associated with gang members, or even knew gang members. We further note that the condition prohibits lawful conduct: it is not a crime to associate with member of a gang. Indeed, it is not even unlawful to be a nominal or passive member of a gang; rather, section 186.22, subdivision (a) proscribes only active participation in a gang. (People v. Castenada (2000) 23 Cal.4th 743, 747.)
Given the cases noted above and the circumstances of this case, we conclude that the condition prohibiting association with gang members is neither reasonably related to preventing future criminality nor specifically tailored to defendant. In our view, if the probation condition properly could be imposed on defendant to prevent future criminality, then it could be imposed on ever defendant.
The Attorney General offers only perfunctory argument that the condition is valid because it promotes "a law abiding lifestyle." That may be so. However, the Attorney General cites no authority suggesting that a gang condition that limits constitutionally protected freedom of association is proper in the absence of any evidence connecting the defendant, his victim, his offense, or his background to gangs or gang-related activity.
In short, we conclude that the court abused its discretion in imposing it in this case.
IV. DISPOSITION
We modify the probation order to strike the condition that defendant not associate with persons he knows or should reasonably know to be gang members. As modified, the probation order is affirmed.
RUSHING, P.J. WE CONCUR:
DUFFY, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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